The DC Board of Elections collaborated in the disenfranchisement of thousands of District voters when it upheld a complaint filed by Bruce Spiva that asserted DC Council member Kenyan McDuffie did not meet the statutory qualifications to run for the position of DC attorney general because he had not been “actively engaged” as an attorney for the last five years prior to declaring his candidacy. That decision, made during an hourlong closed-door executive session and published on Tuesday in a written order, essentially kicked the Ward 5 legislator out of the race and off the ballot.
In a written statement, McDuffie called the board’s ruling “an attack on democracy and on working people in DC” and described it as the action of “unelected bureaucrats, prompted by a frivolous challenge from a corporate lawyer, who is funding his campaign with the millions he made defending powerful interests like Facebook and Amazon.”
“When you come from communities like mine and spend your career taking on the powerful, you get used to people trying to hold you back,” continued McDuffie, promising to take the board’s “ruling to the courts where we expect to win on appeal.” He also pledged to be “out on the campaign trail” talking with voters about how he’s going to “continue to fight for justice, equity and opportunity for all of DC.”
A victory in the DC Court of Appeals wouldn’t just keep McDuffie on the ballot but could end up strengthening his candidacy, extending his current popularity. The campaign gave notice Wednesday and plans to file a brief Thursday afternoon.
A former managing partner with the DC office of Perkins Coie LLP, Spiva is one of three other candidates seeking the Democratic nomination for attorney general in the party’s primary on June 21. During a telephone interview with me a few hours after the board’s decision, he rejected my assertion that he and the board had disenfranchised DC residents or that he, through the submission of his complaint, was engaged in a form of voter suppression.
“There’s really no analogy. I reject your premise. Nothing whatsoever compares with voter suppression laws; I have traveled across the country fighting for voting rights, including 40,000 Black and brown voters in Arizona,” he said, adding that the DC Council had set minimum requirements and that McDuffie “clearly doesn’t meet those minimum requirements.”
Spiva claimed the law is very plain. But his own lawyer, Ted Howard, admitted at one point in his oral arguments that it is, in fact, “very fuzzy.”
Ahead of the District’s first election for AG in 2014, there were some concerns about the quality of candidates who might run for the office. In response, the council passed legislation that set specific qualifications beyond the basics that a candidate had to be a DC resident and registered voter. The person had to have been a member in good standing of the DC Bar for at least the prior five years and then actively engaged at least five of the previous 10 years as either an attorney in practice, a judge of the court, a law professor, or an attorney employed in DC by the federal or local government.
Spiva and his attorney asserted that McDuffie didn’t fit that last requirement, which is the qualification applicable to him. McDuffie, of course, disagreed, citing his 10 years on the council and his legislative work, including chairing the Committee on the Judiciary and Public Safety.
It seemed ludicrous to many that a council member who is writing DC laws, ensuring their enforcement and providing oversight would not meet that last criterion. While it’s true that non-lawyers serve on the DC Council, non-lawyers can also represent themselves in court under certain circumstances — and some lawyers may never see the inside of a courtroom.
It’s the phrase “actively engaged as an attorney” that appears to be the culprit, creating confusion because it lacks definition.
This isn’t a brand-new dilemma — meaning elections officials and the DC Council ought to have sorted this out long ago. In 2014, Lateefah Williams, then a candidate for attorney general, tried to push the Elections Board and the council’s general counsel to determine whether she qualified for the position. She never received that clarification, but she did appear on the ballot.
Spiva told me that Ryan Jones and Brian Schwalb, both candidates this year for the Democratic nomination, had been talking within political circles about McDuffie’s eligibility. “But I’m the only one who had the courage to step forward and call the question.
“It was arrogance that allowed [McDuffie] to get in the race,” Spiva continued. He accused McDuffie of using dog whistles “throughout this whole race.”
Spiva said he hopes voters see “beyond the nonsense McDuffie’s campaign has been putting out there, including [the] accusation of [Spiva] being akin to a birther.” He also argued that he had “never worked a day or an hour for Facebook.” (Spiva’s campaign said he hasn’t represented Amazon, either; McDuffie’s campaign said the statement is justified based on Perkins Coie’s past or present representation of the two behemoths.)
“They say, if you don’t have the law on your side, you pound the facts; if you don’t have the facts, you pound the law. If you don’t have the facts or the law, you pound the table,” added Spiva.
This is no table-pounding. Even before the board’s decision, many District residents already characterized Spiva’s moves as negative campaigning undertaken as part of a political strategy to dislodge or destabilize an opponent who was perceived as the front-runner.
Further, while Spiva’s action may not appear the classic case of voter suppression, it is textbook voter disenfranchisement. We have seen Republican Party leaders across the country using various technicalities to prevent people of color from fully engaging in the democratic process. U.S. history has recorded countless incidents, all intended to prevent someone, normally a Black person, from voting or running for office. Regrettably, those actions have sometimes been aided by other people of color.
While Spiva may accuse McDuffie of playing the race card, the proceedings themselves showed to me how class can be wielded to taint a candidate, ever so subtly. Particularly during exchanges between Spiva’s attorney and the board’s chair, there was a palpable elitism and smugness — the kind that many poor and working-class Blacks have felt when they present themselves at the door demanding entry into a room reserved for white men or others of privilege.
Let’s not be opaque about some of this. Race politics is still being played in DC. McDuffie was perceived as the candidate who would probably fare the best in Black communities. Schwalb — the only white candidate among the four Democrats vying for the position — may have thought
securing incumbent AG Karl Racine’s endorsement could help him grab a few more Black votes.
