A Big Day for D.C. Democracy

October 1 will be a big day for democracy in the District of Columbia. That’s when the D.C. Council will decide whether to carry out the overwhelming decision of D.C. voters to begin electing their Attorney General in 2014.

You’ll remember that in July, a divided Council voted to delay the election until 2018, and to significantly downsize the Office of the Attorney General by moving hundreds of agency lawyers from the elected Attorney General to the Mayor.

The election delay was proposed through a last-minute amendment. It came before the Council even though its own General Counsel advised that it had no authority to postpone the election, and even though the current Attorney General urged against the postponement because it would contradict the will of the voters.

A majority of the Council nevertheless voted to postpone the election, apparently for two reasons. Some members said that electing the Attorney General is not a good idea. Others wanted more time to give careful consideration to the proposal to transfer agency counsel to the Mayor.

As valid as those concerns may be, they don’t justify overriding the people’s decision in the 2010 referendum. Nearly 76% of D.C. voters granted themselves greater democracy by ratifying a Home Rule Charter Amendment making the Attorney General elected by the people–rather than appointed by the Mayor-beginning in 2014.

Not only is overriding the will of the people a bad step for D.C. democracy, it’s also become clear that the Council has no legal authority to take that step. Some have observed that it’s not unprecedented for the Council to modify or repeal a law approved by the people in a popular vote. But the referendum on the Elected Attorney General Charter Amendment is entirely different.

Our pro bono partners at Latham & Watkins LLP recently researched this question and came to the same conclusion as the Council’s General Counsel: The Charter–essentially the District’s constitution–may be amended only by a Council act ratified by the people in a referendum, or by an act of Congress. As a result, the Charter Amendment requires the first election to take place in 2014. There’s simply no precedent or authority for the Council to overturn a Charter Amendment ratified into law by the people.

We think the passage of the referendum should have put to rest the debate over whether and when the District should have an elected Attorney General. We also think that the proposal to transfer authority over agency counsel from the Attorney General to the Mayor is completely inconsistent with the purpose of the referendum–making the operations of the Attorney General’s office independent of the Mayor and accountable to the people.

And regardless of the merits of that proposal, the time to have debated it was in 2010, 2011, or 2012–not now, on the eve of the first election when there is insufficient time to give that proposal the careful attention it deserves. Moreover, downsizing the office at this point will almost certainly discourage good candidates from running for this important office.

Fortunately, the Council still has time to get this right. On October 1, it will vote again on the issue. When it does, we think it should honor the will of the people by putting the election back on track for 2014 and leaving for a later time the careful consideration of any proposals to downsize the office of the Attorney General.

If the Council does this, it will be a great day for democracy in D.C.

– Walter Smith

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