Scolaro v. District of Columbia Board of Elections & Ethics

*94 GALLAGHER, Senior Judge,

concurring and dissenting:

I agree with the expressed concerns of the American Civil Liberties Union (ACLU) which eommendably filed an amicus brief in this case and argued at the hearing before this court. The ACLU charges that in the election being contested before the District of Columbia Board of Elections and Ethics “the Board deliberately failed to follow both its governing statute and its own regulations.” If so, this is a condition for serious concern in the District of Columbia, the voting process being at the root of the government. To the extent that a number of unqualified voters are permitted to vote for a certain candidate, the votes of that same number of qualified voters for an opposing candidate would be cancelled out and hence those voters would in effect be denied their civil rights in relation to that particular election. Wesberry v. Sanders, 376 U.S. 1 , 84 S.Ct. 526 , 11 L.Ed.2d 481 (1964).

In addition to that crucial concern, a review of the voter registration form being used in the District of Columbia reveals a striking defect in relation to the qualification to vote. (See Appendix to this opinion.)

It states that to register to vote one must, inter alia, “be a D.C. resident.” But at the end of the form is a space the voter registrant must sign under oath, and there it only requires a registrant to swear under potential penalty of five years in jail that “I live in the District of Columbia at the address above,” which statement must be signed by the registrant.

Consequently, while the form advises the registrants that they must “be a D.C. resident,” this requirement is later defined in the crucial part of the registration form carrying the voter’s oath and signature as meaning that one must merely “live in” the District of Columbia in order to qualify as a voter. And it is elementary that in order to qualify to vote in a jurisdiction more than just physical presence is required.

First of all, it is noted that on this voter registration form each of the requirements listed for a voter at the top of the form are literally repeated where the registrant must “swear or affirm” and sign, except that in defining the requirement at the top of the form that one must “be a D.C. resident” the later voter declaration effectively defines this as simply meaning one must be living in the District of Columbia. Although not argued by the ACLU, this is also a grave defect in the registration process and should be corrected. 1

It is well recognized that “living in” one or more temporary residences is different than having one fixed “residence” for purposes such as voting. As long ago as the beginning of this century, a court in this jurisdiction discussed the issue:

It is a law of our physical existence that one cannot be in two places at the same time; and it is equally our law of civil existence that there cannot be two places of residence, each with the intention of our remaining there permanently or indefinitely and of its becoming our fixed and permanent home. Of course we know that there can be, and there often are, two places of residence, between which one may divide his time.... But even in that case ... there must, ... for the purposes of the law, be some discrimination.

Authorities are not wanting, if any are required, to show that in statutes relating to taxation, right of suffrage, ... and the like, the term “residence” is used in the sense of “legal residence;” that is, the place of domicile or permanent abode, as distinguished from the place of temporary residence.

Downs v. Downs, 23 App. D.C. 381, 387-88 (1904) (citations omitted).

Our current election statute reflects the well-established distinction that “residence” for the purposes of voting requires more *95 than merely living in the District. D.C.Code § 1-1311(a) (1996 Supp.) commands “No person shall be registered to vote in the District of Columbia unless: (1) He or she meets the qualifications as a qualified elector as defined in § 1-1302(2),” which, in turn, defines a qualified elector, inter alia, as one “Who resides or is domiciled in the District....” D.C.Code § 1-1302(2)(A) (1992).

The election statute proceeds to define residence:

The term “residence,” for purposes of voting, means the principal or primary home or place of abode of a person. Principal or primary home or place of abode is that home or place in which the person’s habitation is fixed and to which a person, whenever he or she is absent, has the present intention of returning after a departure or absence therefrom, regardless of the duration of the absence.

Id. § 1-1302(16)(A) (1992).

The voter registration form at issue in this case is fatally flawed because it is inconsistent with the statute’s definition of residence. The form fails to measure the registrant’s intent and thus allows people to register if they merely “live in” the District regardless of whether it is their “principal or primary home or place of abode.” 2

The majority opinion rationalizes that if a registrant reads the entire form and reasons correctly on the contradictions in the form reporting the critical “residence” requirement, there is no problem. I should think that, rather, we should urge the Election Board to amend the form so as to get it right on this vital element. It would be a simple thing to accomplish.

Lastly, one may entertain the hope, along with amicus ACLU, that in future elections the Election Board will abide by its own rules and regulations, and thus assure the citizens of the District of Columbia that the votes of qualified voters will be cast without dilution by any unqualified voters.

I join the majority in referring this proceeding to the trial court for an evidentiary hearing, in aid of our judicial review function (D.C.Code § 1-1315 (1996 Supp.)), which can only be accomplished effectively in this proceeding after completion of appropriate fact-finding and conclusions by a trial judge acting in the role of a master for this court.

*96 APPENDIX

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. While it may be too late in this proceeding, as a practical matter, to remedy the faulty provisions in the registration form regarding the voter qualification of residence, or deal with the form further, it would appear that it is plainly a fundamental error in the matter of voter registration that in the public interest should be remedied promptly; and it would be a simple matter to do so on the registration form.

. Id. It is naturally assumed, however, that in the remand proceeding the trial judge will be aware that “residence” is required for eligibility to vote.