Spiva went for the jugular, choosing to challenge McDuffie’s qualifications, hoping to knock him out of the ring and then recast himself as the alternative to McDuffie. As part of that strategy, he printed up new campaign posters; these bear his photo. This week he started TV ads — “a six-figure buy on digital streaming and TV that will run through the end of the primary,” according to the campaign. Once again, Spiva’s visage is presented but also his story as a Black race man who has fought for civil rights and voting rights and tenants — well, you get the picture.
Spiva is not participating in the Fair Elections public-financing program. He has already loaned his campaign as much as $300,000, following in some respects the template of self-financing that Racine used in his first election.
Until this week, District officials have generally chosen or at least given the appearance of supporting the expansion of the franchise, making it possible for more people to participate — with the refusal to hold open primaries that allow independent voters to participate being one obvious exception.
As for the current quagmire, DC Council Chair Phil Mendelson told me this week: “I disagree with the board’s ruling. Kenyan has a right to run.”
While he did not use the word disenfranchisement, Mendelson said that DC voters “lose a choice — that is the bigger issue and I think it’s wrong. Voters are entitled to a choice.”
He noted that more than 2,000 Democratic voters signed McDuffie’s petitions. He also qualified for public financing. A spokesperson for the Office of Campaign Finance told me via email that McDuffie received $845,630 in basic and matching funds through the Fair Elections Program, which provides public financing to candidates who meet certain established criteria.
“The question of [McDuffie’s] qualifications should have been looked at sooner,” added Mendelson, who said he authored the AG qualifications law. He added that if McDuffie loses in the Appeals Court, “We will have to rewrite the law. I don’t know [that] we could do it in this election.”
If the Board of Elections were adhering to proper procedure, this matter should have been resolved months ago.
According to the board’s own rules and regulations, “Within three (3) business days after the deadline for filing the Declaration of Candidacy for any office, the Executive Director or his or her designee shall issue a preliminary determination as to the eligibility of the declarant to be candidate for the particular office sought.”
McDuffie signed that document on Jan. 25, 2022; it was notarized by Pierpont Morgan Mobley and stamped as received on Jan. 28. A Board of Elections spokesperson said it was received by the Office of the Registrar but declined to say by whom. It was not until March 28, 2022, that Monica H. Evans, the board’s executive director, sent a letter to McDuffie, with a copy to the agency’s general counsel Terri D. Stroud. That correspondence indicated the “Board of Elections has preliminarily determined that you have met the qualifications to appear on the Democratic Primary ballot.” It further stated that the determination was based in part on his own Declaration of Candidacy and his “attestation” that he met the qualifications.
Evans also said the decision was based on “records maintained by the office.” What records were those, if not the law providing the details of the qualifications?
The board’s rules require that “the criteria used for determining eligibility to be a candidate shall be limited to the appropriate statutory qualifications for the particular office sought.”
Three weeks later, the board is now reversing that decision — which it has the right to do, the ruling explains. Still, this is yet another episode of election malpractice in the District. Voters saw it in 2020, when officials did not properly distribute or process mail-in ballots during the June primaries, among other things.
It’s becoming increasingly clear that the city’s elections operation screams for comprehensive reform, including bringing in more knowledgeable, skilled and expert staff and board members. Unfortunately, that won’t happen in time to rescue DC voters in this election. Mendelson said at this stage he is reluctant to move to clarify the law — because it’s so close to the election, but even more so because it could seem the council is acting on behalf of a colleague. Thus, the enfranchisement of voters will be left to Appeals Court judges, none of them accountable to DC residents.
Many people have blasted the Elections Board. Former DC Council members David Catania and William Lightfoot, who helped write the law enumerating the AG’s qualifications, called Spiva’s challenge a “cynical distraction and meritless.”
I asked the board’s spokesperson whether the chair, Gary Thompson, or the agency’s general counsel spoke with council members who were involved with writing and approving the qualifications. He said the board made its decision based on “arguments presented and the law.”
Translation: No. How irresponsible and reckless is that?
Dorothy Brizill, a government watchdog who is considered an expert on local election laws and processes, called the board’s decision “just wrong on so many counts.” She noted that the first line of the Spiva complaint made clear it was a “nominating petitions” challenge.
There are very specific, detailed steps to a petition challenge, said Brizill, who has been responsible for at least half a dozen successful challenges, including the one in 2002 that resulted in then-Mayor Anthony Williams being kicked off the ballot for fraudulent signatures on petitions that had been gathered by paid workers.
Others see national political ramifications from this sorry spectacle.
“If you’re a Republican watching all of this, you’ll use these events against Democrats,” said one political observer who requested anonymity. “You’re telling people Democrats don’t believe in democracy, they just took a Black man off the ballot, and you will ride that donkey all the way through the midterms.”
This post has been updated to correct a reference to Pierpont Morgan Mobley to make clear that Mobley is a public notary, not a representative of the Board of Elections.
jonetta rose barras is an author and freelance journalist, covering national and local issues including politics, childhood trauma, public education, economic development and urban public policies. She can be reached at thebarrasreport@gmail.com.
It struck me as strange that McDuffie went for AG when I sensed hints from before the pandemic that he seemed to be interested in becoming mayor and at that time, I hoped he would. Meantime, this account makes Spiva look like a brawler next to Racine’s cool, composed, well communicated and impeccably prepared work. His footsteps will take a lot more than this challenge on qualifications to fill, that’s for sure.