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SCOLARO v. DC BD. OF ELECTIONS & ETHICS

September 10, 1998

PATRICIA SCOLARO, ET AL., PETITIONERS,
V.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS & ETHICS, RESPONDENT, REBECCA A. SINDERBRAND, ET AL., INTERVENORS.



Before STEADMAN[fn1] and Ruiz, Associate Judges, and Gallagher, Senior Judge. [fn1] Judge Steadman became a member of the division, replacing Judge Ferren, who retired from the court after authoring the court's opinion which referred the case to the special master.

The opinion of the court was delivered by: Ruiz, Associate Judge:

We review a second time this petition challenging the November 5, 1996 election for two Advisory Neighborhood Commissions (ANCs) in Georgetown, *fn1 after having referred [717 A2d Page 893]

the matter to the Superior Court, acting as special master under Superior Court Civil Rule 53(c), (d) and e(1), to conduct a hearing and make findings of fact and reach conclusions of law applying the principles we laid down in Scolaro v. District of Columbia Board of Elections & Ethics, 691 A.2d 77, 91-93 (D.C. 1997). Judge Steffen W. Graae was appointed by the Chief Judge of the Superior Court to perform the requested task. Judge Graae has filed with this court a Report of Special Master dated February 13, 1998; petitioners (Patricia Scolaro and Beverly Jost), intervenors (James L. Fogarty and Rebecca A. Sinderbrand), respondent (D.C. Board of Elections and Ethics) and amicus curiae (American Civil Liberties Union), have submitted supplemental briefing on the special master's Report and presented oral argument to the division. Having considered the Report, the supplemental briefs, and oral argument, we deny the petition to set aside the 1996 election for ANCs 2EO3 and 2EO5.

I.

Jurisdiction; Burden of Proof; Standard of Review

We entertain this petition, and referred the case to a special master, under the special jurisdictional grant of D.C.Code § 1-1315(b) (1992 Repl.), which authorizes the court, upon request by a voter, to review an election and either set aside the certified result and declare the "true result," or void the election in whole or in part. *fn2 Petitioners seek to safeguard their constitutional right to vote against dilution by ineligible votes. See Scolaro, supra, 691 A.2d at 77. Intervenors and respondent, however, claim that the challenged student voters' right to vote is equally at stake and that they fulfilled the statutory requirements for eligibility as electors as evidenced by their duly completed and sworn voter registration forms. As noted in our earlier opinion, the sworn voter registration forms create a presumption of eligibility to vote, which petitioners have the burden to rebut. See id. at 91 (citing Allen v. District of Columbia Bd. of Elections & Ethics, 663 A.2d 489, 495 (D.C. 1995)). Moreover, where the Board has certified an election, the burden of proof also is on the petitioners. See Allen, supra, 663 A.2d at 495 (citations omitted) ("The Board's certification was not conclusive, but was prima facie evidence that the challenged votes were good, and threw the burden of proof on the petitioners."). *fn2

In order to obtain relief, the petitioners' burden is not only to show defects or irregularities in the election; petitioners must prove also that the flawed election led to a result that is not "true," consistent with the statutory admonition that "[t]he Court shall void an election only for fraud, *fn3 mistake, [717 A2d Page 894]

. . . or other defect, serious enough to vitiate the election as a fair expression of the will of the registered qualified electors voting therein." D.C.Code § 1-1315(b) (emphasis added). *fn4

When we referred the case to the special master, we left open the question of what standard of review we would apply to the special master's findings of fact. *fn5 See Scolaro, supra, 691 A.2d at 83, 90. If the special master is viewed as a surrogate for the Board, its findings of fact would be reviewed for "substantial evidence on the record as a whole." See Allen, supra, 663 A.2d at 495. If viewed as within traditional trial court function, or in the role of special master, Judge Graae's findings would be reviewed under the "clearly erroneous" standard. See Super.Ct. Civ.R. 52(a), 53(e)(2). As we consider that Judge Graae's findings of fact meet both standards, we need not resolve which standard applies, assuming there is a substantive difference between the two. See Designers of Georgetown, Inc. v. E.C. Keys & Sons, 436 A.2d 1280, 1281 (D.C. 1981). We also see no need to address the issue at this time as we have been advised by amicus curiae, American Civil Liberties Union, that the Council of the District of Columbia is considering legislation that would provide a Board hearing for election-day challenges, at least by the challenged voter. See Bill 12-499, the "Election Day Challenge Procedural Amendment Act of 1998." It was the fact that there was no express provision in the law for a Board hearing on election-day challenges that persuaded us to refer the matter to a special master in the first place. See Scolaro, supra, 691 A.2d at 90. If the statute were to provide for a hearing at the request of both the challenger and the challenged voter in the event of election-day challenges, it is unlikely that the need for a referral to a special masters will arise. Id. at 91 & n. 17 (referring to need for hearing at request of challenger, not only of challenged voter).

