Rabbi’s lawsuit to extend D.C. special election is denied

April 15, 2011

This month’s D.C. special election will not be extended to accommodate Jews observing Passover, a federal judge ruled Friday.

A District rabbi, Shmuel Herzfeld of Ohev Shalom — the National Synagogue, sued the city elections board Wednesday, claiming that many of his congregants would not be able to participate in the April 26 vote, which falls on the final day of Passover. Under strict interpretation of Jewish law, writing or using an electronic device is forbidden until 8:40 that evening; polls are set to close at 8 p.m.

But U.S. District Judge Emmet G. Sullivan found that the D.C. Board of Elections and Ethics had given observant Jews sufficient voting options. The board has offered early voting at its downtown headquarters since April 11; voters can also request an absentee ballot in the special election for seats on the D.C. Council and the State Board of Education.

Given those alternatives, Sullivan said in a bench ruling, the city “imposes only a limited burden” on Herzfeld’s right to vote. Sullivan said while he was “profoundly sympathetic” to the rabbi’s desire to vote at his local polling place, that desire was not constitutionally sufficient to affect the election.

Herzfeld said the board’s refusal to change the date or extend voting hours was tantamount to “excluding observant Jews as a class. . . . It’s a terrible precedent.” But he said he was pleased by the ruling because it allowed him to continue his lawsuit, which claims his constitutional rights were violated.

“I bet you a billion dollars that if this election were on Christmas, we wouldn’t be having this discussion,” he added.

An elections board attorney, Rudolph McGann, told Sullivan that the board had no choice under city law but to schedule a special election for the first Tuesday 114 days after a vacancy is certified.

Sullivan asked whether the board would be prepared to schedule an election for Christmas.

“We would have to schedule it on Christmas Day,” McGann said. “It’s not personal with respect to Passover.”

Board spokeswoman Alysoun McLaughlin said that officials were aware in December that the election would fall on the holiday but that they were unaware that religious practices would have prevented some from voting. Herzfeld first raised his concerns in early April.

Elections officials said that keeping polls open until 10 p.m., as Herzfeld had requested, would have been costly — as much as $150,000 — and logistically difficult, particularly within two weeks of Election Day. The board voted this month to open the early voting site this Sunday to accommodate Jewish voters.

Steve Lieberman, Herzfeld’s pro bono attorney, called the board’s response “wholly inadequate,” noting that the holiday begins Monday.

“Anybody who is having guests over for Passover . . . they’re not taking a half-day to go downtown and vote,” he said.

The board agreed Friday, after prodding by Sullivan, to offer voters yet another early voting option, on April 24. Officials said after the ruling that voters will be able to cast ballots that day, Easter Sunday, from 12:30 p.m. until 5:30 p.m. — the same hours as this Sunday.

Voters will elect an at-large D.C. Council member and two members of the State Board of Education, in wards 4 and 8.

Sullivan said any change to the election at this late date would be “extraordinary and drastic.” But he told Lieberman that he thought the elections board “got the message.”

“It’s not going to happen again,” he said.

Lieberman said after the ruling that Herzfeld would continue his case to ensure that it won’t. “The entire point of this lawsuit is to make sure there aren’t District elections on any religious holidays,” he said.

Mike DeBonis covers local politics and government for The Washington Post. He also writes a blog and a political analysis column that runs on Fridays.
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