Correction: An earlier version of this post gave an incorrect date for last year’s special election. This version has been corrected.
The lawsuit was settled last week, with Mayor Vincent C. Gray (D) agreeing to submit legislation to the D.C. Council giving the Board of Elections and Ethics discretion to schedule a special election to avoid these sorts of conflicts.
During a hearing in Herzfeld’s case, a board lawyer argued that the city had no discretion whatsoever in scheduling a special election under the law — noting that even if an election were to be scheduled on Christmas, there would be nothing the board could do about it. The city charter demands a special election be scheduled for the first Tuesday that is 114 days after a vacancy is declared. The only exception is if a previously scheduled general election is within a 60-day window before or after the special election date.
U.S. District Judge Emmet G. Sullivan encouraged the city to come to an accommodation for observant voters of all faiths. Under the legislation that Gray agreed to introduce, the board would have discretion to schedule special elections within a window from 100 days to 130 days after a vacancy is declared — not just to avoid religious holidays, but to “provide the largest opportunity for voter participation . . . based on a totality of the circumstances, taking into account, inter alia, cultural and religious holidays.”
The board would also be able to postpone a special election for a week “in the event that a natural disaster, war, riot, unforeseen attack, or other major upheaval precludes or makes it difficult for a substantial number of voters to exercise their right to vote.”
Steven Lieberman, Herzfeld’s attorney, praised the settlement and said Gray “showed a lot of wisdom” in agreeing to make changes. “We won’t have elections in the future scheduled on religious or cultural holidays,” he said. “It was a very wise move for the mayor to do this.”
Alysoun McLaughlin, a board spokeswoman, declined to comment on the settlement. It is worth noting that should the bill become law, it would complicate and potentially politicize the scheduling of elections, which has never before been an issue in the District, though election authorities in other places do have scheduling discretion.
Because the change would amend the District charter, it must either be ratified by voters and pass a congressional review period or be directly enacted by Congress. According to the draft legislation, Gray is proposing to put the change on the ballot.
The legislation, which has yet to be formally submitted to the council, would not affect the Ward 5 special election to replace former council member Harry Thomas Jr. — likely to happen May 8 or May 15. It also appears to conflict with a bill in Congress that would reduce the wait time for a special election from 114 days to 70 days. Del. Eleanor Holmes Norton (D) said Friday that the bill has been delayed in the Senate by a hold from an anonymous senator.