by Brad Tobias, Contributor
When asked, many District of Columbia residents will be quick to point out that the district is not a state, and is subject to the control of Congress, per the U.S. Constitution. The slogan “Taxation without Representation” adorns the city’s vehicle license plates, and it is an issue which fires up many residing in the “202”. While the merits of this question are actively debated, they are not the subject of this modest post. However, one particular consequence of constitutionally-mandated Congressional control over the district is that many laws passed by the D.C. Council, the district’s elected rulemaking body, are subject to congressional approval before they take effect. While almost all D.C. legislation is approved by Congress – in fact, in the past 40 years Congress has only vetoed D.C. legislation 3 times – there is a congressional review period, and thus a wait-time, of 30 legislative days before D.C. legislation may be approved. This wait time can be critical, especially when elections and election cycles are fixed dates by law.
In Washington, D.C., unlike most states, the Attorney General (“AG”) for the District has traditionally been appointed by the Mayor with the approval of the D.C. Council, rather than by popular election. But in 2010, D.C. voters elected by voter initiative to change that practice and switch over the determination of the AG office to a general election, starting in 2014. Or at any time after January 1, 2014. When exactly the office was to convert to an elected position is the subject of a new lawsuit filed by hopeful AG candidate and well-known D.C. criminal lawyer, Paul Zukerberg. Though the ballot initiative which District voters approved contained language that “residents of the District of Columbia would begin voting for the Attorney General in 2014,” the actual implementing regulations (“Section 201”) passed by the D.C. Council which amended the official District of Columbia Charter stated that “the first election for the position of Attorney General shall be after January 1, 2014.”
So why does the difference in semantics matter so much? Although the D.C. Board of Elections and Ethics (“DOEE”) placed the office of AG on the 2014 primary and general election ballots, the D.C. Council passed a new law on October 1, 2013 (the “2013 Act”) removing the office of the elected AG from the 2014 ballots. The 2013 Act actually postponed the AG election “not before January 1, 2018.” In his lawsuit filed against the government of the District of Columbia, Zuckerberg claims that the D.C. Council’s postponement of the AG election violates the constitutional right of the D.C. electorate to vote as well as constitutional notions of substantive due process. Zuckerberg’s legal theory is that D.C. Council’s legislation nullifying the 2010 ballot initiative violates the D.C. citizens’ right to vote, infringing upon their First, Fifth and Fourteenth Amendment Rights. However, the District responded that the 2010 statute implementing the ballot initiative is the only text that is legally relevant, and that the “after January 1, 2014” is not inconsistent with holding the election for AG in 2018. Essentially this comes down to a battle of statutory interpretation, with both sides citing persuasive authority as to why or why not a right to vote for the AG in the 2014 election cycle was created.
Nevertheless, the interesting dispute over statutory interpretation may never play out: District Court Judge James E. Boasberg conducted a hearing for a preliminary injunction enjoining the implementation of the 2013 Act on Thursday, November 7th. That hearing largely focused on standing issues presented by the congressional review process of D.C. law discussed at the outset. According to the Washington Post, Judge Boasberg “appeared skeptical at points on whether he could enjoin a law that hasn’t taken effect yet.” The District’s argument that the case is not ripe for review may be quite convincing. In the bulk of its 31-page opposition to a motion for preliminary injunction, District attorneys pepper on arguments regarding ripeness of the 2013 Act for review, stating that Zuckerberg’s challenge is not ripe because it “presupposes…that the 2013 will become effective law.” With the congressional review period waiting time, the earliest Congress could approve or disapprove of the 2013 Act delaying the AG contest would be December 20, 2013.
Judge Boasberg is expected to rule on Zuckerberg’s motion for a preliminary injunction enjoining the 2103 Act in the coming week. If a ruling comes for Zuckerberg, that may immediately trigger several AG candidates to officially announce their candidacy and begin their campaigns, as the campaign cycle was set to open on November 8, 2013.