For 30 Years, DC Failed to Follow Law on Publishing Election Results in DC
"I am writing to see if you can help me understand where I can find the DC Board of Elections published election results in the DC Register as required under DC law..."
An email from this paper in February 2022 to the DC Office of Attorney General sought answers on the absence of election results in the DC Register. The Board of Elections is required to publish the results of each election and the nominees or winners in the DC Register. It failed to do so for nearly 30 years until prompted by that email. Results from 1992 through June 2022 were finally published in the DC Register in July 2022.
This incident reflects the dire state of governance within both the executive and legislative branches of government. The Board of Elections went decades without publishing in the DC Register, except for a brief period between 2008-2010. The DC Council did not exercise adequate legislative oversight throughout the 30-year period. The implications of this story go well beyond an accidental technicality. This case exposes the District to legal challenges and reveals needed reforms to the DC Home Rule Charter, starting with a larger legislature.
In a case filed in DC Superior Court in September 2022 by the editor of this paper, the complaint argued that DC law stipulates that any rule or document of general applicability, to include DC election results, does not become effective until they are published in the DC Register. Where DC law requires publication in the DC Register, the timing of legal effect occurs. As argued in the complaint, elected officials lacked legal authority.
The District countered that election results did not fall under a rule or document of general applicability. It did not acknowledge that elsewhere in DC Code, the Board of Elections is expressly pursuant to regulations of general applicability (§ 1–1001.05. Board of Elections — Duties). While the court dismissed the case on standing - lacking "concrete and particularized injury that is fairly traceable to Defendant’s actions - it did not rule on the merits. Future cases that can establish standing could seek judicial review whether the conduct of elected officials was unlawful and seek legal remedy for injury arising from laws passed between 1992 - 2022.
The more important issue for the public and Congress concerns DC's outdated Home Rule Charter, which provides for a strong mayor system and relatively weak legislature. The legislature is too small to provide adequate oversight of the DC government, including compliance with the law and spending. It explains why the Board of Elections did not publish election results for nearly 30 years without Council oversight.
The District has one of the highest per capita spending among US cities. Its budget size dwarfs most major cities, second to New York. "The District’s finances continue to be the envy, and among the strongest, of any jurisdiction in the nation," stated Mayor Muriel Bowser in the 2023 financial report. The 13-member DC Council does not have the capacity to legislate, provide constituent services, and provide adequate oversight of government agencies. This limitation has hamstrung the legislature and has become corrupting and anti-democratic. In fact, it has contributed to a perpetually scandal-plagued city. Robust oversight is too often only triggered with existential crises or high-profile news stories - the federal audit of the DC Housing Authority, loss of accreditation of the DC Crime Lab, mismanagement at the now-defunct Department of Consumer and Regulatory Affairs, DC COVID money spent ‘outside the law', regulators shutting down United Medical Center’s obstetrics ward after finding “serious medical errors in the treatment of pregnant women and newborns,” and Child and Family Services Agency leaving 75 vouchers for former foster care youth unused. These are hardly comprehensive to paint the full picture.
With so few legislators, DC councilors who experience extended illness or leave of absence or who are simply ineffective can upset the system of checks and balances - robust fact-finding and oversight. DC Chairman Phil Mendelson removed Ward 7 Councilor Vincent Gray from his role as chair of the Committee on Health in January of this year, citing concerns about Gray’s health as the reason for his removal. Gray's attorney claimed that performance of the Committee on Health was not related to removal. That is unlikely. Mendelson told the Washington Post that “Council members are concerned about Vince’s recovery and felt it would be better to give him a lighter load.” Gray filed a charge of discrimination against DC Council in March. The committee restructuring this Council term to include the new Committee on Hospital and Health Equity, which Gray chairs, speaks to a larger issue of the inadequate size of the legislature. Committee reshuffling would not have been necessary with a more robust legislature.
In January 2021, Mendelson made a similar move when he facilitated the Committee of the Whole assuming oversight of District’s public and public charter schools away from a stand-alone Committee on Education. While Mendelson's public view purported "to use oversight to press the public schools to move faster and further in closing the achievement gap and ensuring quality schools throughout the city, not just in certain neighborhoods" according to a local paper, it is widely believed that the genuine issue was the ineffectiveness of former DC Councilmember David Grosso, who chaired the Committee on Education.
The damning federal audit of the DC Housing Authority in late 2022 was a direct result of the ineffective and lax committee leadership of at-Large Councilor Anita Bonds, who chaired the Committee on Housing until this Council term. Bonds, an ally of the mayor and the developer cabal, facilitated the deep rot in the agency, which is seeing its fourth director in recent memory. Bonds, like many DC committee chairs, had too much concentrated power. She was willing to dispense with common sense, effective oversight, and democratic accountability to protect her political allies and minimize scandal and impropriety.
Reforming DC Home Rule Act
In the Southwest Voice January 2023 issue, we implored Congress to change the District's Home Rule charter to add a bicameral legislature comprised of the DC Senate and House of Representatives. This would relieve Council of the immense and impossible set of challenges to ensure the rule of law, public accountability, and government effectiveness. It would also deconcentrate power, which has become corrupting on DC Council. More oversight committees translate to better government. A lower house means that government comes closer to the people. Officially, Congress is the ultimate legislature for the District, as spelled out in the Home Rule Act. Until recently, it has infrequently intervened in its internal affairs. Statehood or no statehood, intervention is needed immediately to put the District on a proper course of good governance. It is an equity issue. The District's immense wealth should be producing better outcomes to narrow vast social inequality. Well-resourced oversight would make agencies much more accountability.
Bicameralism is a centuries-long American tradition at federal and state levels. "The decision by the Framers of the Constitution to create a bicameral legislature was not based solely on their notion of what would constitute a good law-making body; it was also based on practical political considerations. The Framers reasoned that a two-chamber legislature provided a significant benefit: the means of checking and controlling possible abuses of legislative power. By dividing power, the Framers believed they had created, as Madison noted, two "different bodies of men (and women) who might watch and check each other." (house.gov). All US states, except Nebraska, have a bicameral legislature.
Proposal for District Legislative Body
DC Senate - Include current council positions (13) and add 20-30 District Senators.
DC House - There are roughly 300 Advisory Neighborhood Commissioners. The "lower house" should be based on this structure with single member districts (SMDs). 300 SMDs is likely too many, so it would be beneficial to pare down by half. ANCs predate the Home Rule Act of 1973 and has shown to work well.