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Scolaro v. District of Columbia Board of Elections and Ethics

June 14, 2000

PATRICIA SCOLARO, ET AL., PLAINTIFFS,
v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, ET AL., DEFENDANTS.



MEMORANDUM OPINION

This case arises from events surrounding the 1996 election of Advisory Neighborhood Commissioners ("ANC Commissioners") in Georgetown, a neighborhood in the District of Columbia. Presently before the court are the following motions: defendants District of Columbia's ("District") and District of Columbia Board of Elections and Ethics' ("Board") combined motion to dismiss; intervenors' motion to dismiss; plaintiffs' motion for summary judgment; and plaintiff Westy Byrd's motion to reconsider this court's November 27, 1996 Order (the "Order") dismissing with prejudice her claim for injunctive and declaratory relief. Upon consideration of the motions and the oppositions thereto, the court concludes that defendants' motion to dismiss should be granted; intervenors' motion to dismiss should be granted; plaintiffs' motion for summary judgment should be denied as moot; plaintiff Byrd's motion to reconsider should be denied; and this case should be dismissed.

I. BACKGROUND

Plaintiffs Patricia Scolaro, Beverly Jost, and Westy Byrd are registered voters of the District who ran for ANC positions in the November 5, 1996 general election. *fn1 During the summer preceding the election, at the urging of plaintiff ANC Commissioners and others, the District ceased its long-standing practice of exempting from its motor vehicle registration requirement students attending Georgetown University ("GU") and George Washington University ("GWU"). Early that fall, the students responded by organizing voter-registration drives to increase the number of students registered to vote in the District. Two GU students, intervenors James Fogarty and Rebecca Sinderbrand, registered to vote in the District and qualified as candidates for two ANC positions.

In response to the voter-registration drive, plaintiff Byrd circulated to students a flyer that stated as follows:

If you register to vote in D.C., you will become a legal resident of D.C. As a [r]esident of D.C.,

1. you must pay D.C. income tax[;]

2. you may lose any grant money from your home state[;]

3. you must obtain a D.C. driver's license[;]

4. you must register your car in D.C. Any Zone 2 sticker you have would be revoked. Am. Compl. ¶¶ 23-24.

After plaintiffs determined that GU students living in the three single-member ANC districts in west Georgetown had submitted more than 800 new voter-registration applications, plaintiff Byrd wrote to the Board, seeking an immediate investigation. Board Chairman Wilson responded by stating that the Board would schedule a hearing to determine whether Byrd's circulation of the flyer and writing of the letter constituted voter intimidation.

The elections took place on November 5, 1996. Plaintiffs' poll-watchers issued numerous challenges to student voters, the details of which are chronicled in two lengthy opinions issued by the District of Columbia Court of Appeals ("DCCA") and need not be recounted here. See Scolaro v. District of Columbia Bd. of Elections and Ethics, 717 A.2d 891 (D.C. 1998) ("Scolaro II"); Scolaro v. District of Columbia Bd. of Elections and Ethics, 691 A.2d 77 (D.C. 1997) ("Scolaro I"). After all of the ballots were counted, the Board determined that intervenor Sinderbrand had defeated plaintiff Scolaro by five votes; that intervenor Fogarty had defeated plaintiff Jost by 235 votes; and that plaintiff Byrd had won her district.

Plaintiffs filed this federal-court suit on November 22, 1996. Three days later, plaintiffs filed in the DCCA a Petition for Review of the November 5 th election. In an order issued November 27 th , this court, per Judge Oberdorfer, ordered that plaintiffs' vote-dilution and due process claims be stayed pending the resolution of proceedings in the District's local courts and that plaintiff Byrd's claim for declaratory and injunctive relief relating to the threatened Board hearing be dismissed with prejudice. See Scolaro v. District of Columbia Bd. of Elections and Ethics, 946 F. Supp. 80 (D.D.C. 1996).

In January 1997, the Board convened a hearing regarding plaintiff Byrd's pre-election activities, including her circulation of the flyer. After hearing testimony for two days, the Board decided to refer the matter to the United States Attorney of the District for possible criminal prosecution. The United States Attorney declined to prosecute.

Meanwhile, in their suit in the District's local courts, plaintiffs pressed the following principal contentions:

1. The Board's voter registration form is invalid under the election statute, D.C. Code § 1-1311(a)(2) (1996 Supp.), and the Constitution.

2. In allowing hundreds of local college students to register to vote, the Board failed to perform its statutory duty under § 1-1302(16) and § 1-1311(a) of the election statute to screen out, on its own initiative, unqualified electors-a failure that resulted in the unconstitutional dilution of petitioners' votes.

3. By allowing virtually all student registrants to vote in spite of petitioners' efforts to challenge their voter qualifications, the Board denied petitioners their constitutional right to due process. Scolaro I, 691 A.2d at 83.

The DCCA rejected the first two contentions and referred the third to the Superior Court, acting as special master, for fact-finding. *fn2 See id. After reviewing the special master's report, supplemental briefs, and oral argument, the DCCA denied plaintiffs' petition to set aside the results of the 1996 election. See Scolaro II, 717 A.2d at 892. On January 21, 1999, the DCCA issued an order denying plaintiffs' petition for a rehearing en banc. See Scolaro v. District of Columbia Bd. of Elections and Ethics, No. 96-1738 (D.C. Jan. 21, 1999).

Plaintiffs then returned to this federal district court, filing on May 27, 1999, their First Amended Complaint ("Amended Complaint"). In their Amended Complaint, plaintiffs raise six claims for relief. Plaintiffs' first claim for relief is based on the theory that the DCCA's construction of the District's election statute deprives them of their Fifth Amendment right to due process of law. Plaintiffs' second claim for relief is based on the theory that the Board's special ballot procedures deprive them of their rights to due process of law and to undiluted votes. Plaintiffs' third claim for relief is based on the theory that "the Board's application of the irrebuttable presumption of residence to plaintiffs' attempts to challenge unqualified voters-as subsequently approved by the [DCCA]-" violates their right to undiluted votes. *fn3 Plaintiffs' fourth claim for relief is based on the theory that the District's local mail-in voter registration form and "motor-voter" registration form do not comply with the requirements for federal elections imposed by the National Voter Registration Act of 1993, 42 U.S.C. §§ 1973gg et seq. Plaintiffs' fifth claim for relief is based on the theory that the Board's alleged practice of destroying administrative affidavits regarding special ballots after those ballots have been counted violates 42 U.S.C. §§ 1974 and 1974a. Plaintiffs' sixth claim for relief consists of plaintiff Byrd's action for a declaration that she did not engage in voter intimidation; this claim is also the subject of Byrd's motion for reconsideration of Judge Oberdorfer's order dismissing this claim with prejudice.

Presently before the court are intervenors' and defendants' motions to dismiss the Amended Complaint for lack of subject-matter jurisdiction and for failure to state a claim upon which relief may be granted; plaintiffs' motion for summary judgment; and plaintiff Byrd's motion for reconsideration of Judge Oberdorfer's order dismissing with prejudice her claim for declaratory relief.

B. Summary Judgment

Under Rule 56, a motion for summary judgment should be granted only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party's "initial responsibility" consists of "informing the [trial] court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate ...


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