Some of Judge Graae's determinations involve mixed questions of law and fact. We review those determinations under our usual deferential standard of review for factual findings (applying either the "clearly erroneous" or "substantial evidence" standard of review) and de novo review to the ultimate legal conclusions based on those facts.

II.

Proceeding Before the Special Master

Upon referral by this court, Judge Graae conducted two days of a "predicate hearing." At issue during that hearing was the probativeness of the information tendered by petitioners who challenged certain Georgetown University students' residence in the District of Columbia for purposes of eligibility to vote, as required by D.C.Code § 1-1311(a) (1997 Supp.) The trial court allowed petitioners to present, in the first instance, only such evidence as they had and could have presented, had they been permitted to do so, on the day of the challenged election on November 5, 1996. If the evidence thus presented was sufficient to overcome the presumption of residence we have established is raised by a duly signed and sworn voter registration, the special master would hold additional hearings. *fn6 Because the special master concluded [717 A2d Page 895]

that the evidence proffered was insufficient to overcome the presumption of eligibility to vote, no further hearings were held.

Our dissenting colleague agrees with petitioners and amicus curiae that the case must be referred once again to the special master because he failed to do as requested by this court. They argue that the special master was required by our first opinion in this case to conduct an evidentiary hearing with respect to individual challenged student voters. We disagree that the special master misapprehended the terms of our referral. When we referred the case to the special master, we expressly foresaw a predicate hearing in order "to make a generalized review and determination of the number of challenges at issue before the court decides to schedule individual voter hearings." Scolaro, supra, 691 A.2d at 91. We also left it to the special master to "make [a] call in the first instance" on the probativeness of petitioners' proffered evidence challenging the bona fides of the students' claimed D.C. residence. See id. at 92. Further, we requested that the special master resolve "whether, under the circumstances, any challenge shall be entertained in addition to those actually made at the precincts." Id. at 91. The special master followed our guidance and, in light of the applicable presumption and burden of proof, reasonably structured the proceeding so as to provide for individualized hearings and submission of evidence gathered post-election day only in the event that petitioners were first able to hurdle at a predicate hearing, with the evidence they had on election day 1996, the registered students' presumptive eligibility to vote. *fn7

III.

Review of Report of Special Master

Judge Graae's first determination was that all the challenged student voters had duly registered to vote, thus raising the presumption that they were eligible to vote. Judge Graae found, based on the testimony of Alice McCrory-Miller, Executive Director of the Board, that all the students who voted had been properly registered. He also found, based on the testimony of Board member Valerie Burden, petitioner Patricia Scolaro and Westy Byrd, *fn8 that the large Georgetown student voter registration in 1996 was due in part to a national campaign to turn out the student vote *fn8 and in part to a local issue which had galvanized the students: legislation passed during the summer of 1996 restricting their ability to park in Georgetown. *fn8 These fact findings are both [717 A2d Page 896]

supported by substantial evidence of record and not clearly erroneous. We agree with Judge Graae's determination that the students were duly registered, which implicitly rejected petitioners' contention that the challenged students had been misled into registering to vote in the District of Columbia, and that the students were thus presumptively eligible to vote.

Secondly, Judge Graae determined that the Georgetown Student Directory proffered by petitioners as evidence of the students' non-D.C. residence was "devoid of probative value." Specifically, Judge Graae relied on the testimony of the Georgetown registrar that the so-called "permanent address" listed on the Directory is supplied by the University from the student admissions application for its "internal purposes to ensure that a student can be reached [through his or her family] when school is not in session . . . and is not changed unless the student submits a change-of-address form." Judge Graae also noted that the information in the 1996 Directory which petitioners had on election day was more than a year out of date by that time. Id. These factual findings meet the standards of review set forth above. Based on these facts, we conclude that whatever probative value the Georgetown Student Directory had concerning the students' residence was slight indeed, and, in any event, insufficient to overcome the presumption of the student's eligibility to vote. In particular we note that the students' individual sworn voter registration forms completed during the disputed Georgetown Campaign to register students in the spring and fall of 1996 superseded the information from which the 1996 Directory was compiled.

Thirdly, Judge Graae similarly determined that the "freshman list" *fn9 which, in the words of petitioners, provides out-of-town "permanent addresses" and identifies university housing in the District as "temporary," "has no more probative value than the 'permanent address' listing in the Directory" and thus "does not overcome the presumption of D.C. domicile inherent in a properly signed voter registration form." Specifically, Judge Graae noted that all freshmen who do not reside with their parents in the Washington metropolitan area are required by university policy to reside in a dormitory. Thus, we agree with Judge Graae's conclusion that a first-year student's residence in ...


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