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Zukerberg v. District of Columbia Bd. of Elections & Ethics

Court of Appeals of Columbia District

August 21, 2014


Argued May 29, 2014

Appeal from the Superior Court of the District of Columbia. (CAB-8004-13). (Hon. Laura A. Cordero, Trial Judge).

Gary Thompson for appellant.

Richard S. Love, Senior Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for appellee.

Before BECKWITH, EASTERLY, and MCLEESE, Associate Judges.


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Easterly, Associate Judge:

In 2010, the District of Columbia Charter was amended to allow District residents to elect their Attorney General. In this case, the court considered whether that amendment required the first election for the office of Attorney General to be held in 2014. We heard oral argument on May 29, 2014. On June 4, 2014, we issued an order holding that the District must schedule an election in 2014 or, if that is not practically possible, as soon as practically possible in 2015. We thus reversed the trial court's dismissal of the suit brought by Mr. Zukerberg seeking to enforce this requirement, and we remanded the case to the trial court for further proceedings consistent with our decision. To ensure that this court was not the cause of further delay in complying with the 2010 Elected Attorney General Charter Amendment (" the 2010 Charter Amendment" ), we gave only a summary of the reasoning for our holding in the June 4, 2014, order. We now publish this opinion to more fully explain our resolution of the issues presented in this case.

I. The District of Columbia Charter and Its Procedures for Amendment

Before we discuss the 2010 Charter Amendment that created the elected office of Attorney General, we review what the District of Columbia Charter is and how it may be amended.

As its residents are well aware, the District of Columbia is not a state. It is a federal district that was specially created for the seat of our national government by Congress pursuant to powers conferred in Article I of the United States Constitution.[1]

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Article I also gave Congress plenary legislative power over the federal district that became the District of Columbia.[2] How Congress exercised that power to oversee the municipal affairs of the District from the late eighteenth century to the latter half of the twentieth century need not concern us. Thus, we fast forward to 1973 when the District's local government took its current shape with the passage, by Congress, of the District of Columbia Home Rule Act.[3]

The Home Rule Act created the District of Columbia Charter (" the Charter" ),[4] which in turn established a new " means of governance" [5] for the District. Most important for the purpose of this discussion, Congress expressed its " intent . . . to delegate certain legislative powers to the government of the District of Columbia" and to " authorize the election of certain local officials by the registered qualified electors in the District of Columbia." [6] To this end, the Home Rule Act created the current 13-member legislative body, the Council of the District of Columbia, and the elected office of Mayor.[7]

The Charter was not intended to be immutable. Congress, pursuant to its plenary legislative power, retained the ability to amend the newly created Charter through legislation. In addition, Congress authorized a means by which the residents of the District could take matters into their own hands and amend the Charter in a two-step process that required first that their representatives on the Council pass legislation and then that that legislation be " ratified by a majority of the registered qualified electors of the District voting in the referendum held for such ratification." [8]

When the second mechanism to amend the Charter is employed, the Council initiates the process. A bill must first be introduced in the Council by a Councilmember, or by the Mayor or an independent agency[9] through the Council

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Chairperson.[10] This legislation is then considered by the Council in much the same way any bill is considered. The bill is usually assigned to an appropriate committee by the Council Chairperson.[11] Typically the committee will conduct a hearing, at which the Council receives testimony from the public for and against the bill.[12] If the committee wishes to move the bill forward, it will vote it out of committee, generally with a report.[13] The bill is then sent to the Committee of the Whole, which means it is considered by all 13 members of the Council.[14] In order to pass, the bill must " be read twice in substantially the same form, with at least 13 days intervening between each reading." [15] After passage, the bill is sent to the Mayor for his approval or veto.[16] The Mayor may communicate his approval either by signing the legislation or simply by failing to veto it within 10 days of receipt.[17]

At this point in the Charter amendment process, the electorate gets its say via referendum. This referendum is coordinated by the Board of Elections[18] (" BOE" ), which receives legislation seeking to amend the Charter after it has been passed by the Council and approved by the Mayor.[19] The BOE first schedules, publicizes, and holds a public hearing.[20] A primary purpose of this hearing is to formulate for any proposed Charter amendment " [a]n abbreviated and impartial summary statement of no more than one hundred fifty (150) words . . . express[ing] the chief purpose of the amendment" to put on the ballot.[21] This summary statement " shall accurately and impartially reflect the meaning and intent of the proposed Charter amendment and shall not intentionally create prejudice for or against the measure." [22] The BOE then publishes this ballot summary in the District of Columbia Register, along with the legislation that would amend the Charter.[23] The BOE

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also notifies both " the Mayor and the Chairman of the Council, either by personal delivery or by certified mail, of the exact wording of" the ballot summary.[24]

Any registered qualified elector who seeks to " raise any objections [to,] and/or correct any alleged inaccuracies" in[,] the ballot summary may request a hearing before the BOE.[25] Absent a request for a hearing, the ballot summary, " as published by the [BOE] in the D.C. Register, shall be considered to be accepted at the expiration of [a] ten (10) day review period." [26] Even then additional steps are taken before the ballot summary is actually placed on the ballot. The BOE holds another public meeting to certify the ballot summary and announce that the proposed Charter amendment will be brought before voters in an election.[27] After this second public meeting, the BOE publishes in the D.C. Register and in at least two newspapers of general circulation: (1) the entire Act, or the provision of the Act that would amend the Charter; (2) the ballot summary as certified by the BOE; and (3) a statement that the proposed Charter amendment will be presented to voters in an election.[28] Only after this process is completed is the certified ballot summary actually printed on the ballot.[29] This is the language that the voters see when they go to the polls.

If a majority of the voting public votes to ratify the Charter amendment as described in the ballot summary, the amendment is then sent to Congress[30] for a congressional review period applicable to all District of Columbia legislation.[31] If Congress does not act, the Charter amendment enacted by the Council and ratified by the electorate becomes law.[32]

II. Facts and Procedural History[33]

A. The 2010 Amendment to the District Charter

In January 2009, Councilmember Phil Mendelson introduced D.C. Bill No. 18-65, the Attorney General for the District of Columbia Clarification Act. A primary aim of the bill was to amend the Charter to make the position of Attorney General of the District of Columbia an elected, rather than an appointed, position.[34] Because the Council is not empowered to amend the Charter directly, the part of the bill proposing this change (Title II) was effectively a request for Congress to do so. Thus, the text of the bill provided that Title II would " apply upon enactment by Congress." Other aspects of the legislation (e.g., the provisions in Title I setting forth minimum qualifications, a residency requirement, and a four-year term) did not necessitate amending the Charter and simply

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required passage by the Council and passive review ...

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