A last-ditch bid to preserve an election next year for D.C. attorney general was aired in federal court Thursday, where it became clear that legal technicalities could make it difficult to keep the office on the ballot.
The D.C. Council voted last month to delay the first attorney general election, which was mandated by voters in a 2010 charter amendment and originally scheduled for 2014. The delay, which some lawmakers argued was necessitated by a lack of candidates and uncertainty over the office’s duties, has been challenged in a lawsuit by Paul Zukerberg, a criminal defense attorney and former council candidate.
Zukerberg and his pro bono lawyer, Gary Thompson, took their arguments to U.S. District Court Thursday, asking Judge James E. Boasberg to step in and allow the election to proceed in 2014, arguing that the delay violated voters’ constitutional rights and also violated the charter amendment. But most of the argument concerned whether the claim was properly resolved in federal court and whether the case is ready to be decided at all, considering that the legislation mandating the delay has yet to pass a congressional review period and become law.
Indeed, the D.C. Board of Elections continues to prepare as though the election will proceed. On Monday, in a move intended in part of improve his legal standing, Zukerberg filed papers declaring his candidacy for the attorney general’s office and says he plans to pick up ballot petitions tomorrow.
Boasberg appeared skeptical at points on whether he could enjoin a law that hasn’t taken effect yet — the delay legislation isn’t expected to pass congressional review until mid -December at the earliest — but Thompson argued that would be too late if the courts waited until then to act, considering the petition-circulation period is set to expire Jan. 2.
“Without this injunction this election is over,” Thompson said.
Boasberg also questioned lawyers on both sides whether the issues in the case are properly resolved in the federal courts. He again appeared skeptical at times that the constitutional claims had merit, although he seemed more sympathetic that the election delay could run afoul of District law. Zukerberg initially filed his case in D.C. Superior Court before it was moved to a federal judge; moving it back to the local courts could mean further delays.
But Boasberg did recognize the discrepancy at the heart of Zukerberg’s claims: The charter amendment mandates an AG election “after Jan. 1, 2014” — which was interpreted by the council to permit a delay — while language that actually appeared on the ballot said the election would, without qualification, take place “in 2014.”
Either the council erred in drafting the charter amendment language or the Board of Elections erred in interpreting it when writing the ballot summary, Boasberg suggested: “They’re not terribly compatible. Somebody did a lousy job here.”
Asst. Attorney General Keith Parsons, one of two lawyers arguing the case for the District, suggested why the delay made legal and practical sense: “[The council] left in flexibility in case something came up, and that’s exactly what happened,” he said, referencing the uncertainty over the parameters of the office.
After hearing arguments, Boasberg said he expects to issue an opinion by late next week.
Thompson said afterward that the election remains “full steam ahead,” and Zukerberg said he plans to circulate petitions this weekend in Columbia Heights. But in terms of timing, the two have little room for error. If Boasberg finds he cannot rule until the council legislation actually becomes law or decides that the matter is best handled in the local courts, it will become increasingly difficult to proceed with the election, given the strict timeline of preparations — starting with the Jan. 2 petition deadline. But Thompson said he was confident that, sooner or later, Zukerberg would be proven right: “When we get to the merits [of the case], it’s a slam dunk.”