U.S. District Court Judge Emmet Sullivan has denied the request of a Washington rabbi seeking to have an upcoming local election rescheduled because it conflicts with a Jewish holiday.
In a ruling late this afternoon, Sullivan said that because the city was offering several alternative absentee voting options, the rabbi’s claims did not meet the standard for the “extraordinary” measure of an emergency injunction.
Rabbi Shmuel Herzfeld, the rabbi of an Orthodox synagogue in northwest Washington, had sued the District of Columbia Board of Elections and Ethics over a special election scheduled for 7 a.m. to 8 p.m. on April 26, also the eighth and final day of Passover. On the first, second, seventh and eighth days of Passover, observant Jews are prohibited from signing their name or completing an electronic circuit, in effect precluding them from casting a ballot.
The rabbi had claimed that the city’s failure to act on the conflict was a constitutional violation, because officials were “imposing a burden on observant Jewish voters that is not imposed on any other voters.” Herzfeld had asked the judge to either reschedule the election or extend voting hours until 10 p.m., since Passover ends on April 26 at 8:40 p.m. The city had argued that the alternative options for voting were more than sufficient, and also that its hands were tied in scheduling by election statutes.
In denying the rabbi’s request for an emergency order (PDF), Sullivan did not dismiss Herzfeld’s case against the city, adding that the rabbi could still pursue his original claims (PDF) that his First and Fifth Amendment rights had been violated in how the election was handled.
The judge also expressed disappointment that election officials had failed to ask the court for an order to fix the conflict as soon as they were aware of it in late March; under D.C. law, only a court order can alter voting hours in these special elections.
“This court would have happily granted such an order,” he said.
Herzfeld, who could not immediately be reached for comment after today’s hearing, is the rabbi of Ohev Shalom – The National Synagogue, an Orthodox synagogue located in the Shepherd Park neighborhood of northwest Washington. Lead plaintiff’s counsel Steven Lieberman of Washington’s Rothwell, Figg, Ernst & Manbech said that while he was unhappy with the ruling, he thought that the judge had given the city guidance in how they should proceed in the future.
Lieberman said he will discuss the possibility of an appeal with Herzfeld. Altering the suit to move forward as a class action is also an option, he said.
Rudolph McGann Jr., an attorney for the board of elections, had argued in court that the question of whether the election should have been scheduled on April 26 was moot, because the city is bound by its own laws to schedule a special election on the first Tuesday 114 days after a vacancy is announced. The statute in question for special elections doesn’t offer any exceptions for the board to reschedule, McGann said.
A copy of the board's memorandum in opposition to the rabbi's request can be found here (PDF).
McGann told Sullivan that even if the statutory deadline meant that the election would have to be held on Christmas Day, there would be nothing the board could do to change the date. Herzfeld and his attorneys expressed doubts about that.
Thomas Koger of the city attorney general’s office, arguing on behalf of the city, focused on the fact that the city was offering several alternative voting options. The question, he said, was not whether the rabbi and those similarly situated could vote on the one day in question, but whether their right to vote was being denied entirely.
The city had also claimed that the cost of extending voting hours on April 26 would cost upwards of $100,000 and pose significant logistical hurdles.
This morning, the city filed an affidavit (PDF) with the court from Rabbi Barry Freundel, the rabbi at Kesher Israel, also an Orthodox synagogue in northwest Washington. Freundel had stated that, like Herzfeld, he won’t be able to vote on April 26, but believes that the city “has made a fair and reasonable accommodation for me and my similarly situated congregants.”
Rokey Suleman II, executive director of the city’s board of elections, speaking after the hearing, said Sullivan’s order was neither “a win or a loss.” He noted that the board had agreed to open the polls for several hours on April 24, in an attempt to further expand voting options for Herzfeld and similar situated residents.
Early absentee voting began Monday in the special election to fill an at-large city council seat and two school board positions.
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