City Desk

GOP Claims Michael Brown Ineligible to Claim Council Seat

D.C. Republicans have submitted a letter this afternoon to the Board of Elections and Ethics demanding that Michael A. Brown be ruled ineligible to claim the at-large council seat he won on Nov. 4.

The argument [PDF] rests on the language of the District's Home Rule Charter, which states that no more than two of the four at-large members three of the five members elected at-large (including the chairman) can be "affiliated" with the same party. Brown, the D.C. GOP argues, is clearly affiliated with the Democratic party, making him the fourth at-large Dem, in addition to Kwame R. Brown, Vincent C. Gray, and Phil Mendelson.

Brown, son of former Democratic National Committee chair Ron Brown, had changed his voter registration in May from Democratic to no-party status. Since then, however, he has repeatedly expressed his support in public forums for the Democratic presidential ticket and billed himself as an "independent Democrat" in his campaign literature.

The Repubs cite both of those facts as evidence that Brown is really a Democrat. The letter was drafted by lawyer Charlie Spies of McKenna Long & Aldridge on behalf of the D.C. Republican Committee. The board had planned to certify the general election results Monday.

Brown says the filing was no surprise, and that he's a true independent. "That's what my registration card says," he tells LL.

BOEE spokesperson Dan Murphy was not immediately available for comment.

Spies says he's confident the board will refuse to certify Brown's win. And if that doesn't happen, he says, "We are preserving all options." Board decisions can be appealed to the D.C. Court of Appeals.

UPDATE, 2:23 P.M.: Murphy says that the board has received the letter and its legal counsel will review it. He notes that the board has no real procedure for a challenge filed prior to certification; after the results are certified, he says, there is a 7-day challenge period provided for in board regulations.

"In terms of the law and our process" Murphy says, "there's no such thing as a pre-certification challenge."

UPDATE, 8:00 P.M.: In response to Murphy's point, Spies points to a portion of District law—D.C. Code §1-1001.10(b)(1), if you must know—contemplating the possibility that a candidate is "declared ineligible" in the period between election and certification, requiring the spot to be declared vacant. "I agree with Mr. Murphy that the Board doesn't have a clear internal procedure for how to deal with this," he writes in an e-mail, "but that lack of precedent/clear procedure does not give the Board a free pass to ignore clear DC Code."

Photo by Darrow Montgomery.

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  • Tom

    This will actually b very interesting. I doubt the DCBOEE will do the legal thing and rule Mr. Brown ineligible. However, in court this could be messy especially if it gains national attention as a way to subvert the home rul charter.

  • Ryan Grim

    He's obviously a Democrat. Even more obviously "affiliated" with Democrats. The challenge makes sense. Though the law itself does not. If voters want 13 Democrats, who cares?

  • Reid

    As much as I would love to see Michael Brown's council career end before it begins, I just don't think DCBOEE or even the courts will side with the Republican party on this. It's just too easy to rule that affiliated means "member of". The alternative is untenable. Would Catania be considered "affiliated" with the Democrats for actively supporting HRC? Courts usually prefer a bright line test over a facts and circumstances analysis. In this case, voter registration is a bright line. They'll use that.

  • FourthandEye

    As much as I don't want the man to be a councilmember wasn't the appropriate time to contest Brown's independent status before the election?

  • Erik Wemple

    Great points here. The only thing I'd add is that if the Republican Party really wants to stake its strategy on a law that reserves seats for the non-majority party, it's in even more desperate straits that I'd thought. I mean, this is a set-aside, electoral socialism, and the party is hanging its full hope for the future on that.

  • pathetic

    How about Obama and the new congress change the city's home rule charter? No (electoral) socialization without representation! Stand up, people!!

  • Reid

    If Brown were disqualified, who would win? There were more write in votes than there were for Mara, but not all the write in votes could be for Carol. Would Mara slip through?

    The only hope I can see for the Republicans to get a seat back is if Evans wins the Council chair (which could happen if Gray runs for mayor in 2010, thus enabling Evans to run for the Chair.) If the Ward 2 chair were open, I think they could make a decent run for it if they got their sh*t together. I mean look at Christina Culver. She doesn't know crap about DC politics, only started to run about two weeks before the election, and still won 17% percent. Not much but not bad considering the circumstances. Throw in the fact that Ward 2 will probably be geographically smaller after the 2010 census (i.e. fewer Shaw votes), and Republican prospects improve even more. Still a long shot, certainly, but a determined liberal Republican in the mold of Mara could pull it off.

  • Arthur Delaney

    Here's another question: Who is the biggest phony in this at-large race?

    Hint: not Carol!

