Sobin v. D.C. Board of Elections

District of Columbia

Court of Appeals DEC26 2024

No. 24-AA-1124

DENNIS SOBIN,

Petitioner,

V. ANC-2A09

D.C. BOARD OF ELECTIONS,

Respondent.

BEFORE: McLeese and Deahl, Associate Judges, and Thompson, Senior Judge.

JUDGMENT

(FILED-December 26, 2024)

In this matter, Petitioner Dennis Sobin challenges the decision of the Board

of Elections (BOE) to declare no winner for Advisory Neighborhood Commission

Single Member District (SMD) 2A09, after determining that the individual receiving

the most write-in votes was not eligible. Sobin contends that, because he was the

only SMD 2A09 vote recipient to file an affirmation for candidacy post-election, he

was the only “candidate” for that seat and thus the winner as he was the

“candidate . . . receiving the highest number of votes” per D.C. Code § 1-309.07.

BOE moves for summary affirmance, arguing that Sobin was not the only write-in

candidate and that under the “American Rule,” a runner-up cannot be declared the

winner if the top vote-getter is ineligible. Sobin also submitted a newspaper article

to support his argument and BOE has filed a motion strike the newspaper article.

For the reasons that follow, we grant the motion to strike the newspaper article, treat

BOE’s motion for summary affirmance as its brief, and decline to set aside the

Board’s certified results.

We grant the motion to strike the newspaper article because “[o]ur

review . . . is limited to the evidence in the administrative record before the agency.”

Yazam, Inc., v. D.C. Dep’t of For-Hire Vehicles, 310 A.3d 616, 628 (D.C. 2024)

(internal quotation marks omitted).

Our review of election certification is limited and we can “set aside” the

Board’s certified election results and “void the election in whole or in part” only if

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we determine “that there was any act or omission, including fraud, misconduct, or

mistake serious enough to vitiate the election as a fair expression of the will of the

registered qualified electors voting in the election.” D.C. Code § 1-1001.11(b)(2);

see also Jackson v. D.C. Bd. of Elections & Ethics, 770 A.2d 79, 81 (D.C. 2001) (“In

order to obtain relief, the petitioners’ burden is not only to show defects or

irregularities in the election; petitioners must prove also that the flawed election led

to a result that is not true.”) (brackets and internal quotation marks omitted). Sobin

argues that he was the only candidate in this election because he was the sole write-

in vote recipient to file a post-election declaration of candidacy. We are

unpersuaded. The relevant statute, D.C. Code § 1-309.07, states that the “candidate

in each [SMD] receiving the highest number of votes cast in such election shall be

declared the winner,” but does not define candidate or limit the definition to one who

files the requisite affirmation. In Bates v. D.C. Bd. of Elections & Ethics, 625 A.2d

891 (D.C. 1993), this court explained that under the “American rule,” the person

who receives the most votes but is deemed ineligible is viewed as a candidate whose

votes must be counted in determining the election results, and that a runner-up

finisher cannot be declared the winner in the event the winner is disqualified. See

id. at 895 (“[V]otes cast for a deceased, disqualified, or ineligible person are not to

be treated as void or thrown away, but are to be counted in determining the result of

the election as regards to other candidates. . . . The result of its application in such

cases is to render the election nugatory, and to prevent the election of the person

receiving the next highest number of votes.”) (internal quotation marks omitted).

Thus, Bates explained that D.C. Code § 1-258 (1992 Repl.)—now codified as D.C.

1-309.07—“cannot be read to permit the Board to certify as a winner a candidate

who did not receive the greatest number of votes in an election.” Id. Although Bates

concerned two candidates whose names were printed on the ballot, we discern no

reason to depart from the American rule in the write-in context. We acknowledge

that 3 D.C.M.R. § 600 et seq. is somewhat confusingly worded and includes terms

not mentioned in the relevant statutes. Compare 3 D.C.M.R. § 600.2 (referring to a

“write-in candidate” and a “write-in nominee”) with D.C. Code § 1-1001.08(r)

(referring only to a “write-in candidate” and stating that such a “write-in

candidate . . .shall declare the candidate’s candidacy” in order “[t]o be eligible” for

election to the office for “which the candidate was a candidate,” without mentioning

the term “nominee”). But see 3 D.C.M.R. § 600.2 (stating that the terms used have

a specified meaning “[f]or purposes of this chapter” of the regulations).

Nonetheless, the relevant regulations concerning write-in votes clearly indicate an

intent to follow the American rule in the write-in context. See 3 D.C.M.R. § 602.10

(“If a write-in winner is declared ineligible after the election, no winner shall be

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declared.”); see also 3 D.C.M.R. § 602.6 (“No eligibility determination shall be

made for affirmants who are not apparent winners.”).

Accordingly, it is:

ORDERED that the motion to strike is granted and the newspaper article shall

be stricken from the petition. It is

FURTHER ORDERED that the motion for summary affirmance is denied.

Jackson, 770 A.2d at 80 (“To obtain summary relief, a movant must show that the

legal basis of the decision on review is narrow and clear-cut, and must demonstrate

that the facts of the case are uncomplicated and undisputed.”). It is

FURTHER ORDERED that BOE’s alternative request is granted and the

Clerk shall file the motion for summary affirmance as BOE’s brief. It is

FURTHER ORDERED and ADJUDGED that the result of the SMD 2A09

election is affirmed.

PER CURIAM

Copy mailed and emailed to:

Dennis Sobin

725 24 Street NW

#613

Washington DC 20037

dennissobin@yahoo.com

Copies e-served to:

Terri D. Stroud, Esquire

Christine Pembroke, Esquire

cml