Updated at 2:02 p.m.
Washington's April 26 special election is long over, but a local rabbi is continuing his legal action against the city for failing to remedy the election date's conflict with a Jewish holiday.
Rabbi Shmuel Herzfeld, who leads Ohev Shalom - The National Synagogue, had originally sued the city before the election, pointing out that April 26 is one of several days when observant Jews are barred from signing their name or completing an electronic circuit, in effect precluding them from casting a ballot.
Herzfeld unsuccessfully asked the court for an injunction requiring the District of Columbia Board of Elections and Ethics to keep the polls open late, since the religious prohibition on voting would end after sundown.
U.S. District Court Judge Emmet Sullivan criticized the city’s handling of the elections schedule, but denied the request. Since early absentee voting was already underway and the city was offering several alternative absentee voting options, Sullivan said, the rabbi’s claims did not meet the standard for the “extraordinary” measure of an emergency injunction.
Herzfeld’s attorney, Steven Lieberman of Washington’s Rothwell, Figg, Ernst & Manbech, said at the time that his client was mulling an appeal, but subsequent amended complaints filed with the court show Herzfeld opted to pursue a class action against the city to prevent future conflicts. The most recent amended complaint (PDF) was filed Friday.
"The whole purpose of the continuation of the lawsuit is to get the board of elections to agree to do the right thing, to agree to do what the judge told the board it should be doing," said Lieberman (Lieberman represents the National Law Journal's parent company, ALM).
A representative with the elections board could not immediately be reached for comment today.
At issue is D.C. law that lays out scheduling in the event of a special election. The board is required to schedule a special election on the first Tuesday following 114 days since the certification of a vacancy.
During the emergency injunction hearing, attorneys for the board and the city had argued that the law only allows for an extension of polling hours in the event of an emergency or by court order. Religious observances do not qualify as an emergency, they argued, going so far as to say that they wouldn’t be able to change the scheduling even if the election fell on Christmas Day. Herzfeld and Lieberman have expressed doubts about that statement.
The city's attorney had also argued that Herzfeld and other observant Jews were not being denied the right to vote entirely, pointing to several options provided for absentee voting.
In denying Herzfeld’s request, Sullivan had expressed his disappointment with election officials for failing to seek a court order to alter voting hours, saying he “would have happily granted such an order.”
Herzfeld and his co-plaintiffs are alleging that by requiring observant Jews to take more steps to vote than other residents, the board violated their First and Fifth Amendment rights. The class is seeking a court order that would require the city to take any necessary steps to prevent a future scheduling conflict, or, in the event a conflict cannot be avoided, to extend polling hours.
“There is a reasonable expectation that Observant Jewish voters residing in the District of Columbia may be subject to the same problems in the future – particularly since there are ten Tuesdays within the next three years on which Observant Jews would be prohibited from voting,” the complaint states.
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