Petition for Review of the Certification by the District of Columbia Board of Elections and Ethics of the Results of the May 2, 1995 Special Election in Ward 8.
Before Steadman, Schwelb, and Reid, Associate Judges.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge : In this case, we must resolve a controversy over an extraordinarily close election. Following an evidentiary hearing, the District of Columbia Board of Elections and Ethics held that Eydie Whittington was the victorious candidate, by a single vote, in the May 2, 1995 special election to choose a member of the Council of the District of Columbia for Ward 8. That seat had become vacant when the former Councilmember from that ward, Marion Barry, was elected Mayor.
Ms. Whittington's principal adversary, petitioner Sandy Allen, together with petitioners Walter Glover and Roderick Liggens, two residents of Ward 8 who supported Ms. Allen's candidacy, have asked this court to review the Board's decision. Petitioners request that Ms. Allen be declared the winner of the election or, in the alternative, that the court order a new election or a run-off between Ms. Whittington and Ms. Allen, the two candidates who received the greatest number of votes.
Although petitioners challenged the qualifications of several additional voters in the proceedings before the Board, their only substantive claim *fn1 in this court is that four named individuals voted "fraudulently" and illegally, that their ballots should not have been counted, and that without their votes Ms. Whittington would not have been victorious. Finding no error in the Board's Conclusion that petitioners failed to prove their allegations, we affirm.
This election was so close that, even aside from the alleged irregularities, it was impossible for a considerable period of time to determine who had won in the official count. The initial unofficial tabulation of the ballots reflected that Ms. Allen had prevailed by one vote. After the "special" ballots and absentee ballots had been tabulated, however, Ms. Whittington was declared to be the winner by two votes.
Ms. Allen demanded a recount and, on May 15, 1995, a Judge of the Superior Court entered an order restraining the Board from certifying Ms. Whittington as the winner of the election until seven days after a recount had been completed. On May 18, 1995, the requested recount was duly conducted. Ms. Whittington's margin shrank by 50%, but she was declared to be the victorious candidate, now by one vote.
Petitioners asked the Board to stay its certification of Ms. Whittington's victory. They alleged, inter alia, that a number of persons ineligible to vote in Ward 8 had cast ballots in the election. The Board declined to stay its decision, and Ms. Allen and her supporters immediately filed a petition for review in this court and requested the court to stay the Board's order.
On May 24, 1995, this court issued an interim stay to enable it to consider the issues before it. On May 30, 1995, after further consideration, the court vacated the stay, explaining that it was doing so in order to provide the residents of Ward 8 with representation on the Council. In its order, the court directed the Board to consider, on an expedited basis, the factual and legal issues raised by petitioners.
On June 7, 1995, the Board held an evidentiary hearing in which counsel for the Board, for petitioners, and for Ms. Whittington as intervenor all participated. On June 13, 1995, the Board held in a written decision that petitioners had failed to prove any of their allegations by a preponderance of the evidence. *fn2 Petitioners now challenge that ruling.
At the Board's evidentiary hearing, counsel for petitioners framed her opening statement in dramatic terms:
I cannot stress the magnitude of the Board's burden in this proceeding. This is a case of election theft. We [will present] evidence that people outside of Ward 8 are trying to steal this election, trying to deny Ward residents their true voice in the City Council.
Petitioners' in other words, were not alleging that innocent errors by the Board or by individual voters had cost Ms. Allen the election. On the contrary, they claimed before the Board, and continue to maintain in this court, that the Whittington camp had engaged in a pattern of fraudulent conduct to obtain the seat on the Council which rightfully belonged to Ms. Allen.
Petitioners attempted to redeem the promise in counsel's opening statement with proof that nine persons, several of them associated with the Whittington campaign, had illegally cast ballots although they were not residents of Ward 8. Petitioners have, however, now abandoned their previous claims as to five of the nine voters. *fn3 Petitioners' position in this court is that the Board erred in holding that their proof failed with respect to four voters, namely Walter Masters, Anthony Richardson, Lolita Senn, and Charles Ashmon.
Petitioners' principal witness at the hearing was retired Detective Dan L. Dazzo, who served for many years with the Metropolitan Police Department, but who is now a private investigator. Dazzo's firm was retained by the Allen campaign to investigate allegations of voting by unqualified persons. Dazzo testified at some length regarding the investigation which he conducted.
The Board in its written opinion, and individual members of the Board at the hearing, expressed some reservations as to Dazzo's persuasiveness and credibility as a witness, in part because he relied for some of his assertions on sources whom he declined to identify, *fn4 and in part because, by selectively disclosing information to persons whom he interviewed, he may have ...