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Prehearing Brief Filed

Prehearing Brief Filed

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Published by Martin Austermuhle

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Published by: Martin Austermuhle on Feb 26, 2013
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Paul Zukerberg files this prehearing memorandum to assist the Board in resolvingthis petition challenge. As discussed below, Mr. Zukerberg has filed a sufficient number of signatures to have his name placed on the April 23, 2013 ballot for D.C. Council-at-Large.The challenge of Mr. Tacelosky is without merit because (1) BOE has failed toupdate its voter rolls as required by law, creating mismatched addresses which do notreally exist, (2) converting “not registered” challenges to “mismatched address” violatesdue process, and (3) the Tacelosky challenge lacks specificity and is untimely.I. The Board’s Failure to Update Its Voter Roll, and Keep It Current, inViolation of the Statute, Caused 101 Voter Signatures to be ErroneouslyExcluded as Mismatched AddressesAny decision by the Board to disqualify Zukerberg would be “arbitrary,capricious, an abuse of discretion, or otherwise not in accordance with law,” given thatthe Board has failed to update its voter roll in violation of law.D.C. Code § 1-1001.07(j)(1)(A) requires that in January of each odd-numberedyear the Board “
shall confirm” 
the address of each registered voter (who did not confirmhis or her address through the voting process or through a change of address at the polls)
2 by mailing a first class nonforwardable postcard to the address listed on the Board’srecords. Should the Postal Service provide a forwarding address, the Board
“shall change” 
the address on its records to the new voting address. The mandatory languagerequiring a January 2013 Postal Service update could not be more explicit.It is an undisputed material fact that the Board failed to mail an addressconfirmation in January 2013, in contravention of its statutory obligation as found in D.C.Code § 1-1001.07(j)(1)(A). Accordingly, the BOE voter rolls used to verify Zukerberg’s petition addresses are not current, or in compliance with law.Based on BOE’s non-compliant database, the registrar rejected 863 signatures onZukerberg’s petition because the address on his signature petition did not match theaddress on the voter roles maintained at the Board. Zukerberg contends that the largenumber of alleged mismatches resulted from the Board’s failure to update its voter address rolls in January 2013 through the Postal Service, as required by law. Had theBoard’s voter rolls been updated in compliance with the mandatory statutoryrequirements, at least 101 signatures would not have mismatched. These erroneouslyexcluded signatures must be credited to Zukerberg’s total.To knowingly use non-compliant voter registration rolls as the basis for disqualifying a candidate is arbitrary, capricious and an abuse of discretion. The Boardhas an affirmative duty to follow the clear instructions of §1-1001.07(j)(1)(A) andthereby comply with its own rules. Its failure to update its voter rolls created apparentaddress mismatches which do really exist.To prove this, Zukerberg engaged the services Corporate Mailing Services, Inc.(“CMS”), a GSA-approved vendor supplying presort and database updating, based on the
3official Postal Service’s National Change of Address database (NCOA). CMS providesmailing and database services for the District of Columbia Department of Motor Vehicles, Maryland Division of Motor Vehicles, the Office of Personnel Management(OPM), Office of Veterans Affairs, along with other federal, state and local agenciesCMS was provided the BOE voter database via secure FTP uplink, and was askedto determine if any registered D.C. voters had changed their addresses with the US PostalService prior to their signing Zukerberg’s petition.CMS matched the BOE voter roll against the NCOA and immediately determinedthat 63,341 registered DC voters had current, official change of address forms filed withthe United States Postal Service. The CMS spreadsheet of all 63,341 matches is attachedas Exhibit 1 (“Voter Address Changes 15FEB2013”) (See Declaration of Julian Kasten,Exhibit 3) All 101 official change-of-address forms were accepted by the Postal Service prior to the signing of Zukerberg’s petition.When the NCOA address change database is matched against Zukerberg’s petition signatures, in the case of 101 signatures,
a double match is found 
. The PostalService provides two addresses in its NCOA database – the new address, and thecustomer’s old address. In all 101 signatures, the new Post Service address is an exactmatch with the address on Zukerberg’s petition sheets.The Postal Service NCOA database also supplies the customer’s old address, andin the case of these 101 Zukerberg signatories, the old address is an exact match with theaddress maintained by BOE. Both old and new addresses match exactly.Thus, it is proven that had BOE updated its voter rolls in January 2013, asrequired by law, 101 addresses would not have been rejected for mismatched address and

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