A D.C. Superior Court judge refused yesterday to bar the D.C. Board of Elections and Ethics from certifying the results of the Sept. 12 Democratic primary in Ward 5.
Judge George H. Revencomb ruled that any challenge to the election procedures must be brought to the D.C. Court of Appeals - not Superior Court - within seven days after the board certifies the results, which it is scheduled to do tomorrow.
City Council candidate Robert Artisst, who, according to final official returns, lost a close race in Ward 5 to incumbent William Spaulding, had asked Revercomb to bar the certification and invalidate the election results in the ward because of alleged irregularities in voting procedures in at least three precincts. Four citizens joined Artisst in the action.
Last week, City Council Chairman Sterling Tucker, who lost the Democratic nomination for mayor to City Council member Marion Barry, said his lawyers also plan to ask Superior Court to bar certification and order a new election, also because of alleged problems in the balloting.
Tucker's lawyer, R. Kenneth Mundy, who attended yesterday's hearing on Artisst's motion yesterday, indicated that a court action in behalf of Tucker would be filed yesterday afternoon. However, by the close of the court's business hours, no such action had been filed according to court officials.
Mundy, in a telephone interview after Revercomb's ruling, said he planned to meet with Tucker to discuss sworn statements by voters collected over the weekend in support of his client's contentions of alleged irregularities in the voting and tabulation procedures.
Mundy said he would examine the statements to determine whether they contain sufficient information to ask the court to order a new election and then advise his client as to what action should be taken. Mundy declined to say who had signed the statements or how many statements were made.
When he called for a new election Friday, Tucker said problems in the election included a shortage of ballots in one precinct, the discovery of 7,000 unread ballots and delays and foul-ups in the tabulation procedures.
Tucker's attorney said yesterday that Revercomb's decision in the Artisst case "doesn't necessarily change" his client's plans to file a court action to stop the certification.
During the hearing yesterday, however, Revercomb indicated that he agreed with attorneys for the Board of Elections, who argued that D.C. law specifically provides that disputes about election procedures must be brought to the appeals court after certification of the election results.
Winfred R. Mundle, the board's general counsel, contended that it was premature for Artisst to contest the results prior to certification, which Mundle described as just a "ministerial" procedure to provide the public with notification of the election results.
Thomas H. Queen, an attorney for Artisst, argued that the law that allows challenges to be made directly to the court of appeals applies only to persons who cast a vote in the primary. Two of the women who joined Artisst in his lawsuit, however, were unable to vote because of a shortage of ballots in Precinct 69 in Ward 5 on primary day. Queen said. Therefore, they had no choice but to come to the Superior Court with their complaint and request for a new election. Queen public with notification of the election said.
In response, Mundle contended that those voters should have come to the court on election day, and otherwise must wait until seven days after the results are certified to challenge.
Revercomb said that he felt that procedures in the city law for contesting election results were adequate.
If the court were to stop certification of the election results. Revercomb said, it would interfere with the remedies specifically laid out in city laws for resolution of such disputes.
He said he felt that Artisst would have the legal grounds to include voters who had not cast ballots in any action he might file after certification.
According to the law, after the results are certified, the matter can be taken directly to the Court of Appeals, which has administrative review power over the Board of Elections, Revercomb said.
In addition, a citizen or candidate can seek an advisory opinion from the board itself in connection with alleged irregularities in voting or counting procedures, he said. Disputes over that opinion could be resolved either in the Superior Court or the Court of Appeals, Revercomb said.
Late yesterday, William A. Borders Jr., who also represents Artisst, filed notice in Superior Court that his client intended to take Revercomb's decision to the D.C. Court of Appeals.
Boards indicated that he would file a motion today asking the appeals court to conduct an immediate review of the lower court ruling, an appeals court spokesman said.