IN THE DISTRICT OF COLUMBIA BOARD OF ELECTIONS MICHAEL TACELOSKY

v. PAUL ZUKERBERG

PREHEARING MEMORANDUM ON BEHALF OF PAUL ZUKERBERG

Paul Zukerberg files this prehearing memorandum to assist the Board in resolving

this 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 to

update its voter rolls as required by law, creating mismatched addresses which do not

really exist, (2) converting “not registered” challenges to “mismatched address” violates

due 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, in Violation of the Statute, Caused 101 Voter Signatures to be Erroneously Excluded as Mismatched Addresses

Any decision by the Board to disqualify Zukerberg would be “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law,” given that

the 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-numbered

year the Board “shall confirm” the address of each registered voter (who did not confirm

his or her address through the voting process or through a change of address at the polls)

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by mailing a first class nonforwardable postcard to the address listed on the Board’s

records. Should the Postal Service provide a forwarding address, the Board “shall

change” the address on its records to the new voting address. The mandatory language

requiring a January 2013 Postal Service update could not be more explicit.

It is an undisputed material fact that the Board failed to mail an address

confirmation 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 on

Zukerberg’s petition because the address on his signature petition did not match the

address on the voter roles maintained at the Board. Zukerberg contends that the large

number 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 the

Board’s voter rolls been updated in compliance with the mandatory statutory

requirements, at least 101 signatures would not have mismatched. These erroneously

excluded 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 Board

has an affirmative duty to follow the clear instructions of §1-1001.07(j)(1)(A) and

thereby comply with its own rules. Its failure to update its voter rolls created apparent

address 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

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official Postal Service’s National Change of Address database (NCOA). CMS provides

mailing 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 agencies

CMS was provided the BOE voter database via secure FTP uplink, and was asked

to determine if any registered D.C. voters had changed their addresses with the US Postal

Service prior to their signing Zukerberg’s petition.

CMS matched the BOE voter roll against the NCOA and immediately determined

that 63,341 registered DC voters had current, official change of address forms filed with

the United States Postal Service. The CMS spreadsheet of all 63,341 matches is attached

as 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 Postal

Service provides two addresses in its NCOA database – the new address, and the

customer’s old address. In all 101 signatures, the new Post Service address is an exact

match with the address on Zukerberg’s petition sheets.

The Postal Service NCOA database also supplies the customer’s old address, and

in the case of these 101 Zukerberg signatories, the old address is an exact match with the

address maintained by BOE. Both old and new addresses match exactly.

Thus, it is proven that had BOE updated its voter rolls in January 2013, as

required by law, 101 addresses would not have been rejected for mismatched address and

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would have been added to Zukerberg’s total. The listing of the 101 corrected addresses is

attached as Exhibit 2. The address mismatch is an illusion, created by BOE’s failure to

update its list as required by statute. Zukerberg is entitled to have these double-matched

signatures added to his total, putting him over the 3,000 mark and on the ballot.

In addition to the failure to update addresses through section (j)(1)(A), BOE’s

antiquated database and computer system means that its address compliance is too

unreliable to be used in the serious matter of disenfranchising voters. The Board’s

February 4, 2013 After-Action Report of the November 2012 election details significant

reliability problems with BOE’s voter address database. Specifically, the After-Action

Report found that:

“After the election, it was apparent that many …voters attempted to change their addresses through DMV or on the BOE website; however the transaction was not completed, either because the hard copy of the address change wan to received or entered, or the electronic transmission from the DMV did not complete due to a voter registration database error.”

After-Action Report at 15. The November 2012 election saw an “unprecedented” number

of special ballots cast due to change of address errors or disputes. BOE is planning to

implement a modernized voter registration system in 2013. Until that time, its aging

system should not be relied upon, when the risk of disenfranchisement due to DOE

record keeping is the likely result.

To knowingly use an inaccurate VR system to deny voters their petition rights

would be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.”

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II. The Registrar Erroneously Converted 436 of Tacelosky’s “Not Registered” Challenges to “Mismatched Address,” in Violation of the Rules and Zukerberg’s Due Process Rights

Assuming, arguendo, that the Board had complied with its obligation to update its

voter rolls, any disqualification based on mismatched addresses would nonetheless be

improper because it would be a denial of due process. Tacelosky originally challenged

427 signatures for “mismatched address” and over 1,000 for “not registered.”

