A three-judge panel of the District of Columbia Circuit Court of Appeals asked Thursday whether D.C. voters had been duped by a 2010 ballot referendum on changing the city's attorney general job from a mayoral appointment to an elected position.
The referendum, approved by more than 90,000 D.C. voters, said: "If voters approve of this amendment and the U.S. Congress does not reject the measure, the residents of the District of Columbia would begin voting for the Attorney General in 2014.”
But the office did not appear on February's primary ballot, due to a D.C. Council vote that delayed the election until 2018. Unless the court overrules the council, the election will be excluded from the November ballot as well.
Judges Corinne A. Beckwith, Catharine F. Easterly and Roy W. McLeese questioned the legislative intent of councilmembers who, in 2010, approved a measure to end mayoral appointment of the city's chief lawyer, and tried to discern whether the District is bound to elect its attorney general in 2014, as 43 states do.
While the ballot referendum stated residents would begin voting for the office "in" 2014, the full text of the amendment was more ambiguous, stating that the District would start electing attorneys general "after" Jan. 1, 2014.
"Were voters duped?" McLeese asked.
Judges are delving into voter intent as part of an ongoing legal battle by attorney general hopeful Paul Zukerberg, who has been fighting to get his name on the ballot since September 2013.
Last year, D.C. leaders concluded that the election should be delayed, after an ongoing debate about how the attorney general's office would be restructured and how responsibilities might change. Supporters cited a lack of declared candidates. The council voted 8-5 to push the election back to 2018, despite attempts by Chairman Phil Mendelson to move forward with an election, sending the bill to Congress for review.
It became law in mid-December, but Zukerberg continued gathering signatures to get his name on the ballot. He submitted more than 4,800 signatures to secure ballot access before a judge ruled in February that the attorney general race would not appear on the April primary ballot.
Now it is up to the appeals court to try to figure out what the 2010 amendment to the charter meant, then rule on whether the 2013 legislation to delay the vote violated the city's charter.
Voters were "essentially promised that if they checked yes, they would get to vote for an attorney general in 2014," attorney Gary Thompson argued Thursday on Zukerberg's behalf.
Thompson is asking the appeals court to reverse the rulings of lower courts and hand down instructions for the city to proceed with an attorney general election before the end of 2014. He emphasized that he is not asking the court to get into the details of "how and when" the election would occur, but simply to rule quickly.
"When voters are part of the process, their intents have to be taken into consideration, too," he said.
Meanwhile, Richard S. Love, who represented the board of elections, maintained that the referendum language was open-ended. He said voters are important, but it doesn't really matter what they believe they voted for in 2010. When pressed, Love said he was "agnostic" about voter intent. (D.C. Attorney General Irvin B. Nathan has said voter intent is "simply not relevant.")
Easterly suggested that logic was "pretty dismissive" of D.C. voters, but also said she was "dubious" that either side could rely on a plain language argument about the amendment and referendum.
Zukerberg has a coalition of public interest groups supporting an attorney general election in 2014, including DC Appleseed, DC Vote, D.C. for Democracy and the District's shadow delegation.
When asked how he was feeling after the oral arguments, Zukerberg said he would give himself the same advice he normally gives his legal clients: "Expect the worst, then pray for the best."