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SCOLARO v. DC BD. OF ELECTIONS & ETHICS

District of Columbia Court of Appeals.


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 university housing is not sufficiently probative of the student's domiciliary intent to overcome the presumption that a duly registered student voter was qualified to vote.

In addition to the two documents that petitioners had on election day in 1996, Judge Graae considered evidence that certain students, upon being asked for identification at the polls, had presented out-of-state driver's licenses. Judge Graae determined that the driver's licenses, without more, were not probative of domiciliary intent unless they had been obtained after the student's registration to vote in the District of Columbia. No record was made by petitioners, who bear the burden of proof, see Scolaro, supra, 691 A.2d at 91, of the details of the student's out-of-town driver's licenses on election day. We agree with Judge Graae's conclusion on this point as well. *fn10 [717 A2d Page 897]

We fully agree with Judge Gallagher's observation that "underlying all aspects of this petition, a delicate balancing of rights is required." See post at n. 3. As we have already decided, however, that balance is tilted, in the first instance, in favor of the registered voter because, as Judge Gallagher recognizes, "every voter has a right to cast an unquestioned and unintimidated ballot [and][t]here should be a real barrier for a challenger to cross before voters can be brought to court to defend the exercise of their franchise." Id. Our dissenting colleague does not contend that that barrier was crossed by petitioners, the challengers in this case, but that they were not given a fair opportunity to meet their burden. We do not see how testimony from a sampling of students, not intended to explore their individual domiciliary intent, as proposed by the dissent, would have been more useful to the special master's task concerning the probative value of the Georgetown Directory proffered by petitioners than the testimony of the Georgetown registrar, who compiled the directory in the first place. See id. at 902. Nor do we understand why the special master should have initiated subpoenas to a random selection of students to query them about the alleged misinformation campaign aimed at Georgetown students to induce them to register to vote, in the absence of any evidence from the petitioners that a single student's voter registration was, in fact, the product of a misinformation campaign. See id. at 903. Moreover, petitioners do not contend that they requested that specific students be subpoenaed. The criticism of the special master for failing to subpoena students, therefore, transfers the burden from the petitioners to the special master.

In sum, none of petitioners' evidence overcomes the student voters' presumptive eligibility to vote. *fn11

IV.

The Fourteen Special Ballots in Petitioner Scolaro's District

Petitioners argue that the special master's Report failed to address their complaint that the Board "unlawfully precluded [Scolaro's] poll watchers from challenging fourteen students who voted by special ballot." This issue is "critical," the petitioners contend, "because Mrs. Scolaro had narrowly carried the vote [for District 2E03] through the counting of the 'machine' and absentee ballots and only the special ballots reversed the outcome by five votes." *fn12 The substance of the challenge is that even assuming these fourteen students who voted by special ballot for ANC District 2E03 were residents of the District of Columbia, their ballots should not have been counted because they either did not reside in that particular ANC District or they were otherwise not properly registered to vote. We would be compelled to remand the case for further findings of fact and conclusions of law if challenges to these fourteen votes were raised by petitioners and ignored by the special master to their prejudice. See Burwell v. Burwell, 700 A.2d 219, 225 (D.C. 1997) (concluding that "meaningful appellate review cannot occur" where the trial court failed to address or rule on an issue properly raised by the plaintiff). *fn12 [717 A2d Page 898]

Petitioners cite to the hearing transcript to support their contention that this issue was raised in testimony before the special master, and before this court submit an "Appendix B" which lists the fourteen voters by name along with the "reason for attempted challenge." Having combed through the record before Judge Graae, we conclude that the challenge to five of the fourteen special student ballots listed on Appendix B was not presented to the special master. *fn13 Therefore, we do not consider the challenge to these five voters. See Allen, supra, 663 A.2d at 495. With respect to the remaining nine challenged special student ballots which arguably were raised before the special master, the undisputed facts presented indicate that the sole questionable ballot was not counted and, therefore, did not impact the outcome of the election. See D.C.Code § 1-1315(b). Thus, even though the Report does not address the challenge to the special ballots cast in District 2E03, there is no need to remand the issue for consideration by the special master.

