But D.C. Superior Court Judge Neal E. Kravitz blocked elections officials from considering the qualifying petitions because of a technicality. Kravitz ruled that the city officials did not give the public adequate notice of a meeting they held to vet the language of the referendum that appeared on the petitions.
That infuriated scores of advocates who collected signatures in just one week — a drastically condensed timeline — only to watch their work rendered moot because of a government error.
Referendum supporters on Thursday filed a notice to appeal Kravitz’s ruling in D.C. Superior Court, hoping they might still be able to get the referendum before voters in the spring.
They acknowledged tough odds.
The repeal of Initiative 77 took effect Thursday, the end of a 30-day congressional review period. All laws passed by the D.C. Council must be reviewed by Congress before they can take effect. To force a referendum on the council’s repeal of Initiative 77, petitioners had to submit the required number of signatures from registered voters before the review period ended.
Lawyers for referendum advocates want the D.C. Court of Appeals to halt the repeal of Initiative 77 and allow the referendum to advance. Such a move would be unprecedented.
But they say a court should not erase the right of citizens to serve as a check on the government because of a mistake made by the government.
“There is really significant harm on our end that we don’t feel was considered adequately,” said Sheila Maddali, a lawyer for Restaurant Opportunities Centers United, the advocacy group behind the referendum effort.
Andrew Kline, an attorney who represents the local restaurant association opposed to the referendum, said time had run out on an appeal because the repeal of Initiative 77 became law Thursday.
“It’s moot,” said Kline, who represented two tipped workers who filed the legal challenge to block the referendum. “It’s unfortunate that the Board of Elections and the proponents of the referendum worked together and still couldn’t seem to get the law straight between the two of them.”
The judge threw out attempts to save Initiative 77 because a notice of the hearing wasn’t posted on the D.C. Register — the official legal bulletin published by the city — until the morning of the hearing.
The board did publicize the hearing in other ways, but current rules also require it to advertise referendum hearings in the D.C. Register.
Because the D.C. Register publishes just once a week, that doesn’t allow enough time for advocates of a referendum to participate in a hearing, get the language of their proposed referendum cleared and collect the required number of signatures within the 30-day congressional review period, said Kenneth McGhie, the general counsel for the D.C. Board of Elections.
“We did the best we thought we could under the circumstances with the clock ticking,” McGhie said. “Where we went wrong is our regulations said initiatives and referendums have to be published in D.C. Register. Impossible. Can’t be done.”
The board is now considering changes to streamline the process.
Initiative 77 would have phased out a two-tier minimum wage system common in most states that allows employers to count gratuities when paying tipped workers. It would have gradually raised the current hourly tipped wage from $3.89 to $15 by 2025. Employers would have had to make up the difference if tips did not add up to the standard minimum wage.
Supporters of eliminating the tipped wage say doing so would provide workers more predictable pay, while opponents say it would force restaurants to close or raise prices because of higher labor costs.
Beyond the substance of the issue, the repeal of Initiative 77 struck some angry residents as undemocratic and hypocritical given how local leaders howl when Congress tries to overturn city laws.