Updated 4 p.m. with Nathan and Zukerberg comments
D.C. voters could go to the polls to elect an attorney general within months, after the District’s highest court said Wednesday that the D.C. Council acted illegally last year in delaying the first such election to 2018.
“It follows from our holding that an election must be held in 2014 unless it would not be practically possible for [the D.C. Board of Elections] to do so under the applicable statutory and regulatory provisions,” a D.C. Court of Appeals panel said in a five-page order. “If the District can establish that an election in 2014 is not practically possible, then the election must be held as soon thereafter in 2015 as is practically possible.”
Associate judges Corrine Beckwith, Catharine Friend Easterly and Roy W. McLeese III all joined the ruling. The matter has been sent back down to D.C. Superior Court to determine how soon the attorney general election can be held.
Wednesday’s order may not be the final word on the matter, however. Irvin B. Nathan, the District’s current appointed attorney general, said in a statement that his office will seek an “en banc” review of the case, putting the key question before all nine Court of Appeals judges.
On that question, the panel held that the D.C. Council did not have the power to overrule a charter amendment passed overwhelmingly before voters in 2010. While the underlying language of that amendment said the first election would take place “after January 1, 2014,” the court said that language could not be interpreted as inviting indefinite delays.
“[W]e conclude that a far more natural reading of ‘shall be after January 1, 2014’ is that an election
for the District’s Attorney General must be held in 2014,” the order said.
Nathan said his office maintains that the council had the power to order the delay.
The panel’s decision comes nearly 11 months after the D.C. Council voted to delay the first attorney general election to 2018 and after eight months of litigation by Paul Zukerberg, a criminal defense lawyer who sought an at-large council seat last year and later declared his candidacy for attorney general.
A D.C. Superior Court judge in February rejected Zukerberg’s arguments and declined to order the attorney general’s office onto the April 1 primary ballot. But during oral arguments last month, appeals court judges expressed sympathy with Zukerberg’s arguments, presaging Wednesday’s ruling.
Zukerberg called the court’s decision “perfect.”
“There were some pretty dark moments in this litigation, but we pulled it out in the fourth quarter,” he said. “The court did exactly what they needed to do.”
And Zukerberg, who is best known for defending clients accused of marijuana offenses, said he remains a candidate to become the District’s first independent attorney general. (He collected sufficient petitions to appear on the Democratic primary ballot before the Superior Court judge ruled against him.)
“They just have to tell me where the starting line is and where to show up,” he said. “If they want to make me circulate petitions again, if that’s what it would take, hand me that clipboard.”