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D.C. ruling to keep 'closed primary' system deals blow to Fenty campaign

By Mike DeBonis
Thursday, August 26, 2010; B01

Registered voters not affiliated with a political party will not be allowed to cast ballots in the city's primary elections next month, District elections officials ruled Wednesday.

The decision maintains regular practices but deals a major blow to Mayor Adrian M. Fenty's efforts to capture votes in his reelection campaign.

The District has had a "closed primary" system since local elections began in 1974, in which only voters who declare a party affiliation may vote in that party's primaries. Starting 30 days before an election, registered voters may not change their affiliation.

But a package of election reforms passed by the D.C. Council last year for the first time allows voters to register on the same day they cast a ballot.

The Fenty campaign petitioned the Board of Elections and Ethics on Friday, asking it to reconsider rules announced Aug. 12 prohibiting unaffiliated voters from declaring a party at polling places.

Marc Elias, an attorney for the Fenty campaign, argued Wednesday that the new law contained "ambiguous" language that could permit undeclared voters to declare an affiliation at a polling place. He appealed to the board to interpret the law broadly.

"When in doubt, enfranchise the voters," Elias said.

But representatives for Fenty's main challenger, Vincent C. Gray (D), argued that allowing independent voters to choose a party on primary day would represent a sharp departure from prior practice -- a departure, they claimed, that lawmakers did not intend to make.

The board's members and attorney largely accepted that argument. Holding closed primaries "has been the practice for a long time," said Togo D. West Jr., the board's chairman. "The [elections bill] did not change this."

At the meeting, board attorney Kenneth J. McGhie read from a transcript of a D.C. Council committee meeting, where member David A. Catania (I-At Large) introduced a series of amendments to the election reform bill aiming to broaden participation in primary elections. One of them closely mirrored Fenty's request, to allow unaffiliated voters to choose a party at a primary polling place.

Passing the amendment would become a "back door to an open primary," the committee's chairwoman, Mary M. Cheh (D-Ward 3) said at the Sept. 25 meeting. The committee voted 3 to 1 to reject the proposal.

West said that the D.C. Council's intent was clear. "This order focuses largely on the actions, or in this case, the inactions, of the council," he said.

William Lightfoot, chairman of Fenty's campaign, said after the meeting that the campaign had no plans to appeal the decision before the election. Fenty said later in the day that the board had "final say" in the matter.

But Brian Castro, a lawyer in private practice, said he plans to seek an injunction in federal court in the coming days. "The decision announced today would unconstitutionally disenfranchise the entire group of D.C. voters who were registered as unaffiliated," he said.

Castro, who supports Fenty (D), testified at the hearing but said he is not affiliated with the campaign and has not coordinated with its legal team.

Primary day is Sept. 14, but early voting sites open starting Monday.

Before the hearing, the Gray campaign had been harshly critical of Fenty's request to change the rules. "They're trying to game the system at the eleventh hour," campaign manager Adam Rubinson told reporters Tuesday.

In a break from the city's campaign orthodoxy, Fenty has targeted voters not affiliated with the Democratic Party. While Democratic candidates typically target registered voters on the Democratic rolls, Fenty has sent numerous mailers and canvassers to non-Democratic households.

In remarks to the board, Rubinson argued that the timing of the change would make it unfair, noting Fenty's months of outreach to independent voters. If a rules change had been publicized, Rubinson argued, Gray might have changed his campaign strategy.

"We're fine with the notion of the Democratic Party opening up to an open primary-type system," he said Tuesday, "but this is something that should be discussed after the election."

The elections board said Wednesday that it has processed 4,748 registered voters' requests to switch parties since Jan. 1, with 3,074 of those becoming Democrats. There are about 329,000 voters registered as Democrats; about 72,400 have not declared an affiliation.

The ruling was among the first made by West, the former veterans affairs secretary who was approved and sworn in as board chairman late last month. West and the board's other member, lawyer Charles R. Lowery Jr., deliberated only briefly before announcing the ruling.

A small hearing room at the board's downtown offices was packed with lawyers, reporters and civic activists, most of whom welcomed the decision. Many of them testified against the Fenty proposal.

"The whole city is watching," Rubinson told the board.

Staff writer Timothy J. Wilson contributed to this report.

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