During a 2008 political campaign, Jack Evans, the incumbent
councilmember for D.C.'s Ward 2, placed a full page advertisement featuring a
photograph of him with D.C. Metropolitan Police Chief Cathy Lanier. The
photograph was taken in the councilmember's office. Section 1-1106.51 (a) of the
District of Columbia campaign finance laws prohibits the use of District
government resources for campaign-related activities. Certain voters living in
Ward 2, led by David Mallof contended that Mr. Evans' use of his office and the
Police Chief violated the law, and they filed a complaint with the Office of
Campaign Finance (OCF). OCF performed an investigation and determined that Mr.
Evans did not violate the campaign finance law. The voters sought review of the
decision from the D.C. Board of Elections and Ethics.
The Board of Elections determined that a review of the
OCF decision was not warranted on the basis that the Petitioners lacked
standing to obtain Board review. The Board stated that based on their status
as voters, these individuals were not adversely affected or aggrieved by the
Board's decision. In other words, these voters had suffered no
injury-in-fact, and therefore had no basis for obtaining review of the
underlying decision. The voters appealed to the Court of Appeals.
The Court first affirmed the Board of Elections
decision to use the injury in fact test to determine standing. The voters
contended that since they were seeking Board review of an OCF decision, as
opposed to Judicial review of an agency decision, the injury in fact
standard was inappropriate. The Court responded: "We must defer to the
Board's interpretation of the regulation it has promulgated unless its
interpretation is plainly wrong or inconsistent with the governing statute."
Mallof v. D.C. Board of Elections, at *14.
The Court then went on to consider the substantive
issue. That is, whether the D.C. voters in Ward 2 had standing to seek Board
review of an OCF decision with which they disagreed. The Court cited Supreme
Court precedent for the constitutional minimum requirements for standing:
"The plaintiff must have suffered an ‘injury in fact' – an invasion
of a legally protected interest which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural or hypothetical." Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
Under this standard, the Court reviewed the voters two
separate basis for contending they had standing: (1) that the decision
diminished their ability to have an outcome on the election, and (2) that
OCF's decision would set a precedent allowing future candidates to violate
the law. The Court noted that this was a case of first impression in D.C.,
and while an opposing candidate may have standing to seek Board of Election
review, individual voters do not.
The Court cited numerous Federal Appellate cases that
voters do not have standing to challenge campaign finance laws. In Gottlieb
v. Fed. Election Comm'n, 330 U.S. App. D.C. 104, 143 F.3d 618 (1998),
President Clinton's campaign was targeted in a complaint to the Federal
Election Commission based upon alleged campaign finance law violations. The
Appellate Court stated that the argument--that any violation injured the
voters' rights to influence the political process--"rest[ed] on gross
speculation" and was "far too fanciful to merit treatment as an injury in
fact." Id. at 107.
The Court noted that while no two cases are the same,
the Federal Court precedent supported the finding that individual voters do
not possess standing in situations such as this.
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