Updated at 10:52 a.m.
City officials agreed Friday to settle a lawsuit filed by a local Orthodox rabbi over the scheduling of a special election during a Jewish holiday.
According to the settlement agreement (PDF), Washington Mayor Vincent Gray (D) will introduce and support legislation to the D.C. Council within three months that would give the D.C. Board of Elections and Ethics more flexibility in scheduling elections.
Instead of requiring that special elections take place the first Tuesday more than 114 days after a council seat becomes vacant, the new legislation (PDF) would give the board a window of between 100 and 130 days.
“The proposed legislation, when enacted by the city council, will specifically give the board of elections the authority and direct them to schedule elections so they do not occur on religious holidays,” said Steven Lieberman of Washington’s Rothwell, Figg, Ernst & Manbech, who represented Herzfeld."This is a win for everybody," he added.
In a written statement, Ted Gest, a spokesman for the Office of the Attorney General, said that, "we are pleased that this case was settled on a sensible basis, without any financial cost to the city and with limited court involvement." Representatives of the mayor’s office and the Board of Elections and Ethics did not immediately return a request for comment.
Herzfeld, who leads Ohev Shalom-The National Synagogue in Northwest Washington, failed to secure an emergency injunction in April that would have forced the city to reschedule or extend hours during a special election on April 26. That day was the eighth and final day of Passover; observant Jews are prohibited from signing their name or completing an electronic circuit, in effect barring them from casting a ballot.
Herzfeld pursued his lawsuit in U.S. District Court for the District of Columbia after the election; the court denied the injunction because early voting was already underway and the city was offering alternative absentee voting options.
The rabbi and his co-plaintiffs claimed that by requiring observant Jews to take more steps to vote than other residents, the board violated their First and Fifth Amendment rights. The board had argued that its hands were tied by the 114-day rule set out in D.C. Home Rule Act.
The case sparked a heated exchange between Herzfeld and the city over how the board would have handled a similar conflict over Christmas. The city had filed to strike language from Herzfeld’s amended complaint accusing city officials of falsely stating that even if the election had fallen on Christmas Day, they would not have been able to change the date. The settlement means the court won’t have to weigh in on pending motions.
The city and Herzfeld have been in settlement talks since at least October, according to status reports and motions to stay the case filed with U.S. District Judge James Gwin. Gwin is a judge on the U.S. District Court for the Northern District of Ohio, but he was assigned to take this case in September in order to free up the docket.
There is no guarantee in the settlement that the council will pass the legislation, but Lieberman said he doesn’t expect to face any opposition. “It’s always dangerous to predict what’s going to happen in the political arena. I can’t believe that any representative of the people of the District of Columbia would be opposed to legislation that would broaden participation in elections,” he said. Lieberman did not seek attorney fees or any other costs from the city.
A special election is pending in light of the recent resignation of D.C. Councilmember Harry Thomas Jr. (D-Ward 5). Assuming the board follows the 114-day rule, that election would likely take place in the beginning of May; Passover is in early April.