ANY District of Columbia resident or leader who cares about the city’s political independence and the ability of its legislature to establish laws and demand their enforcement — including in spirit — should be disturbed by the recent rulings of the DC Court of Appeals and the DC Board of Elections that kept attorney general candidate and current DC Council member Kenyan McDuffie off the June 21 Democratic primary ballot. Voters should also be troubled by the adverse effects of those decisions on the exercise of democracy and voting rights in DC.
McDuffie requested an en banc or full DC Court of Appeals review of the three-judge panel’s decision. That was denied.
Without a swift and decisive response that clarifies the law and its intention, the DC Council would be acquiescing to those narrow, flawed rulings. More importantly, it would be permitting another branch of government and a quasi-independent agency to usurp its authority as the institution responsible for establishing municipal standards of operation, codes of conduct, values and political boundaries, including who is qualified to run for office in the District. At their essence, these decisions impede the city’s ability to decide for itself the nature and character of its politics and political institutions. In that regard, their effect is much broader than it might seem at first.
What may have begun as a question about whether McDuffie is or isn’t qualified by statute to run for AG post has become — in my view and that of others I have spoken with over the past week — a fight over the legislative branch’s prerogatives and the preservation of those prerogatives.
At a press conference called last month by activist Ron Moten that featured several attorneys, ministers and union representatives, Johnny Barnes, a longtime practicing attorney in DC, asserted that the Elections Board — an unelected entity — “decided they would legislate.”
“What is more wrong than all the legalese is that there are people all over this country trying to take the vote from Black and brown people, and we have an agency that mirrors Donald Trump,” added Barnes.
This much is indisputable: The two rulings essentially hijacked the elected office of DC’s attorney general. They help reserve its leadership for an elite legal class whose members, in many cases, have nested in large corporate law firms with minimal or no interaction with District residents or their government prior to those attorneys’ decision to run for office. The general perception created by these rulings is that only well-established lawyers need apply.
Also troubling is that the hijacking was assisted by two associate judges with direct connections to the current attorney general, Karl Racine, who did not support McDuffie for the job and endorsed one of the other candidates.
Racine was on the judicial nominating committee from 2008 through 2013 that recommended Catharine Easterly be appointed associate justice. President Barack Obama made that appointment in 2011.
Loren AliKhan was appointed in 2013 as the OAG’s deputy solicitor general. In 2018, Racine elevated her to solicitor general. In 2022, she was appointed to the Court of Appeals by President Joe Biden. Three of AliKhan’s law clerks also once worked in the OAG under Racine.
It is all so incestuous. Should they have recused themselves from hearing McDuffie’s appeal?
Undoubtedly, when the OAG was established in 2010 by a voter-approved amendment to the Home Rule Charter, residents envisioned qualified candidates. I am certain, however, that few if any wanted the newly established office to morph into a haven for managing partners for firms like Venable LLP — formerly home to Racine and currently to his favored successor candidate Brian Schwalb — or Perkins Cole — home to candidate Bruce Spiva. It’s Spiva’s challenge of McDuffie’s qualifications that has brought the council to its present proverbial cross in the road.
The fight for an independent, elected attorney general for DC has been fraught with controversy almost from the beginning. Let’s remember, it was created because some members were dissatisfied with Peter Nickles, who had been appointed by Mayor Adrian Fenty and took office in 2008. Feisty, cantankerous but highly qualified, Nickles made enemies inside and outside the government. Among other things, he brought lawsuits against slum landlords and used-car lot owners, and his resolution of a rent strike at Marbury Plaza apartments advantaged the tenants. Nickles’ greatest sin was that he was wholly dedicated to Fenty and Fenty’s success.
That last bit stuck in the craw of some legislators, who decided an elected AG was the answer. Then, after 90,316 out of 119,184 voters agreed, the council — apparently channeling Gilda Radner’s Roseanne Roseannadanna character — said “never mind” once Fenty was out of office and tried to delay the actual vote until 2018, instead of 2014.
At one point, the DC Board of Elections refused to place the office on the ballot, a decision upheld by a Superior Court judge. Paul Zukerberg, a local criminal attorney, went to the DC Court of Appeals, which ruled in his favor — and in the interest of District voters, who weren’t being well-served by the council’s actions at that time. Initially, he was the only candidate for the office; soon there were many, including Racine, who laid out more than $300,000 of his own money to push his way inside.
After Racine won, he faced roadblocks that had been placed by former mayor Vincent C. Gray, who thought he was headed for a second term and didn’t want a new AG to break his stride. Gray wasn’t victorious in his reelection bid. However, incoming mayor Muriel Bowser adopted what Gray had developed.
Ironically, those issues came before the DC Council’s Committee on the Judiciary in 2015 for partial resolution. Guess who was chair of that panel then? Yes, Kenyan McDuffie.
In fact, as McDuffie indicated when announcing his candidacy for AG, he has not been anyone’s slouch when it comes to various legal and public safety reforms. Among other things, he introduced legislation requiring the use of police body-worn cameras; brought violence interrupters to the city through the Neighborhood Engagement Achieves Results (NEAR) Act; shepherded creation of the racial equity office in the council and in the executive branch; and advocated for the end of criminal background checks in housing.
But this is not a column to rescue his candidacy; besides, he has already suspended his campaign. McDuffie will determine his next best move.
The larger battle is how to prevent the three-judge panel from misdirecting District residents’ vision for their OAG.
Truth be told, I sensed some bias in the panel’s work. I was flabbergasted when Easterly seemed to suggest that council members were somehow negligent because they filed an amicus brief 12 years after the law establishing AG qualifications was written. While it’s true that in 2014 then-attorney general candidate Lateefah Williams sought advice from the Elections Board about whether she met those qualification standards, there was never any formal legal test. Legislators — former and present — filed their recent brief in response to what in effect was the first challenge of their law, which was brought in late March by Spiva in the form of a challenge to McDuffie’s nominating petitions.
Still, the three-judge panel, no doubt encouraged by Easterly, noted in their order that they were “unpersuaded that the twelve-years-after-the-fact views, expressed in an amicus brief, of some of the legislators who enacted the Attorney General for the District of Columbia Clarification and Elected Term Amendment Act of 2010 have any decisive bearing on our interpretation of § 1-301.83(a)(5)(D) as — and when — it was written.”
It was as if she and her colleagues were accusing the city’s elected council members of lying, noted one civic leader with whom I spoke. “There was a complete and total disregard for the legislative body.
“I think there was only one living former [council] member who didn’t sign that letter,” continued the civic leader. “It shows how serious they were in putting [it] together.”
Legislators must act. They need not introduce new law as much as clarify the existing statute, which can be done through emergency legislation or through the 2023 budget support act that is currently before them. While I don’t believe there is a need for a public roundtable in this instance, the council may find it an opportunity to gather comments from average residents as well as those in the legal arena; it would also foster discussion to make clear the issue is not just the political career of one man. However, whatever path is taken to effect the change, delays should not be acceptable.
My suggestion: You shouldn’t have to be an attorney to know who meets the qualifications to serve the people as attorney general.
There is a general election in November. The dual rulings could have the effect of slamming the door in the face of other potential AG candidates who are prepared for the job and who have made solid, measurable contributions to the District through their federal or local government employment. They shouldn’t be ruled out because they held jobs where they used their lawyerly skills but where being an attorney wasn’t a prerequisite — a class that isn’t limited to council members who happen to be attorneys.
Equally important, the council owes it to District residents to preserve prerogatives and the authority of the legislative branch of their government while freeing the OAG from the hostile takeover currently underway.
a version of this article first appeared on TheDCLine.org