Attorneys for an initiative to legalize slot machines in the District urged the D.C. Court of Appeals yesterday to clear the way for the issue to be placed on the Nov. 2 ballot, saying the city's election board lacked sufficient evidence to invalidate thousands of petition signatures gathered to support the gambling plan.
But a skeptical three-judge panel indicated during oral arguments that it is unlikely to overturn the board's August ruling. The best slots supporters can expect, the judges said, is for the court to send the case back to the election board with orders to reexamine its decision and try again.
"But we're fast running out of time," protested attorney George W. Jones, who is representing slots supporters in their appeal.
"I know," said Michael W. Farrell, the presiding judge. "Everyone cringes at the idea of more [election] board proceedings."
The exchange came during one of the friendlier moments in the nearly two-hour hearing, which was marked by sharp questions for slots supporters. The judges were more gentle with election board general counsel Kenneth McGhie. At one point, Farrell suggested a better answer to a query about the board's rationale for throwing out every signature gathered by a major consultant to the slots petition drive.
Afterward, McGhie declined to predict how the court might rule. "You can never tell," he said.
Farrell said the panel would make its decision "sooner rather than later," and both sides said they expect a ruling this week.
At issue is a proposal to ask D.C. voters to authorize the installation of 3,500 slot machines on a 14-acre site in Northeast Washington. The profits -- estimated at $765 million a year -- would be divided among the facility's owners and the District government, which could get as much as $190 million annually to fund city services.
Last month, the D.C. Board of Elections and Ethics barred the proposal from the ballot, saying a frenetic five-day petition drive had been flawed by widespread irregularities, including forged signatures and false statements by paid petition circulators.
Though slots supporters submitted more than 56,000 signatures -- more than three times the 17,599 needed -- the board concluded that only about 14,700 were both valid signatures of registered D.C. voters and untainted by fraudulent practices.
Slots supporters appealed, arguing that the board's ruling regarding "false statements" represented a dangerous attempt to regulate political speech, in violation of the U.S. Constitution. The local branch of the American Civil Liberties Union joined the appeal as a friend of the court.
Yesterday, Farrell, Associate Judge Vanessa Ruiz and Senior Judge Theodore R. Newman signaled that they are inclined to agree that there are serious problems with the idea that a government agency can reject petitions simply because it does not like the sales pitch used by circulators -- in this case a promise that slot machines would generate money for schools and better health care.
"That's a classic example of political hyperbole," Farrell said.
However, the judges seemed far more interested in discussing evidence of forgery and other election law violations, which, they said, seemed to provide ample basis for the board's decision to throw out nearly 6,600 signatures gathered under the direction of Stars and Stripes USA. Of 67 circulators associated with Stars and Stripes, at least 10 either invoked their Fifth Amendment right not to testify or admitted that they had forged signatures or failed to witness signatures on the forms. Thirty more either could not be found or refused to respond to the board's subpoenas.
McGhie said "the cumulative effect of all these wrongdoings" led the board to invalidate all the petitions submitted by Stars and Stripes circulators.
"The false statements are not the sole reason, the primary reason or even the principal reason the board decided to exclude signatures from Stars and Stripes," he said. "The false statements were the icing on the cake."
As the legal battle played out, slots supporters prepared to file a new fundraising report tomorrow with the city's Office of Campaign Finance. The initiative's chairman, Pedro Alfonso, said a group of St. Croix gambling promoters is still funding the effort. In addition to Jones, the St. Croix interests are paying a separate lawyer, Jeffrey Robinson, to represent a group of D.C. voters who signed the slots petitions and argue that they should have a right to vote on gambling, according to Robinson.
Alfonso declined to say how much money is involved. But, he said, "we're finding that we have to defend the Constitution, and defending the Constitution is expensive."