The D.C. Court of Appeals late last month denied a write-in candidate’s petition to secure a seat on a local governing body, officially rendering it unable to conduct official business due to its number of vacancies.
A week after the D.C. Board of Elections announced in early December that two Foggy Bottom and West End Advisory Neighborhood Commission write-in candidates did not earn seats in their uncontested elections because other unregistered write-in nominees received more votes, single-member district 2A09 candidate Dennis Sobin filed a petition to reverse the decision, according to D.C. Court of Appeals records. The judge’s Dec. 26 ruling blocking the petition will leave the 2A09 seat vacant along with four additional seats, preventing the body from operating in an official capacity.
The D.C. Board of Elections declined to comment on the D.C. Court of Appeals’ decision to dismiss the case. The District’s court documents in the case are not available to view on the appellate e-filing system.
The D.C. Code states that an ANC may declare quorum and take “official action” if the majority of its members are present. ANC 2A Chair Trupti Patel said in December that the ANC will hold monthly meetings to hear presentations and community concerns, but the body will be unable to provide advice carrying the “great weight” authority allowed by the ANC Act of 1975 due to its vacancies.
Write-in candidates must complete a form declaring they will accept the position if elected and file the document with the D.C. Board of Elections at least seven days after the election. Sobin completed the form on Nov. 12, seven days after the election, which he argues in the filing makes him the only “legitimate” candidate eligible to win the seat, as the unregistered nominees who secured more votes did not submit the form.
Former ANC commissioners Yannik Omictin, Joel Causey and Evelyn Hudson — none of whom ran for re-election — all received more write-in votes than Sobin with two, four and three votes, respectively, according to court documents obtained by 2A08 Commissioner Jim Malec through the Freedom of Information Act.
“He received two votes, and since no other candidate received more — despite the possibility that more than two voters wrote in the name of non-candidates such as Julius Caesar, John Smith, Donald Duck or anyone else — he should be certified the winner,” Sobin wrote in his petition, which was obtained by The Hatchet.
Sobin launched a write-in bid for single-member district 2A09 in the November election and received backlash from commissioner-elects on the body after his presumed win because of his status as a sex offender. A Florida jury in 2005 convicted Sobin on seven felony counts involving child pornography and racketeering after he faced arrest in February 1991 for taking nude video footage of two children at a nudist campground.
DCBOE regulations require that if a write-in candidate who won the election is declared ineligible after Election Day, no winner is declared. In this case, Omictin, Causey and Hudson numerically received the most votes to be the frontrunners in the election, but they did not file the paperwork to become official candidates, rendering their election void.
DCBOE said in an email to Sobin on Dec. 6 that the election represents the will of the people, and since Sobin did not receive the most votes, he cannot be declared the winner, despite being the only candidate to file the appropriate paperwork, according to an email attached to Sobin’s petition that was obtained by The Hatchet.
DCBOE, represented by attorneys Terri D. Stroud and Christine Pembroke, filed a motion on Dec. 12 to affirm the board’s initial determination that Sobin would not assume seat 2A09, meaning they believed the appeal raised no substantial legal questions. The DCBOE also filed a motion to strike on Dec. 12, and Sobin replied with a filed opposition to the motion and summary affirmation on Dec. 16.
Sobin argues in the filing that just because voters write in peoples’ names more times does not mean they are “eligible” candidates.
On Dec. 26, the D.C. Court of Appeals granted the DCBOE’s motion to strike, upholding the board’s decision to not certify Sobin as the winner of single-member district 2A09. Sobin then filed a petition on Dec. 27 for rehearing en banc, which is a rare procedure that allows the full court or en banc panel to reconsider a case due to failing to follow prior precedent, according to the U.S. Court of Appeals for the Federal Circuit.
Sobin cited a Maryland law that requires candidates to file with the State Board of Elections in order for officials to keep record of who voted for them. The state does not count every person who received votes in the election but instead only counts votes for declared candidates who are seeking office, according to Sobin’s petition for rehearing en banc.
The DCBOE a week later requested permission to respond to Sobin’s petition past the deadline. The appellate e-filing system updated the cases’ status to “dismissed” and was affirmed by judgment on Dec. 26, according to the site.
Sobin said last month that he does not plan to run for election should there be re-election in January, and he instead plans to appeal to higher courts until he gains the 2A09 seat. After the D.C. Court of Appeals makes its decision, the parties involved have 90 days to appeal to the Supreme Court.
“I can’t see if I lose it how it’ll be over like that, because there’s a higher court to appeal to: the U.S. Supreme Court,” Sobin said in a December interview with The Hatchet. “So either I’ll be certified the winner by January, next month. And if I won’t be, I’m not going to play their game by running again. I’m just going to take the court decision to a higher court if that happens.”
Sobin did not return a request for comment on his plans with the local body following the case’s dismissal.