Update: The D.C. Court of Appeals on Saturday declined a request for a full rehearing of a three-judge panel’s decision that knocked Kenyan McDuffie off the ballot for attorney general, ending his legal battle to take part in the June 21 primary.
McDuffie made the request for a hearing in front of the full court after Thursday’s ruling, arguing that the three-judge panel had erred in its decision and that the issue was of enough importance to merit further consideration. But the court turned down his request on a 4-4 vote. A majority vote is needed to grant a rehearing in front of the full court.
In a statement, McDuffie’s campaign said it was “disappointed” with the court’s decision, but added that “the fight is not over.”
“Our campaign is discussing what the most recent decision means for Kenyan’s candidacy and the best path forward for the residents of our city, scores of whom have expressed outrage over the Board of Elections’s decision to disregard the Council’s clear legislative intent and to improperly construe the minimum qualifications to run for Attorney General,” McDuffie’s campaign said. “By disregarding the Council, the Board has effectively prevented voters from exercising their right to review and assess the qualifications of each candidate and to determine who is best qualified to be Attorney General.”
McDuffie’s best available option would be for the D.C. Council to pass legislation clarifying the requirements for attorney general, though it is virtually impossible for that to happen for the Democratic primary because ballots are being finalized and sent to some voters starting later this week. He could still attempt to run for attorney general as an independent.
Original story: The D.C. Court of Appeals on Thursday dealt a likely fatal blow to Kenyan McDuffie’s hopes of becoming D.C. attorney general, upholding a ruling from the D.C. Board of Elections that knocked the Ward 5 councilmember off the ballot because he doesn’t have enough legal experience for the office.
In the unanimous ruling, the three-judge panel said it was unconvinced by McDuffie’s argument that his decade on the D.C. Council counted towards the requirement that all candidates have been “actively engaged… for at least 5 of the 10 years” as an attorney.
“Allowing an individual to serve as Attorney General simply because they are an attorney and work in a non-lawyer capacity for the District, as a school nurse or IT expert, for instance, hardly seems to serve the aims of adding an experiential requirement to the minimum qualifications for the office,” said the ruling. “Likewise, allowing an individual to serve as Attorney General if they can show that they do functionally equivalent work to that of an attorney only leads to difficult questions of how such work could objectively be measured and what the quantum of sufficient work would be.”
The judges also dismissed a brief submitted by eight current and former councilmembers who said they always intended to allow lawmakers to run for D.C. attorney general when the office was made an elected position in 2014. “We are unpersuaded [by] the twelve-years-after-the-fact views,” they said.
The fight, though, may not be over. In a statement, McDuffie’s campaign said it would be filing for an emergency stay and a hearing before the full Court of Appeals.
“While we respect the three-judge panel, we respectfully disagree with its conclusion, which we believe — along with many legal scholars and legislative authorities — is contrary to the language, legislative history and intent of the statute. It is also at odds with the position of the majority of the Councilmembers who authored and voted in support of the qualifications language. Furthermore, the court’s decision deprives District of Columbia residents the opportunity to elect the leaders of their choice,” said the campaign.
The court’s ruling seemingly marks an inglorious end to McDuffie’s bid to succeed D.C. Attorney General Karl Racine, one he launched in front of his family home on North Capitol Street last October. It may also represent the end — for now — of his political career, as he opted not to run for another term representing Ward 5 on the council in order to run for attorney general.
With McDuffie potentially off the ballot, the race for attorney general is suddenly wide open. Gone is a contender with citywide name recognition and a record of legislative achievements from his decade on the council who touted himself as the “people’s lawyer.” McDuffie had been leading the field in fundraising and had drawn endorsements from a variety of unions.
The remaining candidates include Bruce Spiva, who filed the initial challenge against McDuffie; Brian Schwalb, who has been endorsed by Racine; and Ryan Jones. (Like McDuffie, both Jones and Schwalb are receiving public financing for their campaigns.)
“Today’s ruling from the Court of Appeals makes it clear and final: Councilmember McDuffie is a dedicated public servant but he does not meet the reasonable, minimum qualifications that were set out by the Council and District voters to ensure the D.C. Attorney General is experienced enough to use the law to fight for the people of D.C.,” said Spiva in a statement. “The people of D.C. deserve an Attorney General who is ready to deliver results for them on day one.”
Spiva, who is self-funding his campaign, has already started running campaign ads on local TV. But it remains to be seen whether he will face any backlash from McDuffie supporters for his role in knocking him off the ballot. Over the last two days Ron Moten, a well-known D.C. activist, has organized a number of protests of the election board’s ruling, indicating that there could be some residual anger directed at Spiva at the ballot box.
Moten also raised another possibility: pushing the council to pass emergency legislation to clarify that lawmakers who are attorneys can run for attorney general.
Still, that strategy faces an uphill battle. The elections board is expected to hold a lottery for ballot position tomorrow, and start producing ballots for military and overseas voters by early next week. The council has a legislative session on Tuesday, but as of noon on Thursday — a traditional deadline for emergency measures — no emergency legislation pertaining to the attorney general’s qualifications had been filed. Some lawmakers have also quietly expressed concerns over the optics of voting on a last-minute bill that would benefit an existing colleague.
Any rehearing before the Court of Appeals will have to proceed quickly, or at least give McDuffie a stay of the current ruling so he can continue his campaign. But any such stay could also delay the June 21 primary, which the elections board was pushing to avoid.
This post was updated with a statement from McDuffie’s campaign.
Martin Austermuhle