It might be a bit early to print the obituary of Ward 5 Councilmember Kenyan McDuffie. But the D.C. Court of Appeals’ latest ruling has Loose Lips working on a draft.
On Thursday, a three-judge panel rejected McDuffie’s attempt to get back on the ballot in the race for attorney general, upending the contest to replace retiring AG Karl Racine and leaving McDuffie without a job in just a few months. The judges ruled that the D.C. Board of Elections made the right call in deciding that McDuffie wasn’t eligible for the AG race because he’s not “actively engaged” as an attorney, as D.C. statute requires.
Rumors swirled about McDuffie’s qualifications for the ballot for months (particularly because of his strong fundraising totals and long history in local politics) but the issue didn’t truly surface until fellow contender Bruce Spiva formally challenged his eligibility about a month ago. That gamble seems to have paid off, leaving Spiva, the Racine-endorsed Brian Schwalb, and Ryan Jones as the remaining contenders in the Democratic primary.
The elections board plans to immediately move ahead with plans to print ballots for the June 21 primary, with a drawing to determine the order of the ballot planned Friday. But McDuffie says he will keep pressing his case, which could upend those plans; he’s asking for a review by the full appeals court. Yet it’s no guarantee that the court will even agree to this “en banc” review, let alone find in his favor after a unanimous decision against him.
“While we respect the three-judge panel, we respectfully disagree with its conclusion, which we believe — along with many legal scholars and legislative authorities— is contrary to the language, legislative history and intent of the statute,” McDuffie’s campaign wrote in a statement. “The court’s decision deprives District of Columbia residents the opportunity to elect the leaders of their choice.”
In the ruling, the judges generally agreed with Spiva’s argument that McDuffie doesn’t meet the criteria to serve as AG just because he is both a lawyer and works for the D.C. government. They honed in on the phrase in the D.C. code requiring candidates to be “actively engaged” as an attorney, dismissing McDuffie’s arguments that he’s using his law degree in his duties as a councilmember. The judges also wrote that they were “unpersuaded” by a brief from eight current and former councilmembers who were in the office when the independent attorney general position was created supporting McDuffie’s argument.
“Allowing an individual to serve as attorney general simply because they are an attorney and work in a nonlawyer capacity for the District, as a school nurse or IT expert, for instance, hardly seems to serve the aims of adding an experiential requirement to the minimum qualifications for the office,” they wrote.
McDuffe’s absence should create a wide-open race, considering that none of the remaining candidates have the outgoing councilmember’s deep roots in local politics. Schwalb, however, would seem to be the biggest beneficiary of the court’s ruling, considering that public financing has helped him approach McDuffie’s hefty fundraising numbers in recent weeks, not to mention Racine’s backing.
Spiva, however, has responded by pouring some of his own money into the race to stay competitive, helping him become the first D.C. candidate to hit the airwaves. Jones, a solo practitioner, hasn’t shown much fundraising prowess so a two-way race between the pair of Big Law veterans looks most likely: Spiva formerly managed Perkins Coie’s D.C. office, while Schwalb does the same for Venable.
“Today’s ruling from the Court of Appeals makes it clear and final: Councilmember McDuffie is a dedicated public servant but he does not meet the reasonable, minimum qualifications that were set out by the Council and District voters to ensure the D.C. attorney general is experienced enough to use the law to fight for the people of DC,” Spiva wrote in a statement. “The people of D.C. deserve an attorney general who is ready to deliver results for them on day one.”
So what’s next for McDuffie? There’s been some talk of the Council passing an emergency bill to change the law and get McDuffie on the ballot among his supporters, but so far, no lawmakers have come out in favor of the change (and that move would create big headaches for the city’s election officials).
McDuffie could always try running as an independent in another Council race (perhaps against the winner of the primary for his old Ward 5 seat or even take on At-Large Councilmember Elissa Silverman for a citywide post). Plus, there are two more at-large seats on the ballot in 2024 if he wants to be patient.
But McDuffie gave up what seemed like an easy re-election in Ward 5 to mount his AG bid. Maybe the Council life doesn’t suit him anymore after a decade drawing a government salary.
He has a law degree, after all. Perhaps after hearing so many people deride him for not being a “practicing attorney,” he’ll go give that a shot instead.
This story has been updated.