jonetta rose barras: The dangerous road ahead for the DC Council

The DC Board of Elections released its formal ruling earlier this week, making official its declaration that the Make All Votes Count Act of 2024 is a proper subject for a ballot initiative. That decision is reckless and without consideration of the adverse long-term consequences it may have on the government or DC voters. The three-member, non-elected board essentially nullified an existing law without action by the local legislature or Congress. 

Further, the BOE’s decision created a precedent that in this case could force the DC Council to prioritize revenues for an unnecessary election change at a time when the city faces limited revenues for critical public policies affecting the availability and protection of low-cost housing and public safety needs, among others. 

The BOE also indirectly permitted the advance of a process that could ultimately suppress the voice and influence of voters of color for decades to come — although Gary Thompson, the board’s chair, wrote in the ruling that “we cannot interfere with the right of initiative based on such speculative concerns, particularly given the lack of evidence of an incurable discriminatory impact and the fact that the Measure is neutral on its face.”  

That essentially means the BOE dismissed statistical information provided by opponents during its public hearing, and took no time to consider data already in its possession or that provided by the DC auditor about election challenges that persist in some parts of the city. 

It appears that the BOE, as an independent agency led by mayoral appointees, may have overstepped its legal authority with cavalier arrogance, in the view of sources with whom I spoke.

“It has far-reaching implications, and it forces our hand,” Council Chair Phil Mendelson admitted to me Friday, a few hours after the Elections Board declared that the initiative, — which would impose ranked choice voting (RCV) and establish open primaries as early as 2026 — would not violate the U.S. Constitution, the Human Rights Act, the DC Home Rule Act, or a prohibition against any citizen-derived ballot measure appropriating existing or new revenues.

In making their ruling, Thompson and his board colleagues embraced the contorted advisory opinion of DC Attorney General Brian Schwalb, who asserted that even if the act produced a “negative fiscal impact … it is nonetheless a proper subject because it ‘condition(s) … compliance’ on Council funding by being subject to appropriations.”

Despite that statement, Schwalb acknowledged in his legal opinion various costs associated with the implementation of the act would force the BOE to run multiple election tabulations as opposed to one. It would require additional staff, additional equipment and technology, and new ballots for unaffiliated voters. 

Unsurprisingly, Joseph Sandler, the attorney for the Make All Votes Count campaign, when answering a leading question from Thompson during last week’s public hearing about the efficacy of the AG’s position, asserted that Schwalb — not the council’s General Counsel Nicole Streeter — presented the “superior argument.” 

Streeter had said in part that adopting the AG’s position would have the effect of nullifying DC’s laws governing the initiative process by applying the “subject to appropriations” approach in this case and potentially future situations..

“It’s a little too clever to say this does not affect the budget,” Mendelson said about proponents’ budget-neutral claim. 

So, what does the council plan to do about a BOE that seemed to have not just ignored the law but dismissed the opinion of DC’s appropriating body? Are legislators prepared to appeal the ruling to the DC Court of Appeals? 

“That’s a tough call,” Mendelson said, noting that councilmembers are on a two-month summer recess. “I would have to convene a special meeting.” He also asserted that  he’d be reluctant to send the general counsel into court without unanimous agreement from his colleagues. 

The next step for the BOE is to approve the title, summary statement and legislative format, according to the agency’s public information officer. Those items would then be published in the DC Register. “If any registered qualified elector objects to the summary statement, short title, or legislative form of the referendum measure formulated by the Board … that person may seek review in the Superior Court of the District of Columbia within 10 calendar days from the date the Board publishes,” according to the BOE website.

It’s hard to fathom how any decision could have been made so far about whether or not new revenues would be needed to implement the initiative. It was only after the BOE ruled that the agency’s General Counsel Terri Stroud announced it would ask the city’s independent chief financial officer for a statement measuring the potential fiscal impact of the proposal; that is due by Aug. 14.

That process makes no sense whatsoever. If it’s not a case of putting the proverbial cart before the horse, I don’t know what is. Even with a “subject to appropriations” decision made in the past by legislators, there was a clear understanding of the price tag for a legislative proposal. 

The fight over RCV has consumed members of the far-left political wing of the local and national Democratic Party for years. In 2021, recently elected at-large Councilmember Christina Henderson, an independent in name only, introduced the Voter Ownership, Integrity, Choice and Equity (VOICE) Amendment Act of 2021.

I love the way politicians, political operatives and far too many advocates engage in subterfuge. For example, they use a euphemism like VOICE to prevent the public from realizing exactly what they’re up to. This year it’s “Make All Votes Count.”

