District’s attorney general doubts legality of budget autonomy referendum

January 6, 2013

The District’s attorney general, in a rare challenge to city officials’ power to put issues before voters, has asked election officials to consider rejecting a proposed ballot referendum that could give the city more budget freedom from Congress.

In a letter sent Friday, Irvin B. Nathan told the Board of Elections that he has “serious reservations about the legality” of amending the D.C. Charter to grant budget autonomy by popular vote. The warning mirrors concerns raised earlier by Nathan’s office.

But Nathan’s missive comes after the D.C. Council in December unanimously authorized the referendum — and after Mayor Vincent C. Gray (D), who appointed Nathan and also expressed similar reservations about the vote, signed the authorization into law.

The move has infuriated backers of the referendum, a legally controversial strategy but one that could give the city more control over its spending.

Walter Smith, executive director of the D.C. Appleseed Center for Law and Justice, which has helped muster legal arguments in support of the referendum, called Nathan’s letter “puzzling.”

In a letter sent Friday, Irvin B. Nathan told the Board of Elections that he has “serious reservations about the legality” of amending the D.C. Charter to grant budget autonomy by popular vote. The warning mirrors concerns raised earlier by Nathan’s office. (Bill O'Leary/WASHINGTON POST)

“This is not good for the District government to display this kind of dissension,” he said. “I think there’s some schizophrenia in the mayor’s office. If he didn’t think this was lawful, the mayor should not have signed this.”

But Nathan said in his letter that he was acting not on behalf of the Gray administration but “as an independent Attorney General charged with the responsibility of attempting to ensure that the District adheres to the rule of law.”

Using the referendum, which is scheduled for the special election on April 23, to achieve budget autonomy, Nathan argues, would exceed the powers granted to the city and its voters in the charter. Should the referendum pass, he added, the city would risk violations of federal law.

Attorneys retained by D.C. Appleseed and D.C. Vote, a voting-rights advocacy group, have argued that the city is within its rights under the charter to change its budgetary process via referendum. The D.C. Council found those arguments persuasive; its own top lawyer adopted several of their arguments, and members voted to authorize the referendum without significant debate.

Council Chairman Phil Mendelson (D) said he was “annoyed” by the letter and said it been “clouded” by Nathan’s service as general counsel to the House of Representatives from 2007 to 2011.

“I think that’s coloring his perspective on this,” Mendelson said. “Congress did not restrict our ability to legislate in this area. They did restrict our ability to legislate in other areas.”

The issue will come to a head Monday morning, when the Board of Elections hears testimony on drafting ballot language for the referendum.

Nathan said in his letter that he would appear to personally register his concerns; Mendelson said Friday he also plans to testify.

There is a dispute over whether the board has the authority to reject a charter amendment referendum that has been authorized by the council.

While elections officials are empowered to review voter-initiated measures, attorneys for D.C. Appleseed point to a 2000 board opinion that found that no provision in the charter “even remotely” allows the board to question a measure placed on the ballot by the council.

Nathan, in his letter, said the board can undertake an “independent review” of any charter amendment’s legality.

Barring that, he wrote, the board should include ballot language noting that “serious legal concerns have been raised about the validity of the amendment” and that it could result in Congress overturning the amendment or in “extended litigation and uncertainty about the validity of the District’s budget.”

Ted Gest, a spokesperson for Nathan, had no comment beyond the letter, but he noted that it was sent after the board’s chief attorney asked the attorney general’s office to weigh in on the referendum.

Backers of the referendum effort have argued that the legal concerns have been exaggerated and that the strategy offers the best chance of avoiding congressional gridlock and potentially noxious amendments. At a council hearing, former representative Thomas M. Davis III, a Republican, said that it was unlikely Congress would intervene should the referendum move forward.

“There are lawyers for it, there are lawyers against it,” said James Jones, a D.C. Vote spokesman. “We believe that we have an opportunity for the people of the District of Columbia to speak on this issue and actually get budget autonomy. We are going to press forward.”

Mike DeBonis covers Congress and national politics for The Washington Post. He previously covered D.C. politics and government from 2007 to 2015.
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