Darrow Montgomery/file
Darrow Montgomery/file

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Restaurant Opportunities Center United (ROC), together with community activists, spent the past week collecting signatures to put a referendum on a future ballot that would revive Initiative 77—the ballot measure that sought to eliminate the tipped minimum wage in D.C. ROC funneled $200,000 into the effort, paying “Save Our Vote” campaign petitioners $3.75 per signature. They needed at least 25,000 signatures, representing five percent of registered D.C. voters, to get the referendum on the ballot.

They got them. But it probably doesn’t matter.

After a two-hour hearing yesterday, a D.C. Superior Court judge ruled this afternoon that the Board of Elections failed to follow proper notice procedures, rendering the signatures moot at nearly the exact moment that they were being submitted to BOE for tallying and validation.

At the end of November, bartender Valerie Graham sued the Board of Elections. The compliant, filed by attorney Andrew Kline, argued the language on the petition was misleading and the Board of Elections didn’t provide ample time for public comment on the proposed referendum before it was certified. Another restaurant worker, Andrew Shapiro, joined Graham’s suit. Kline is also the attorney for the Restaurant Association of Metropolitan Washington, which has vehemently fought against Initiative 77.

An emergency hearing was held last week, where both parties came to an agreement on the language, giving the Save Our Vote campaign the green light to start collecting signatures. Yesterday’s hearing was about the other counts, including the one about proper notice. If the D.C. Register published more frequently or if there was another notice procedure in place, this could have gone much differently. 

As it stands, Judge Neal E. Kravitz‘s decision effectively sinks the referendum. While BOE can hold onto the signatures, they cannot proceed with any action. With the law repealing Initiative 77 taking effect at midnight, there’s confusion over whether an appeal would make a difference.

Shapiro, one of the plaintiffs, was surprised by the decision and hopes it can “become a win for everyone” if it leads to reforming the referendum process in D.C. He says he’s grateful that the repeal of Initiative 77 will remain intact. “We appreciate everyone considering and listening to our voices and why we felt like this would be bad for the city as a whole,” he says. “Fundamentally making it impossible for owners to stay in business is not the answer. They’ll close or cut jobs … I think that it weighs heavily in our feelings that this industry does a lot for this city and this is a unique moment and we got a victory. We do have things we need to work on, but we want to be the ones generating that change.” 

Initiative 77, which New York-based ROC successfully got onto the ballot in June, would have increased the tipped minimum wage in eight increments until it reached $15 in 2025. Currently restaurant owners can use what’s known as a tip credit to pay tipped workers a lower minimum wage ($3.89). If tips fail to carry a tipped worker over the standard minimum wage ($13.25), the employer is on the hook for the rest. 

Supporters of 77 argued that if workers were to receive the full minimum wage directly from their employers, the measure would reduce wage theft and decrease sexual harassment and racial inequality in the workplace. Opponents responded that such a measure would force some establishments to close or cut jobs and would ultimately reduce take-home pay for tipped workers. Voters passed the ballot measure 55 percent to 45 percent on June 19. After holding a 16-hour hearing in October, the D.C. Council repealed Initiative 77 by a vote of 8-5. 

The head of ROC’s D.C.’s office isn’t giving up. 

“It wasn’t over before and it’s not over now,” Diana Ramirez says. “We’re huddling with our attorneys to see what legal avenues we have in our power.” She says her camp plans to appeal, but admits it might be too late. “It’s disappointing and frustrating that again, people’s voices and people’s signatures, the will of the people, is being drowned out by money, power, and influence of the restaurant association. What’s even more unfortunate is count one of the association’s challenge was something the judge upheld and it was completely out of our control.” 

Ramirez notes that she’s had a difference of opinion with the restaurant owners and tipped workers who oppose Initiative 77, but believes everyone should be on the same side when it comes to upholding June’s election result. “For the purposes of keeping democracy intact, you have to be on our side on this. It’s not about Initiative 77 more. This is about respecting the will of the voters.”

In court yesterday, Kravitz first questioned the failure to give proper notice was “harmless,” asking if it’s worth “completely shutting this down” over a technicality. “Does it warrant that remedy?” But ultimately he determined that there’s no way to know who would have come forward and challenged the referendum should the public have been made more aware.