  • Erik Wemple

    David Catania stands as the great hope for Republicans. In '97, he won in an open special election as a Republican. As in any special election, though, there were special circumstances--low turnout and a woeful Democratic candidate in Arrington Dixon. Could a Republican pull off the same thing in a first-Tuesday-in-November election. I'd say no. If Jack vacates the Ward 2 seat, for example, there'd be plenty of really good and aggressive Dems who'd be ready to follow. A Republican of any mold would be killed in that race.

  • another view

    "I mean look at Christina Culver. She doesn’t know crap about DC politics, only started to run about two weeks before the election, and still won 17% percent. Not much but not bad considering the circumstances."

    Don't credit Culver. Evans ran unopposed 4 years ago and still got only 82% of the Ward 2 vote. There's a solid core that will not back Jack.

  • Reid

    Could a Republican pull off the same thing in a first-Tuesday-in-November election. I’d say no.

    But that's just it. If Gray runs for mayor in 2010, he can't also run for Council Chair (or at least not very aggressively). Thus opening the way for Evans to run for the seat. Evans term doesn't end until 2012, so a special election would be called to fill his seat if he won the council chair. The more "really good and aggressive" Dems there are, the easier it is for a Republican (Or Statehood Green for that matter) to pull it off.

  • Reid

    Evans ran unopposed 4 years ago and still got only 82% of the Ward 2 vote.

    No, he wasn't unopposed in 2004. And the Republican only got 9% then. Maybe the Republican in 2004 campaigned even less than the futile Culver campaign, but keep in mind that in 2004, 15 percent of Ward Two voted for Bush. This year, only 12 percent voted for McCain. So in a year when fewer Ward Two voters were voting for a Republican president (both as a percentage and in real numbers), almost twice as many were voting for a Republican ward CM. We're still comparing mole-hills here, but put it in a special elections context, and those mole-hills might be mountainous.

  • JMT

    I voted for an independent be a councilmember. The DC Republican Party can kiss it where the sun does shine. The seat was won by an independent from ward 4, wasn’t it? The appropriate time to contest Brown’s independent status was before the election. Now go and play out on the whitehurst freeway you bunch of losers- Sincerely A DC Democrat

  • Not Likely

    Their complaint is not likely to amount to much. The Home Rule Charter says that at no time shall there be more than 3 At-Large members, including the Chairman, who are affiliated with the same politcal party.

    It does not say anything about elections or who can be elected to the Council. So even if a Court were to define "affiliated" and determine that Brown was indeed "afiliated" with a the Democratic Party, he could still serve as long as he was not affiliated on his swearing-in date. In other words, he has until January to disaffiliate.

  • JohnD

    I also don't see how this is going to fly. I have also seen that party "affiliation" is determined by who you are registered with. If Brown had changed his to a Republican before the vote, could the DC GOP have callenged that? I don't think so. So how can they claim that by changing to an independent, he is still a Democrat? It just doesn't make sense and won't fly.

  • Babs

    Oh my goodness Carol you lost give it up. Go home and play with your grandchildren like Linda did.

  • Bubba

    Brown running as an independent was a total sham, form over substance all the way, and I hope BOEE has the nads to call him to the carpet for it. Democrats and republicans alike shouldn't stand for it--democrats wouldn't vote for him over other democrats in the primary (because there are better democrats to vote for), and certainly republicans/independents wouldn't vote for him in the primaries, either (because there are more true republican/independent candidates than him), yet we all get stuck with him anyway. Like the law or not, it is what it is, and if you let Brown him wink, wink, nudge nudge on this, there's no telling what else he will wink, wink, nudge nudge on.

  • KCinDC

    1. Brown's switch from Democrat to independent to run for at-large is nothing new. Bill Lightfoot was successful doing the same thing in 1988 and again in 1992. (And Marion Barry was unsuccessful with a similar attempt in 1990, in a campaign that overlapped with his trial.)

    2. I'm pretty sure most of those Culver votes were just anti-Evans votes energized by Cary Silverman's campaign, not Republican sympathizers.

    3. The election in which David Catania beat Arrington Dixon was the only time a Republican has beaten a Democrat in DC, and it was a very strange one. It was a special election with two Democrats running, and the second Democrat drew off enough votes from Dixon that Catania managed to win. The combined votes for Democrats exceeded those for Catania. As Reid says, something similar could conceivabl happen again in a special election if the Democratic vote is split up enough -- but if the office is anything but an at-large council member I seriously doubt the Republican could be reelected when the normal election comes around.

  • another view

    Reid- I should have written "practically unopposed".
    Check the 2004 primary results at:
    The R and SG candidates, which got a 17% combined vote in the general, only got 100 votes combined in the primary. And I don't even remember their names 5 minutes after checking the report. My point is that Jack's negatives hover at a solid 17%, and that Christine did nothing to expand that base.