Nathan

What would happen if the D.C. Council mandated a citywide referendum on re-segregating the schools? Or abolishing the mayor’s office? These hypothetical scenarios seem foolish, but they stood at the heart of a hearing today at the D.C. Board of Elections on the fate of a referendum on D.C. budget autonomy authorized by the D.C. Council late last year.

During a hearing this morning, David Zvenyach, the council’s top lawyer, insisted not only that a proposed budget autonomy referendum is legal, but that even if it weren’t, the elections board would be powerless to stop it. “It is our duty to afford deference and respect the elected officials of the District of Columbia,” he argued, saying it would be “highly unusual” for the elections board to refuse to put the budget referendum before voters on April 23.

But standing in his way was D.C. Attorney General Irv Nathan, who countered that the budget autonomy referendum would violate the Home Rule Charter, and that fact alone should compel the elections board to weigh in against it. “Hypothetically, if the Council’s views were accepted, the Board would have to put on the ballot without any independent legal analysis, Charter amendment legislation passed by the Council no matter how plainly unlawful it was,” said Nathan.

Frustrated by a lack of momentum on gaining additional budget autonomy, a group of advocates settled last year on a new approach: just vote on it. The council unanimously agreed, passing legislation in December ordering the elections board to put the measure on the citywide ballot. But the process, which would require amending the city’s charter to allow the city additional flexibility in spending its own locally raised money, has divided legal experts.

Zvenyach said that amending the charter would be perfectly legal because it wouldn’t change or affect Congress’ right to step in and legislate on behalf of the city, as it always has. “What in this prevents Congress from taking action? Nothing. It’s become increasing obvious that sometimes Congress doesn’t,” he said, citing the various times in recent years—and possibly in the next three months—that the D.C. government has faced a shutdown because congressional leaders couldn’t come to an agreement with President Obama on federal spending.

But for Nathan, who said he supports the broader cause of budget autonomy, trying to amend the charter for the cause would explicitly violate a provision of the charter saying that nothing can be done to change the role that Congress plays in lording over the city. He also worried that a referendum would provoke a congressional backlash, hurting the city’s cause in the long-run.

“To pit it mildly, it is not likely to be pretty,” said Nathan, who served at the House of Representatives’ General Counsel from 2007 to 2011, of the impact of a referendum. “As we have seen all too vividly, Congress is already able and has been willing to intrude on the District’s affairs by enacting social policy that runs contrary to the views of the majority of District citizens regarding such issues as firearms, women’s health, and the District’s ability to protect HIV patients.

Nathan cited comments made by Rep. Darrell Issa (R-Calif.) opposing the referendum. Issa, who now oversees the city’s affairs on the Hill, has pushed his own budget autonomy bill, albeit one that would codify a prohibition on the use of local dollars for abortions.

Nathan’s role in and of itself has been interesting. Even though Mayor Vince Gray opposed the council’s legislation (as did D.C. Del. Eleanor Holmes Norton) on many of the same grounds, he signed off on it late last year. Today Nathan stressed that he was acting in his capacity as an “independent Attorney General,” and that all of the apolitical, non-partisan lawyers he worked with agreed with him that the referendum would violate the city’s charter.

Two of the board’s three members—Stephen Danzansky and Devarieste Curry—seemed inclined to agree with Nathan’s general assessment, somewhat recoiling at Zvenyach’s assertion that they had no authority to refuse to put the referendum to the voters. Board Chairwoman Deborah Nichols, though, leaned towards Zvenyach.

Ultimately, what was at first expected to be a simple hearing to approve language for the referendum has turned into a more weighty question for the board: Is the proposed referendum legal? But beyond that, there’s a more profound question they’ll have to grapple with: Even if it’s not, are they powerless to do anything about it?

Time certainly isn’t on their side: ballots have to be printed in early March, so any board decision will have to come quickly to allow for the possibility of appeals to the courts. Alternatively, the board could punt on the issue altogether, asking instead for a D.C. court to weigh the matter.

While advocates of the idea continue to insist that it’s legal, Nathan said that the only citywide vote that he would sign off on would be a nonbinding referendum on budget autonomy.