We turn first to the individual voters listed on petitioners' Appendix B presented to this court to determine whether the challenge was first raised before the special master in Exhibit 49. Five of the fourteen names on Appendix B were not listed on Exhibit 49. Two of those five, *fn14 however, were challenged based upon their "permanent address" listings in the Georgetown University Student Directory (Petitioners' Exhibit 44). We have already agreed with the special master that the Directory was insufficient to overcome the presumption of a registered voter's residency in the District of Columbia. Two other names *fn14 of those five in Appendix B not included in Exhibit 49 were not listed in any other document in the record, and we thus lack the means to determine whether challenges to their votes were raised but ignored by the special master. See Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C. 1982) (holding that the appellant bears the burden of convincing this court that the trial court erred, and must meet that burden with "a record sufficient to show affirmatively that error occurred"); see also In re O.M., 565 A.2d 573, 578 n. 11 (D.C. 1989) ("Evidence, no matter how relevant or probative, cannot be introduced for the first time at the appellate level."). The challenge to the last of the five names *fn14 in Appendix B which was not included in Exhibit 49 before the special master, is based upon a special ballot envelope which is attached to the petitioners' submission to this court, but lacking any citation to the record below, is similarly unreviewable. *fn14 See id.

We turn, therefore, to consider petitioners' challenge to the nine remaining names listed on Appendix B which were included in Exhibit 49 before the special master. [717 A2d Page 899]

Alice McCrory-Miller testified regarding the results of her staff's inquiries into each named challenged voter or category of challenged registrants listed on Exhibit 49 presented to the special master. In the case of each of the nine named voters on petitioners' Appendix B submitted to this court who were also listed on Exhibit 49, McCrory-Miller testified that the Board had investigated and either verified the validity of the challenged vote, or determined that it had not been counted in arriving at the election result.

The special ballot of one of these voters *fn15 was found invalid by the Board and not counted. Another of the nine voters *fn15 was challenged before the special master because her registration was processed before it was signed, but McCrory-Miller testified that the voter had merely changed information provided on a prior valid registration card. Two of the nine voters *fn15 were challenged before the special master because they "registered at a University post box that should have expired," but McCrory-Miller testified that the Board had a numbered street address for each of them.

The five remaining voters *fn16 listed on Appendix B whose challenge was presented to the special master in Exhibit 49 were challenged under the category, "signed registration application in spring, listing a University post box as the DC address." McCrory-Miller testified that the voters from this list who cast special ballots filled out new voter registration applications at the polls, and that "[t]hey all list Georgetown University as an address and a P.O. Box in some cases." McCrory-Miller explained that Georgetown University provided the Board with the information necessary to match University post office box numbers to their corresponding dormitory addresses which the Board was then able to place in the correct single member ANC districts.

Counsel for petitioners cross-examined Miller at length about the procedure for challenging the special ballots cast, and questioned her about the sufficiency of a Georgetown University post office box address for the purpose of determining the appropriate single member district. Petitioners proffered no specific evidence disputing McCrory-Miller's testimony regarding any of the individual voters listed on Appendix B, nor any of the categories of challenged registrants listed on Exhibit 49.

Based on the record, we need not decide whether the special master erred in failing expressly to address in his Report the challenges to the special ballots cast by the nine voters listed in Appendix B who were also challenged before the special master in Exhibit 49, see Burwell, supra, 700 A.2d at 225. Any such error is harmless in light of the uncontroverted evidence in the record before the special master that the eight voters whose votes were counted were properly registered in ANC single member district 2E03, and thus, the outcome of the election in Scolaro's single member district would be unaffected. See D.C.Code § 1-1315(b).

For the reasons stated above, the petition to set aside the elections and to refer the case to the special master for further hearings is

Denied.

