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One day after approving a proposed ballot referendum to unlink the District’s budget from the congressional appropriations process, the District of Columbia Board of Elections and Ethics released its justification for the decision, stating that there is nothing “patently illegal” about the proposed amendment to the city’s charter.
Local leaders and political watchers alike had been waiting for the three-member board to publicly articulate its position, given the strength of opposition from some high-ranking public officials and the fact that a grass-roots effort to achieve budget autonomy without congressional action is unprecedented. The board approved inclusion of the referendum on the April 23 special election ballot.
The five-page document released Wednesday is composed of two separate but concurring opinions that arrive at a basic conclusion: because the board could not find evidence that the referendum would be “patently illegal,” it could find no basis upon which to object it.
D.C. Attorney General Irvin B. Nathan, the leading voice against the referendum, testified before the board Monday to articulate concerns shared by Mayor Vincent Gray and key congressional allies of budget autonomy.
Nathan argued that the proposed charter amendment, if passed, would more than likely be challenged in court for illegally attempting to circumvent Congress’s inherent control over the D.C. budget. He also argued it would violate the Antideficiency Act, which forbids federal entities, such as the federal city of D.C., from spending funds before they are appropriated, in this case by Congress.
The D.C. Council’s general counsel, V. David Zvenyach, countered at Monday’s hearing that the Home Rule Act of 1973 includes nothing to prohibit the city from amending its charter to let D.C. spend its money without congressional approval. The council unanimously approved the authorizing legislation in late December, and Council Chairman Phil Mendelson also appeared before the board on Monday.
While Board Chairwoman Deborah Nichols laid out the basic arguments in her two-and-a-half page opinion, Board Members Devarieste Curry and Stephen Danzansky provided additional insight into the board’s decision to place the referendum question on the special election ballot for voters to consider. Specifically, they revealed that “as for the validity of the Charter Amendment itself, the Board was divided on that question.
“Despite the extremely compelling arguments made by the Attorney General regarding the illegality of the Council’s action, a majority of the Board did not think the Charter Amendment is patently legal,” they continued. “Indeed, the Attorney General himself recognized (at least implicitly) the nuances of the law, and the merit of some aspects of the General Counsel’s arguments.”