The D.C. Democrats might have jumped the gun in seeking to challenge Initiative 83 in court. A series of filing missteps has potentially doomed their efforts to block the ballot initiative. 

The District’s Democratic Party has been working to kill I83, which would let voters decide whether to institute ranked choice voting and open primaries in local elections. The party has claimed since August that the initiative would violate D.C. law and harm the ability of members to effectively pick nominees. But the case could soon get tossed out of court regardless of the merits of those arguments, after the Dems’ attorney appears to have filed legal challenges too early on two separate occasions.

The Dems filed their first lawsuit on Aug. 1, just a few weeks after the city’s Board of Elections ruled that the initiative met certain legal standards to appear on the November 2024 ballot (organizers still must secure enough signatures to get it on the ballot, of course). The problem is that the party, represented by longtime D.C. attorney Johnny Barnes, needed to wait until the elections board cast another vote finalizing the language of the would-be ballot initiative before it had standing to file a legal challenge. The board’s rules stipulate that opponents of the initiative have 10 days after that language gets publicly circulated to go to court. The clock didn’t start ticking until Sept. 1.

Perhaps recognizing that error, Barnes filed another, virtually identical case on Aug. 31. (The main change is that the suit also named a former candidate for an at-large Council seat, Keith Silver, alongside the party and chair Charles Wilson as plaintiffs.) Barnes then withdrew the first case on Nov. 4, just two days before a D.C. Superior Court judge was set to scrutinize it for the first time in a hearing.

The problem, according to attorneys for the elections board and the rest of the D.C. government, is that Barnes’ second case was also filed too early. They argue that he still managed to submit it outside of the 10-day window, which would bar the court from considering it. 

The party has plenty of other avenues to try and block the ballot initiative over the next year—just ask the backers of initiatives 77 and 82—but this could end the Dems’ preliminary legal challenge before it really gets going. The government’s lawyers asked a judge to dismiss the case outright in an Oct. 23 motion.

Barnes argues in a Nov. 3 motion of his own that the city is mistaken. He claims that the elections board should’ve published its decision (and started the clock for legal challenges) earlier than it did “in what seems obvious to the undersigned counsel an attempt to avoid the mandates of law and frustrate the public.” 

But, even with that caveat, Barnes notes that the court technically didn’t accept his lawsuit until Sept. 1. Even if he was truly a day early, Barnes also argues that “early filings are not regarded as untimely” because “the statute is designed to assure expedited consideration of any protest, and an early filing facilitates that goal.”

“A broad reading of statutes and court rules, at all levels, and in all jurisdictions reveals that ‘untimely’ means late, not early,” Barnes writes.

The D.C. government’s lawyers made other arguments against Barnes’ lawsuit, too, should the court agree with him on that point. Chiefly, they claim that Barnes’ legal arguments focus too much on “the possible effects of [I83] if it were to become law,” even though it is “not currently and may never be the law of the District.” 

Barnes’ suit makes all kinds of predictions about the dire effects of ranked choice voting and open primaries, echoing the party’s longstanding claims that these measures will confuse and disenfranchise older voters of color and dilute the party’s ability to pick its nominees. Ranked choice voting allows voters to rank their top candidates, rather than selecting just one; votes are counted (and potentially recounted using the rankings) until a candidate secures a majority of the vote. The initiative would also allow voters registered as independents to vote in primaries; currently, only people registered with a political party can vote in its primary elections.

But the District’s attorneys argue that the court should only concern itself with whether the elections board did its job of determining the initiative’s legal sufficiency. 

“These claims are entirely predicated on [I83] being placed on the ballot, receiving the necessary votes to pass, clearing congressional review, being funded in a budget by the Council, and ultimately becoming effective law in the District,” the District’s attorneys write. “[These] all depend on multiple future events that may not occur.”

This inspired some truly impressive rhetorical flourishes on Barnes’ part, befitting his reputation as one of the more colorful characters in D.C. politics. 

“Defendants would have this Honorable Court remove its Sacred Black Robe and step into the wild world of imprecise, political legislators,” Barnes writes in response, accusing the District’s lawyers of a “fancy dance” designed to obscure how the initiative would violate the law even if it makes it onto the ballot. 

He particularly honed in on the fact that the initiative would cost money to implement, typically a no-no for ballot measures like this one. The I83 organizers had to get creative to get the measure on the ballot and stipulate that it would only take effect if the Council chooses to fund its provisions; Attorney General Brian Schwalb ultimately affirmed the legality of this approach, but it so irked Council Chair Phil Mendelson that he drafted legislation aimed at preventing any future initiative proposers from doing the same. 

It may not matter to the court one way or the other, if the District’s lawyers get their way. A judge is set to decide these questions in a Dec. 1 hearing, which Schwalb requested move on an expedited basis so the city knows what to plan for in its elections as early as possible. (I83’s backers are certainly hoping for a resolution as quickly as possible, too, since they can’t start collecting signatures until the challenge is resolved; they wrote in a recent social media post that they’re “confident” it will be dismissed next month.)

Considering the intense opposition to the lawsuit within the party, prompting some party leaders to question Wilson’s management style, Loose Lips suspects that many D.C. Democrats won’t be too offended if it fails.

This story has been updated.