This is a civil rights case, involving the right to vote, that arose in the Georgetown neighborhood of this city which adjoins the Georgetown University campus. At the root of this proceeding is the competition for street car parking spaces between those in Georgetown homes and the many students [717 A2d Page 900]

with cars living in the area, mostly in the University dormitories.

In this city there are what is known as Advisory Neighborhood Commissions ("ANC"), each being confined to the area of the particular neighborhood. Apparently because of the car parking competition with the home residents, there arose on the Georgetown campus a movement to register students to vote in the local election in order to gain political control of the local ANCs and then gain assistance legislatively on parking requirements in Georgetown. This dispute involves the legal requirement that before one may be entitled to vote in the District of Columbia, in local elections or otherwise, one must be a resident (domiciliary) of the jurisdiction. *fn17

In our first review of this petition, we recognized that, as a result of the fundamental importance of the right to vote, and the due process requirements attendant, "when a challenger loses a voter registration challenge before the Precinct Captain and wants a review of that decision, the challenger . . . must be afforded an evidentiary hearing unless the issues raised can be disposed of directly by this court as a matter of law. . . ." Scolaro v. District of Columbia Bd. of Elections & Ethics, 691 A.2d 77, 88 (D.C. 1997). The court concluded that the record was deficient and we therefore could not dispose of the petition as a matter of law; I joined the original majority in referring this petition to a special master for the purpose of conducting a fact-finding hearing. Id. at 90, 95.

The principal reason the court remanded to a special master for fact-finding instead of to the District of Columbia Board of Elections and Ethics, where remands by this court in voter election proceedings would be expected to go, was the vital reason that the election Agency does not have the statutory power to subpoena witnesses, specifically student witnesses, which the court considered necessary to conduct the fact-finding hearings envisioned here. Id. at 90. The court, therefore, directed that the proceeding be instead remanded to the trial court for appointment of a trial judge as a special master, who would possess full subpoena powers to compel testimony. Id. Unfortunately, on the record now before this court, the special master did not adequately utilize his fact-finding powers, and this court's effort went almost for naught.

I believe that, as a matter of law, the special master did not sufficiently address the circumstances surrounding the election at issue here, as required by this court's opinion and petitioners' due process rights, and I would remand this proceeding to the special master for further fact-finding in order to comply with the instructions in this court's remand.

I.

In remanding these proceedings to the special master, this court directed that

At every challenge hearing, . . . counsel for petitioners, who bear the burden of persuasion, must confront each student voter with evidence that puts the voter's District of Columbia residence on election day in doubt.

Scolaro, supra, 691 A.2d at 92. The court then noted that petitioners had proffered the 1995-1996 Georgetown University Telephone Directory and a compilation of first-year students, which both listed most students as having "permanent" addresses outside of the District of Columbia, as sufficient to overcome the initial presumption of District of [717 A2d Page 901]

Columbia residency established by a properly executed voter registration form. *fn18 Id. We gave the trial court discretion to determine whether the proffer was in fact sufficient. Id.

On remand, the special master limited the scope of the hearing to a determination of whether the evidence in petitioners' possession on Election Day was sufficient to overcome the presumption of regularity. Because the challenges at issue were, for the most part, founded on information taken from the Georgetown student directory and "freshman lists," the hearing and subsequent report of the special master centered on the probative value of that information. There were, however, two errors in the special master's approach: (1) the special master did not hear any student testimony in the effort to resolve the issue of whether the directory and freshman compilation were sufficiently probative to overcome the presumption of regularity; and (2) the special master did not adduce student testimony on the potential effects of widespread misinformation regarding voter qualification requirements which was distributed to Georgetown University students prior to the election and could have polluted the election process at issue.

A.

As this court has repeatedly recognized, "Due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (quoted in Brown v. United States, 682 A.2d 1131, 1139 (D.C. 1996)). "The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.' " Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). This due process requirement is especially important when dealing with such a fundamental right in a democracy as the undiluted exercise of a resident's right to vote. "[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action." Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) (quoted in Morrissey, supra, 408 U.S. at 481, 92 S.Ct. 2593); see Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) (right to an undiluted vote is fundamental). Here, the fundamental question for resolution was whether the right to vote of petitioners was diluted illegally, thus resulting in a deprivation of the right to vote by many voters. This is a very serious issue, needless to say.

