Updated 5/30 to correct that the ballot said the first attorney general election would take place in 2014, not 2017.
The District’s elected council and its courts have not been kind recently to plans, passed by voters in 2010, to start electing the city’s attorney general.
First, lawmakers moved last year to delay the election until at least 2018 and have so far failed to act on efforts to reverse the delay. And, earlier this year, a Superior Court judge rejected a bid by lawyer and potential candidate Paul Zukerberg to restore the 2014 election.
Now it appears Zukerberg might have found some sympathetic ears in the D.C. Court of Appeals, the District’s highest court, raising the possibility that voters might still be allowed to cast ballots this year for the city’s top legal official.
An appeals court panel sharply questioned a city lawyer Thursday who argued against Zukerberg’s lawsuit. At least two of the three judges hearing the case expressed serious reservations to Assistant Attorney General Richard S. Love, who argued the case on behalf of the District government.
At the crux of the case is a conflict between the charter amendment passed by the the council and presented to D.C. voters, which calls for the attorney general to be elected “after Jan. 1, 2014,” and summary language presented to voters that said, unequivocally, that the election would take place in 2014.
If the court interprets that the charter amendment required the first election to take place in 2014, then the council could not have legally acted to delay it. And two of the three judges, in their questioning, indicated they were skeptical that the amendment was as clear in permitting a delay as the city has argued.
Both judges Catharine Friend Easterly and Roy W. McLeese III indicated that they believed that the “after Jan. 1, 2014” language was ambiguous, despite Love arguing otherwise. (A third judge, Corinne Beckwith, spoke only once during the arguments and did not betray any particular sympathies.)
Easterly, for instance, asked whether the council would be within its rights to delay the election 100 years or 200 years if it wished. Love maintained that the council deliberately used “open-ended” language permitting any sort of delay.
Later, McLeese raised the analogy of a father telling his son, headed out to a school dance, that he must “come home after the dance.” “Does that mean if he comes home in 2018, that’s fine?” McLeese asked.
Both judges said suggested they would be taking a close look at the legislative history behind the charter amendment — trying to discern not only the intent of the lawmakers who voted to put the measure on the ballot, but also the voters who cast those ballots.
Easterly said she thought city lawyers were being unduly “dismissive” of the electorate’s intent. “What I hear you say is, it really doesn’t matter what the voters thought they were voting for,” she said.
Said Love, “A reasonable lay voter should know that what they are voting on is the enactment, not the summary” — in other words, it does not matter that the language actually appearing on the ballot said the first AG election would take place in 2014.
Love ran into further trouble with Easterly after she brought up a memorandum sent by D.C. Council member Phil Mendelson, then an at-large member, explaining changes made to the charter amendment before a final council vote. The memorandum, Easterly suggested, clarified that the council intended that the first election take place in 2014, not at a future date to be determined.
In response, Love dismissed the memo as the “statement of a single legislator.”
“I’m sorry, but it’s not the statement of a single legislator,” Easterly shot back, noting that Mendelson crafted the charter amendment and shepherded it through the council.
Zukerberg’s attorney, Gary Thompson, faced thorough but less hostile questioning. Much of it centered on what the appeals court could do should it determine that the charter amendment demands an attorney general election in 2014.
After the arguments, Thompson said he was pleased the “judges were asking the right questions” but said quick action would be necessary to get an attorney general elected by year’s end.
Under the charter amendment, the attorney general must be elected in a partisan race, and under a recent opinion from current Attorney General Irvin B. Nathan, that means holding both party primaries and a general election. Some of those opposing the election delay have suggested the primary could be held concurrently with the Nov. 4 general election, but another citywide election would have to be scheduled after that.
Regardless, even if the appeals court rules in Zukerberg’s favor, further delays are possible. The matter would likely be sent back to a trial judge for further action, and the city could also still seek a review by the full appeals court.