Watch for the lawyers in D.C. Democratic mayoral primary

By Mike DeBonis
Washington Post Staff Writer
Friday, August 27, 2010; B02

Come Sept. 15, the District could be feeling downright Floridian, especially on the second floor of One Judiciary Square, home of the Board of Elections and Ethics.

The battle between Adrian M. Fenty and Vincent C. Gray is shaping up to be something the District of Columbia hasn't faced in 36 years of limited home rule: a very, very important election that could be very, very close.

An independent poll released last week by Clarus Research Group showed the mayoral race to be a statistical tie, with Gray holding a lead within the survey's margin of error. No need to detail the stakes, of course.

"In the back of everyone's mind, everyone's concerned about the Florida situation," said Dorothy Brizill, civic activist and longtime election watchdog.

There may not be any hanging chads or Brooks Brothers riots here. But there is the possibility that, more than a week after primary day, we still won't know whether Gray or Fenty won. And the result may very well be in the hands of the two-member election board.

By federal law, residents who believe they should be able to cast a vote must be allowed to. And if they aren't on the official rolls, they vote using what D.C. calls a "special ballot." It's up to the election board to decide whether to accept each special ballot.

Here's the twist: Under the District's new same-day registration requirement, all ballots cast are special ballots -- so there will almost certainly be more special ballots cast in this primary than ever before. In 2006, for instance, of about 106,000 votes cast in the Democratic primary, only 2,912 were special ballots. This time around, election officials estimate, based on experiences in other jurisdictions, that turnout could be driven up by 7 percent or more. Combine that with the expectation of a higher turnout, and the number of special ballots could approach 10,000.

The race doesn't have to be razor-close for those ballots to matter, just plain-old close. And if that happens, the lawyers will be going to the mattresses.

"We could have a real situation here," said Bill O'Field, a former D.C. election official who now works as a consultant. "The campaigns could be poring over those special ballots for days."

District residents were offered a preview of what the post-primary scene could look like on Wednesday morning, as the election board considered a Fenty proposal to open the primaries to independent voters: A small room packed with almost as many cameras as lawyers, with activists and the plain-old curious spilling into the hallways.

The board has set aside three days for review of special ballots, starting the Tuesday after primary day. Both the Fenty and Gray camps have engaged top-notch election lawyers. In the Fenty corner is Marc E. Elias, a Perkins Coie partner who has served top Democratic , including the 2004 Kerry-Edwards campaign. Fenty's campaign chairman, Bill Lightfoot, is a formidable trial lawyer, and Matthew Cutts, a Patton Boggs partner, is helping to assemble a corps of volunteer lawyers to fan out to polling places.

To help fend off the Fenty independent-voting initiative, Gray hired Scott E. Thomas of Dickstein Shapiro, a former 20-year member of the Federal Election Commission. Gray's field army of lawyers is being assembled by Lloyd J. Jordan, a former director of the Department of Consumer and Regulatory Affairs who is now a partner at Akerman Senterfitt.

The Fenty campaign may have a head start on preparing for a ballot-review showdown: On Monday, Elias sent a four-page letter to election officials, requesting a laundry list of public documents on the election, including lists of absentee and early voters, poll books, and more.

The ballot challenges, however, would be the last round in this bare-knuckle fight.

Both camps are flinging accusations and lightly founded expectations of voter intimidation and shady electioneering. Add to that the well-publicized fact that the city will be deploying not only same-day registration but also new voting machines and early-voting opportunities.

The "sheer potential for mischief and chaos" is considerable, Brizill said, adding, "I just hope that people act like adults."

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