B.

The first problem for consideration is the special master's conclusion that the Georgetown directory and the "freshman list" were "devoid of probative value," (emphasis added) and that they therefore did not "overcome the presumption of D.C. domicile inherent in a properly signed voter registration form." I believe that, as a matter of law, the special master did not conduct adequate fact-finding to reach those conclusions. I would remand the petition for further hearings, that included testimony by at least a representative sample of the challenged student voters, in order to enable the required fact-finding.

In our original opinion, we noted that "[w]e have not seen th[e] directory or compilation and, absent proper fact-finding, are not in a position to say whether they have the probative value petitioners claim or not," and we instructed the special master "to make that call in the first instance." Scolaro, supra, 691 A.2d at 92. But based entirely on the deposition testimony of Georgetown University Registrar John Q. Pierce, the special master determined that "it is clear that no intent can be inferred" from the "permanent address" listing in the Georgetown Directory, and that with regard to the freshman compilation, [717 A2d Page 902]

"the fact of campus residence has no more probative value of intent than the 'permanent address' listing in the Directory." So nothing was "probative," we are told.

The special master attached considerable weight to Registrar Pierce's testimony that the directory information was more than a year old, and that the permanent address listings were taken from the student admissions application and were not changed unless the student submitted a change-of-address form. Curiously, the special master also gave much weight to the Registrar's own conclusion that "this 'permanent address' listing is not indicative of the domicile of the student . . ., but is an address maintained for the University's internal purposes to ensure a student can be reached when school is not in session."

Unfortunately, the special master's findings are fatally flawed. The issue we left to the special master was whether the directory and freshman compilation were sufficiently probative of the students' residence to overcome the automatic presumption of regularity created by a properly executed voter registration form. I fail to see why testimony on the University's policy and procedures for creating and using the directory resolves the issue of whether the directory is probative of the students' domiciliary intent.

Our instruction to the special master to review the directory and freshman compilation was set in the context of a discussion centered on ensuring that the fact-finding body would have the power to subpoena students, see Scolaro, supra, 691 A.2d at 90-93, and it was implicit in the court's opinion that the fact-finding on remand would require such student testimony. It necessarily implied that at least a representative sample of students should testify as to their understanding of the "permanent address" listing in the directory. To my thinking, there is no better evidence to establish the probative value of the student directory and freshman compilation than student testimony regarding their intent in listing permanent addresses outside of the District of Columbia, this intent being necessary to determine domicile for voting purposes. *fn19 It is a student's intent on domicile not the viewpoint of the University Registrar that controls. As the prior opinion noted, "For an evidentiary hearing on a voter registration challenge to produce adequate fact-finding, the challenged voters must appear." Id. at 90.

The majority claims that it is confused at how "testimony from a sampling of students, not intended to explore their individual domiciliary intent, . . . would have been more useful to the special master's task . . . than the testimony of the Georgetown registrar, who compiled the directory in the first place." See supra at 897. Their confusion stems, I think, from a misreading of this dissent. I am not proposing that the students testify directly to the probative value of the Georgetown Directory, as the majority seems to imply, but rather that a sampling of students should testify to their individual domiciliary intent, and that their testimony should be incorporated into an analysis of the probative value of the directory. The students are the only witnesses capable of testifying to their own domiciliary intent, and that intent is controlling in this matter.

Also, I think the above-quoted majority language is in direct conflict with the court's prior opinion on remand. As I have discussed, this case was remanded to a special master in the Superior Court, instead of to the election Agency, so that the fact-finder on remand would have authority to subpoena student testimony. The prior opinion, in no [717 A2d Page 903]

uncertain terms, declared that for the fact-finding hearing to be adequate, "the challenged voters must appear." Scolaro, supra, 691 A.2d at 90. The majority here, however, appears content to supplant that testimony with the conjectural musings of the University Registrar, who is wholly unqualified to shed light on the individual domiciliary intent of the challenged student voters.

