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After a series of missteps in the 2020 primaries and a leadership shakeup, you’d think the D.C. Board of Elections would have learned its lesson. The growing mess enveloping Initiative 82 suggests that not much has changed in the past two years.
The board’s decision Wednesday to allow the measure to appear on the ballot might seem, at first blush, like a win for organizers hoping to end D.C.’s tipped minimum wage system. But the move to postpone a vote from the June primary to the November general election is not insignificant—and it appears to be a delay entirely of the BOE’s own making.
The organizers behind I82, a close cousin to the hotly debated (and eventually repealed) Initiative 77, seem to have done everything right. They submitted petition signatures for the board’s review ahead of the Feb. 22 deadline and, though it took a while, officials determined they collected more than enough signatures to qualify for the ballot. Had the board made that determination within the 30-day window required by law for a certification, I82 would appear on voters’ June ballot.
Instead, the board took an extra 13 days to sort through these issues and forced the five-month delay, since D.C. law stipulates that any initiative certified for the ballot has to wait at least 90 days before receiving a vote.
That has I82 backers, many of whom have been fighting the tipped wage wars for the last five years or so, fuming. They believe the delay will confuse the voters they’ve spent months telling to expect a tipped minimum wage vote in the primary, and cause major logistical challenges. The initiative calls for wages to start increasing on Jan. 1, 2023; if the measure passes in November, there’s no way it would go through D.C.’s cumbersome congressional review process in time to meet that deadline.
“We hustled to make this deadline because we always intended for it to be on the primary ballot,” says Adam Eidinger, head of the Initiative 82-backing D.C. Committee to Build a Better Restaurant Industry. “It was [the board’s] mistakes that led to these delays, but it’s workers and voters that will pay the price for it.”
Worse yet, Eidinger suspects the board’s delay amounts to “handing our enemies a pathway to challenge” I82 in court. The top lawyer for the Restaurant Association of Metropolitan Washington, a staunch defender of the tipped wage, has already signaled that he could appeal the board’s ruling. (A separate challenge to I82’s petition signatures from Valerie Graham, a RAMW ally, remains pending.) The restaurant industry could argue that BOE didn’t meet its 30-day deadline for deciding on I82’s certification, so it should be thrown off the ballot.
“The BOE should be going to court and defending I82 if that happens,” says John Capozzi, a veteran Democratic activist and I82 supporter. “It was their screw-up. It’s only fair.”
BOE spokesman Nick Jacobs declined to speculate on what might happen if this all heads to court (and based on the tumultuous history of the tipped wage fight, it surely will at some point). But he emphasized the board was doing its best in an “unprecedented situation,” noting that the arrival of new ward lines in the midst of the signature-gathering process due to redistricting added a huge amount of complexity to the process.
I82’s supporters had to not only collect a set number of signatures, but also ensure that those signatures represented 5 percent of registered voters in five of the city’s eight wards—when redistricting took effect on Jan. 1, the number of voters in each ward changed, as did the wards of some people who already signed I82 petitions. In particular, Jacobs says that led to uncertainty about signatures in wards 2 and 6, forcing the board to conduct a much more thorough review of the petitions instead of just examining random samples.
“With those wards being up in the air, we wanted to be sure that we were evaluating everything as we should, with a full amount of information,” Jacobs says. “It’s never gone down to a situation like this … and ultimately, we got it right.”
Eidinger concedes that it is an unusual occurrence, but far from an unpredictable one. He says organizers noticed quickly that the BOE was using the new Ward 6 boundaries when evaluating where each signer actually lived, even though many of those signatures were collected well before redistricting took effect, and alerted the board. Even still, it took the BOE several days to adjust, making it clear that the organizers easily cleared the Ward 6 threshold.
“If that had been noticed earlier, the extensive checking process would not have been necessary,” longtime activist Keith Ivey noted on Twitter.
The D.C. Council could provide a workaround here, if it wants to get involved. Lawmakers could simply pass a bill putting I82 on the June ballot, and Eidinger says he’s already begun lobbying councilmembers to do so. Considering that a majority of lawmakers either support the ballot measure outright or have said they wouldn’t vote to overturn a second referendum, it’s not an unthinkable outcome.
Eidinger also notes that the Council could preempt this whole convoluted dispute by passing its own legislation phasing out the tipped minimum wage. The restaurant association and I82 organizers held a series of talks about such a solution last year, and Eidinger says he even thought they were on the cusp of a deal before those negotiations fell apart.
But consider this: Simply letting I82 become law after a citywide vote is much less politically risky for lawmakers than proactively passing a tipped wage bill. Loose Lips wouldn’t bet on a legislative solution here, unless, of course, I82 passes and the Council rushes to pass its own bill making some adjustments to it.
So that brings everything back to the question of ballot access, which likely won’t be resolved for weeks. The BOE undoubtedly has a tough job here, but it seems clear the board didn’t make things any simpler for anyone involved. There are already rumblings that there could be yet more issues sending out mail-in ballots, too, leading to a very simple question.
“What on Earth is going on over there?” Capozzi asks.