Advocates know, I believe, that if they call the thing what it is — ranked choice voting — most people won’t know what that is and will ask a ton of questions that might reduce their support. Consequently, the public is invited to a masquerade ball.

While VOICE was introduced with the support of at-large Councilmember Elissa Silverman, Ward 1’s Brianne Nadeau, Ward 2’s Brooke Pinto, Ward 3’s Mary Cheh, Ward 4’s Janeese Lewis George and Ward 6’s Charles Allen — and more than 120 people signed up to testify during a public hearing — the bill never moved out of the Committee on the Judiciary and Public Safety. BOE Executive Director Monica Evans testified during those proceedings; she acknowledged the costs associated with implementing RCV. 

Back then, political leaders, residents and experts, including some who generally support RCV as election policy, made strong opposing arguments about adopting it here. Charles Wilson, chair of the DC Democratic State Committee, which officially voted against the measure, discussed the difference in voter participation in sections of the city. He said he thought a voter education campaign, as proposed, was a good idea but wouldn’t solve the fundamental issue. 

“Low turnout cannot be strictly linked to candidate choice. General apathy, concentrated poverty, literacy issues, and difficulty in completing the ballot also stand in the way of full participation in our elections,” Wilson said at the November 2021 hearing. “RCV would further tilt greater electoral influence to more affluent parts of the District.”

Renee Bowser, a Ward 4 committeewoman in the DC Democratic Party who normally stands in the far-left corner, argued that “RCV does not produce a majority winner in elections; the evidence is mixed whether RCV increases voter participation, particularly by people of color; [it] does not favorably impact candidates of color; [and it] does not remedy non-participation by disaffected and low-income voters.”

Brian McCabe, an associate professor of sociology at Georgetown University, co-authored a report on DC’s Fair Elections program — another favorite of DC’s far left — and found it “did little to rectify inequalities in participation across neighborhoods.” In this instance, he offered that instead of adopting RCV, the council should opt for a “top-two system, ideally paired with the discontinuation of partisan elections in the District.”

“In a top-two system, all candidates participate in a primary, typically without regard to party affiliation. The top two candidates move on to the general election,” explained McCabe. “This type of system ensures that voters in the general election have a real choice on Election Day in November, rather than simply rubber-stamping the choice of the Democratic Primary voters. It is commonly used in cities.” 

It’s true the discussion around the Make All Votes Count Act so far is principally about whether the initiative should be on the ballot — or, more precisely, whether proponents should get the chance to collect the signatures necessary to qualify for inclusion. However, you better believe advocates were not being myopic when they framed their proposal to the BOE.

As a political observer and commentator, I must admit that this time around proponents developed an impressive strategy despite the disingenuous naming: The campaign’s top leaders include two African American voters who live east of the Anacostia River, which may help reduce the possibility that RCV could be perceived as purely a white, rich thing. 

Proponents tied RCV to quasi-open primaries, knowing a generous portion of the more than 85,000 voters who are not affiliated with a traditional party might be inclined to vote for an initiative that brought them into the center of political activity. 

They seemingly persuaded the OAG to twist and turn like a pretzel, developing the opinion that the initiative isn’t appropriating money because, well, it’s the council who ultimately would make that decision. Except the council can’t make that decision until after the vote. 

If voters approve what is now called Initiative 83, the council would be in a box, as Mendelson acknowledged to me. Proponents would undoubtedly contend that legislators must approve funding or experience the wrath of the voters.

The pièce de résistance: RCV and open primaries would take effect in 2026 — in time for the next mayoral and council chair races. And those, dear readers, are the prizes being sought by local far-left Democrats. Not surprisingly, they have been salivating for control of the top political levers in the DC government.

In the 2022 Democratic Primary for mayor, Muriel Bowser pulled in 62,391 (49.01%). At-large Councilmember Robert White garnered 51,557 (40.5%) of the votes. It was essentially a two-person race, with Ward 8 Councilmember Trayon White finishing a distant third. 

Mendelson faced progressive favorite Erin Palmer for council chair. She won 56,671 (46.44%) of the votes, while he captured 64,877 votes (53.16%). 

Mendelson was the only citywide officeholder in local elections to win over 50% of the votes in his primary race; in other words, he actually entered his fourth term with a voter mandate — which puzzles me when he acts as if he is weaker than other politicians in office.

Bowser’s and Mendelson’s positions of strength could certainly be altered by the inclusion of political independents in 2026. And now you know why RCV is connected to open primaries. 

What’s in a name? Political power. Unless someone goes to court and stops Make All Votes Count — or, as it should be called, ranked choice voting.

---

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.