Photo of Valerie Graham (left) and other tipped workers by Darrow Montgomery

The Initiative 77 chess match continues. 

This morning the D.C. Board of Elections (BOE) was expected to adopt a petition that would be used to collect signatures to start the process of repealing the repeal of Initiative 77. ROC United’s board member Woong Chang and Rev. Graylan Hagler and his “Save Our Vote” campaign, are heading up the movement to cancel the D.C. Council’s repeal of the tip-credit eliminating measure that voters passed back in June. 

(Got that? If not, here is a summary of events: Last June, a national group called Restaurant Opportunities Center United put a question on the primary election ballot—Initiative 77—asking voters to eliminate the tipped minimum wage. Supporters argued that the measure would reduce wage theft and decrease sexual harassment and racial disparities in the workplace. Opponents responded that such a measure would force some establishments to close because of increased labor costs and would ultimately reduce take-home pay for tipped workers. Voters passed the measure. But then the D.C. Council overturned the vote.)

But this morning didn’t proceed as planned. The petition was not adopted because a bartender filed a lawsuit on Monday challenging the language on the petition that Chang penned, as well as some procedural elements. “The Board was only served with this filing minutes before the meeting,” says BOE spokesperson Rachel Coll. “The Board is of the opinion that petitions cannot be issued if the language of the formulated petition has been challenged in court.”

Attorney Andrew Kline, who represents plaintiff Valerie Graham, filed the lawsuit in D.C. Superior Court. “There’s a statute that says that if a qualified elector objects within ten days by filing a lawsuit in Superior Court, the process is interrupted until the lawsuit is resolved,” he explains. “So we filed yesterday afternoon a six-count lawsuit alleging issues with the language of the referendum and certain defects in the process.” Kline is also the attorney for the Restaurant Association of Metropolitan Washington, which donated to several campaigns that fought against Initiative 77. 

The lawsuit centers around what Kline calls “inherently misleading” language. “Our reading of it is that it still tends to lead people to believe that tipped workers by law are not guaranteed the full minimum wage, which has been a story that Restaurant Opportunities Center United and other proponents [of Initiative 77] have pushed, which is not true and it’s disturbing. I don’t think the language approved of board of elections should be slanted that way.”

Initiative 77 sought to eliminate the tip credit, which allows employers to pay tipped workers $3.89 per hour instead of the standard minimum wage of $13.25 per hour. If tips do not carry a tipped worker over the standard minimum wage, employers are required by law to make up the difference.

The “Referendum on Law Repealing Initiative 77” states: “The majority of District of Columbia voters approved Initiative 77 on June 19, 2018. Initiative 77 gradually increase the minimum wage for tipped employees from the current rate ($3.89) to the same minimum wage as non-tipped employees by 2026.” 

Kline and his client take issue with the language because it doesn’t explain that employers are already on the hook for the full minimum wage should tips not bring a worker up to the standard minimum wage. 

The lawsuit also alleges that there were significant procedural errors. It says that no notice of the public hearing appeared in the D.C. Register until Nov. 9, yet the deadline for comments to be submitted from the public was Nov. 7, making it impossible for the public to chime in.

Graham has been bartending in D.C. for twenty years and says she feels compelled to keep fighting an initiative she feels would hurt the local restaurant industry. “A lot of people who work in this industry and who are very vocal in this industry in the fight against 77 are not D.C. voters,” she explains. “People are affected by this who aren’t able to even vote on an initiative that affects their lives. The plaintiff has to be a registered D.C. voter. I was happy to get involved with the workers and the operators who are still fighting against this assault on our industry.”

Initiative 77 supporters were disappointed this morning. “The restaurant industry filed a petition challenge at the eleventh hour,” Hagler says. He’s the senior pastor of the Plymouth United Church of Christ and has vehemently opposed the repeal of 77 on the principle that voter’s rights should be respected. “It’s their latest effort to thwart the democratic process.”

Moving forward, Graham isn’t sure what to expect. “The issues that were raised in the complaint are serious issues and I’m surprised with these issues on the table that the Board of Elections was willing to move forward with this referendum just the same way I was surprised they were willing to put 77 on the ballot the way it was written,” she says. “I’m honored to be a part of it and I’m willing to continue fighting on behalf of my industry.”

The original Initiative 77 ballot language included a bullet point about raising the minimum wage to $15 per hour in 2020, despite the fact that this was already signed into law in 2016.

Catch up on some of City Paper’s Initiative 77 coverage:

Could Tuesday’s Election Have a Fresh Batch of Voters Thanks to Initiative 77?

Live Blog: Hearing on the Bill Repealing Initiative 77

D.C. Council Majority Proposes Full Repeal of Initiative 77

Battle Escalates Within D.C. Restaurant Industry Over Tipped Minimum Wage Vote

The Leftovers, Part One: We Address Your Unanswered Questions about Initiative 77

The Leftovers, Part Two: We Address Your Unanswered Questions About Initiative 77