jonetta rose barras: Plotting the political future with ranked choice voting

District voters may be trying to decide whether to mark yes or no for Initiative 83, a general election ballot measure that could partially open political party primaries to non-members and install a candidate selection system known as Ranked Choice Voting (RCV) as soon as 2026 — just in time for the next mayoral and DC Council elections. However, the outcome of two cases pending before the DC Court of Appeals could render voters’ preference moot. 

Meanwhile, legitimate questions are being raised about the hundreds of thousands of dollars from outside political action committees donated to Make All Votes Count DC, the group behind the initiative. Between Sept. 10 and Oct. 28, it received more than $600,000 in cash and so-called in-kind services (the accounting for which is unclear). Most of those funds came from Denver-based Unite America, which describes itself as a “philanthropic venture fund.” Between Oct. 11 and Oct. 23, the organization appears to have wired $552,999.98 to Make All Votes Count DC, according to financial reports filed with the DC Office of Campaign Finance.

Rank the Vote, Maryland-based Fair Vote Action and All One God Faith Inc., which appears to be connected with Dr. Bronner’s, a soap-making company, provided in-kind contributions of approximately $18,653. Final Five Fund of Milwaukee wired $25,000.

When asked about details in the financial filing, the Rev. Wendy Hamilton, a spokesperson for Make All Votes Count DC, could not provide direct answers. “Adam Eidinger — who is the secretary, I mean the treasurer, I don’t know Adam’s title, he is doing so many things — said we have reported those correctly and the Office of Campaign Finance has reviewed it.”

Actually, Ward 8 civic leader Philip Pannell is listed as the official treasurer. Eidinger is well-known locally for his involvement with the initiative that decriminalized recreational use of marijuana in DC and the initiative that altered tip wages in the city. Both were controversial and, in my view, have produced lingering adverse impacts.

“All roads lead to Adam. He is the engine driving all of this,” said Dorothy Brizill, founder and director of DC Watch, a government watchdog group. She has been monitoring local elections for the past 30 years. More recently she has publicly called for changes to the BOE and its staff; that seems to have invited BOE’s wrath, prompting an unprecedented rescinding of her pass to observe activities at vote centers and the tabulating process at the agency’s warehouse.

“There are things that don’t make sense [in the financial report]. I think OCF is looking the other way,” Brizill told me during a telephone interview earlier this week. 

A spokesperson for OCF could not answer my questions about how the in-kind contributions were listed and several other aspects of the Make All Votes Count financial report, adding that the audit staff was reviewing the documents and would not be able to provide clarification in time for this column’s publication. 

In the past, some progressive advocates, like those backing I-83, have characterized such donations as “dark money.” This election cycle mum’s the word.

The pending legal actions against I-83 have been taken separately by various leaders of DC’s Democratic Party. 

In one, Democratic State Committee Chair Charles Wilson and others assert that the initiative violates the city’s governing charter and certain constitutional rights of District residents. DC Superior Court Judge Carl E. Ross dismissed that litigation earlier this year, ruling the complaint was filed prematurely and granting elections officials’ requested dismissal. 

Johnny Barnes, a long-time civil rights lawyer, filed an appeal on behalf of Wilson and presented arguments last week before the DC Court of Appeals.

Deirdre Brown, chair of the Vote No on Initiative 83 committee and an elected Democratic committeewoman, filed a brief last week in her case, asking the Appeals Court for an administrative review of the process the BOE used in deciding the measure could appear on the ballot in the Nov. 5 election. She and her team claim the petitions are flawed because correction fluid such as Wite-Out “had been used to cover and alter information entered by the voter on thousands of signature lines. White out had been used to cover and alter information in the circulator affidavit portion of petition pages.” 

“The Board acknowledged that over 4802 signatures where white out was used [were] deemed invalid signatures during the Board’s verification process,” yet provided no transparency as to how it determined which of those signatures would be counted and which were invalidated, Brown wrote in her brief.

Brown and Brizill describe BOE staffers having held petition sheets to the light to examine what was beneath the correction fluid and to try to assess what BOE called voter intent. It seemed straight from that infamous presidential election when officials in Florida were looking at hanging chads to decide for whom a vote had been cast.

Help us.

It’s shocking to me that neither the BOE nor the Make All Votes Count committee has engaged in any proactive effort to make sure voters are aware of the outstanding litigation, its potential adverse impact on the outcome of their voting, or the fact that regardless of voter approval I-83 may not be enacted. 

BOE spokesperson Sarah Graham told me in an email that the board is mandated by law to place a measure on the ballot if it has met all of the requirements. “Election statutes do not provide that a pending court challenge is a basis for refusing to grant ballot access.”

Was there anything to prohibit a campaign from informing the public about the state of play of any issue on the ballot?

“The General Counsel has reported on the status of these court cases at 14 meetings of DCBOE’s Board, which were open to the public,” said Graham, directing me to the transcripts on the agency’s website.

There are more than 400,000 registered voters in DC. I dare say the overwhelming majority have no idea when the BOE meets, let alone what information is in the minutes or the transcripts.  

While Make All Votes Count leaders have asserted that their intent is to improve voter engagement and the quality of candidates, there is little evidence that the group has attempted to inform the public about the court cases.

Hamilton told me that they believe the BOE resolved the issue and appropriately determined the initiative was a proper subject. “We’re on the ballot.”