During the review process, however, the registrar converted 436 of Tacelosky’s

“not registered” challenges into “mismatched address” challenges, bringing the total

number of mismatched addresses to 863. This doubling of alleged mismatched addresses

by the registrar during her review violates the specificity rules of the BOE, and

Zukerberg’s due process rights.

The rules require that a challenger file a written statement, which “concisely

specifies the alleged defect(s) in the petition.” See, 3 DCMR §1609.2 Specificity is the

key component of any challenge, as the rule makes clear:

“For example, if the ground upon which a signature is challenged is that the signature is not dated, such challenge shall be expressed as follows: ‘3 DCMR § 1607.5(d)’”

Tacelosky failed to challenge mismatched addresses in relation to the 436 signatures later

converted by the registrar – even though the basis of this potential specific challenge was

available to him during the 10-day challenge period. His failure to specifically allege

mismatch address is fatal.

To allow one specific challenge to morph into another would destroy the

specificity requirement. All challenges would become general challenges. A challenger

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could write “illegible” 3,000 times – and under a general challenge scheme, the registrar

would have to check all the signatures, for all possible defects. This is not the law of the

District of Columbia. Challenges must rise and fall on the specific allegation.

To hold otherwise would violate due process. The challenge system requires that

a candidate be given notice of the specific challenge allegation at the time the challenge

is filed. In this case, Zukerberg was not informed that 436 signature challenges had been

moved from one category to another until the prehearing conference, nine days after the

challenge period expired. Zukerberg had no opportunity to object, respond or cure – the

hallmarks of due process.

There is another more specific reason why a challenge cannot be transformed

from “not registered” to “mismatched address.” If the signatory is not registered, the

defect is fatal, and the signature is not counted. There is nothing a petitioner need do, or

can do, since the registrar is tasked with making the registration determination.

Not so with mismatched addresses. With a mismatched address challenge, the

petitioner has a statutory 10 days to cure the mismatch, by filing a change of address

form. Here, it was not until the prehearing conference on February 13, 2013 - 9 days after

the challenge period closed, that Zukerberg was informed that 436 challenged signatures

had been moved from “not registered” to “mismatched address.”

This reclassification of challenges denied him notice and his statutorily mandated

opportunity to cure with regard to these 436 reclassified challenges, because the cure

period would expire just one day later. Reclassification to mismatched address denied

Zukerberg notice and an effective opportunity to cure – the hallmarks of due process.

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III. Tacelosky’s Renewed “Duplicate” Challenge Lacks Specificity and is Otherwise Untimely – The Board Lacks Jurisdiction to Consider it

On February 4, 2013, the last day for filing petition challenges, Tacelosky filed a

challenge to Zukerberg’s nominating petition. Tacelosky’s challenge states as to 68

petition signatures the single word “duplicate.” There is no explanation as to what was

duplicated, or where the alleged duplicate could be found. The rules require that a

challenger file a written statement, which “concisely specifies the alleged defect(s) in the

petition.” See, 3 DCMR §1609.2 Tacelosky’s challenge fails to meet the specificity

requirement.

Indeed, in reviewing Tacelosky’s challenge petition, the registrar found that the

single word “duplicate” lacked specificity, in contravention of BOE regulations, and that

there was no practical way to verify the challenge, since what was allegedly duplicated,

or by whom, was not specified.

Accordingly, the registrar denied the challenge as to these 68 signatures, and

informed the parties of the denial at the February 13 prehearing conference. With these

68 signatures, Zukerberg would have over 3,000 signatures and be on the ballot.

After the prehearing conference, and ten days after the challenge period expired,

Tacelosky send via email (but never filed) a document he styled a “report,” in which he

attempted to resuscitate his insufficient and defective challenge.

Tacelosky’s late-filed email is untimely and contrary to the rules. BOE

regulations do not permit any submissions past the ten-day deadline, and the Board lacks

jurisdiction to consider them.

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BOE rules create a single opportunity to file a petition challenge, in person,

within ten days, and do not permit an endless battle of emails and reports, creating a

constantly moving goal line for candidates.

Conclusion

The challenge of Mr. Tacelosky is without merit because (1) BOE has failed to

update its voter rolls as required by law, creating mismatched addresses which do not

really exist, (2) converting “not registered” challenges to “mismatched address” violates

due process, and (3) the Tacelosky challenge lacks specificity and is untimely.

/S/ ___________________________________ Paul H. Zukerberg 1779 Lanier Place, NW Washington, DC 20009 (202) 232- 6400