C.

The second issue for consideration is the lack of student testimony on the issue of potentially disturbing misinformation distributed to Georgetown University students prior to the election. The special master's concentration on the issue of the probative value of the student directory and freshman compilation was done at the expense of evidence that suggested that the students may have been operating under distributed false information regarding domicile before registering. As a matter of law, I would remand for additional findings that consider the effect of the totality of the circumstances surrounding the election in a determination of whether petitioners' challenges overcame the presumption, created by a properly executed voter registration form, that the students were qualified to vote in this jurisdiction.

Petitioners' supplemental brief relates evidence, presented at the hearing, which suggests that Georgetown University students may have been affected in their decision to register to vote by misinformation distributed before the election. Specifically, petitioners note: (1) misleading statements made by the organizers of Campaign Georgetown, the student voter registration drive, in the student newspapers informing students that registering to vote in the District of Columbia "has no effect on your state of residency, vehicle registration, financial aid or driver's licenses. It means one and only one thing: you can vote in the district on Nov. 5;" and (2) misleading statements made by Campaign Georgetown workers at voter registration tables to the effect that voting in the District of Columbia did not affect residency. The American Civil Liberties Union ("ACLU"), who because of serious concerns about the democratic process in this election commendably submitted a brief and participated in oral arguments as amicus curiae on this appeal, pointedly argued the point before this court:

And as we looked into this, Your Honor, we were able to discover that the leaders of this registration drive [Campaign Georgetown] were in fact emphatically telling students that they should register here in D.C. and that it made no difference if they did that as to where they paid their taxes, where their car should be registered, where their driver's license should be. . . . So on election day the challengers had . . . very good reason . . . for believing that some of these students . . . had in fact improperly registered. Not that they were involved in intentional fraud . . . [but] because they had been told, and [the] people who told them honestly believed it. They were just wrong.

There is an indication that misleading information may have caused hundreds of students to register to vote under the impression that it would not affect their residency. *fn20 At the very least, the special master should have examined the effect of the misleading information on the minds of student voters. Again, the testimony of a representative sample of students would be essential to this determination. *fn20 Because the special master [717 A2d Page 904]

failed to explore and consider the effect of the misinformation, there was not an adequate hearing.

The majority's contention that there is an "absence of any evidence from the petitioners that a single student's voter registration was, in fact, the product of a misinformation campaign," see supra at 897, misses the point. Due process requires protections suited to the particular circumstances of a case. See Morrissey, supra, 408 U.S. at 481, 92 S.Ct. 2593. The unique nature of this election, in which hundreds of students suddenly altered their jurisdiction of domicile after receiving misinformation about the effect of the change, requires that this court and the fact-finder on remand provide sufficient due process protection and consideration before determining that the misinformation was constitutionally harmless. In light of the narrow hearing held on remand, it is not surprising that petitioners have not come forward with specific evidence of the effect of the misinformation.

II.

The special master's restrictive and overly focused report does injustice to the requirement that due process protections must accommodate the peculiar circumstances of cases. See Morrissey, supra, 408 U.S. at 481, 92 S.Ct. 2593. As a matter of law, the special master did not conduct a sufficiently searching review, and I think that the appropriate response by the court should have been a remand for further fact-finding. A review of the integrity of the electoral process in the Nation's Capital should not be so readily accommodated.

"The 'right to be heard before being condemned to suffer grievous loss of any kind . . . is a principle basic to our society.' " Mathews, supra, 424 U.S. at 333, 96 S.Ct. 893 (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)). The negation of a qualified citizen's vote is a grievous loss, and when multiplied, as here, is a serious community issue. I expected that the claim of such a deprivation would lead to a more intensive review of the circumstances presented here in the electoral process than the proceeding conducted on remand and on review now being accepted as adequate by this court. For that reason, I respectfully dissent.

GALLAGHER, Senior Judge, dissenting:


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