“The two suits are quite meritless,” she continued. “It’s unfortunate that [they] are pending while voting is ongoing.”

When pressed about whether she felt her group had any obligation to educate, she said, “It’s up to voters to find out if there are pending legal suits.” 

What happens if the court decides for the opponents of I-83? How will supporters of the measure feel about learning after the fact that these challenges were in play as they were voting, and no one told them? Will that engender confidence in the process?

“The whole thing has been a disaster from the very beginning,” the Democratic State Committee’s Wilson declared during an interview last week with me. “I am disappointed in the Board of Elections and how they have handled this.” 

I have repeatedly criticized the BOE for the shoddy management of this initiative process.  Further, it’s no secret that I do not support ranked choice voting and oppose I-83. Both aspects of the measure are superfluous. Currently voters registered as independents may at any time change their affiliation to vote in any party’s primary. As for the ranked choice voting, which has been described as akin to instant runoffs, researchers have suggested that marginalized voters, including those with disabilities, are disadvantaged by such a system.

Interestingly, in a recently released report, the DC Appleseed Center for Law and Justice, which appears to support ranked choice voting and open primaries in concept, cited a section of the DC Code that states “No person shall vote more than once in any election nor shall any person vote in a primary or party election held by a political party other than that to which the person has declared themselves to be a member.”

“This language or other DC Code provisions would need to be amended for the District to adopt open primaries, ranked choice voting, or other reforms,” Appleseed wrote in its report.

That fact seems to partially support the underpinnings of the case filed by Barnes on behalf of Wilson and others. The judge did not rule on the merits of the lawsuit, however; he instead dismissed the original court filing on procedural grounds.

In his appellate brief Barnes argued that Ross erred when he applied the 10-day protest timeframe established by the BOE without considering the merits of the case. “The trial court’s ruling should be reversed, and this Court should remand the matter for consideration of the claims raised in the Complaint,” Barnes added. 

During our conversation, Hamilton, a Ward 8 resident, presented a passionate argument for the initiative, focusing more on the semi-open primary aspect of the measure. She also elaborated on the reasons for her support. “In Ward 8 our turnout number is distressing to me. I am so afraid that east of the river, we’re going to find ourselves out of power.”

She called the initiative “the best alternative” for engaging more voters and opening “the door for more Black people to get involved.”

We’ve heard that before, several people told me in response — including Brizill, who asked “Remember the argument they made for the Fair Elections Act?” 

Advocates of that legislation said it would increase the number of Black people and folks of color running for office. However, the evidence from recent elections is that many of those candidates have been unable to meet the participation threshold set by the law. White candidates, on the other hand, have seemingly had no problem.

Then there has been misuse of public funds. Ward 8 Councilmember Trayon White Sr. still owes the city $58,000 in fines and penalties for campaign finance violations in connection with his management of Fair Elections funds.

“It’s been a sham and a boondoggle,” said Brizill.

If there is a cautionary tale to be told about RCV, it may be in Alaska. That state initially rejected the new system. Then, in 2020, it approved RCV. This year, there is a movement to repeal it. “It only took one election cycle for them to realize it doesn’t work,” said Brown.

Based on questions asked by the judges, Wilson said he thinks “the Court of Appeals is just as frustrated as we are.” He predicted the case may be sent back to Superior Court.

The BOE filed a supplemental brief, asserting that if the case is remanded, the Appeals Court should instruct the lower court to “review the Board’s proper subject finding in accordance with the same standard that applies to court review of agency decisions under the D.C. Administrative Procedure Act.” The agency’s attorneys, Terri Stroud and Christine Pembroke, also argued that “Even taking into [consideration] a claims-processing theory with respect to whether the Superior Court decision should be affirmed, it is clear that dismissal on grounds of untimeliness is appropriate.”

The bottom line: No one should expect a resolution by Nov. 5. 

The same holds true for Brown’s case; she has asked the appellate court to review whether the BOE “erred by not invalidating all petition signature lines where white out was used”; “erred by not invalidating all petition pages by circulators where white out was used on the pages that they circulated”; “erred by not providing a detailed accounting of which signature lines were invalidated and which signatures with the use of white out were not invalidated”; “erred by not having a clear and transparent policy and procedures in place regarding the tampering of petition signature lines”; “erred by not issuing an Administrative Order with facts and conclusion of law explaining their decision in this matter”; and “erred by ignoring a request to conduct an emergency hearing and investigation into the use of white out on the Measure’s petition pages.”

Brown also raised questions about the arrangements made by the BOE for individuals to watch the verification of petition signatures. “The NO on 83 watchers were assigned folding chairs in designated areas and could not leave an area without an escort. This limited and obstructed the watchers’ ability to observe the count and make sure it was being executed fairly and correctly.”  

Brizill has pledged to file an amicus brief. Brown said the Appeals Court can’t decertify the initiative. She has asked instead for the court to order the BOE to remove all the pages with correction fluid. “Without those pages I don’t believe they have enough signatures.”

Whatever happens in court, Wilson, Brown and Brizill have reached the same conclusion: The council should pass a law prohibiting the inclusion of any initiative or referendum on the ballot while there are still legal challenges before the court.

That seems a reasonable response. It certainly could go a long way to affirm voter confidence.

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jonetta rose barras is an author and DC-based freelance journalist, covering national and local issues. She can be reached at thebarrasreport@gmail.com.