McDuffie has represented Ward 5 on the D.C. Council since 2012, a position that his campaign argued should count toward that requirement. After more than an hour of deliberation, the board ruled against him.
“When I read the statute in question … I read it to require more than a candidate being a member in good standing of the bar and an employee in the District of Columbia,” said Gary Thompson, chair of the three-member Board of Elections. “It’s got to include more than that — namely that person must be actively engaged as an attorney.”
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In a statement, McDuffie’s campaign vowed to appeal the board’s ruling, calling it “an attack on our democracy and on working people in DC.”
“When you come from communities like mine and spend your career taking on the powerful, you get used to people trying to hold you back,” said McDuffie, who opted to run for attorney general instead of seeking reelection to the city council. “We’re taking this ruling to the courts where we expect to win on appeal.”
McDuffie has raised more money than his opponents and racked up several endorsements in recent weeks, including from the city’s largest public-sector labor union. As it stands, the board’s decision would remove him from the June 21 ballot, leaving Spiva, a former partner at Perkins Coie; Ryan Jones, a local attorney who launched his own D.C. firm in 2014; and Brian Schwalb, partner-in-charge of the Venable law firm, who was endorsed by Racine earlier this year.
Ted Howard, an attorney for Spiva’s campaign, argued Monday that while McDuffie may technically be a lawyer employed by the District, his daily work and responsibilities as a council member are not akin to those of an active lawyer. That distinction is important with respect to legal experience and expertise, he added.
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“We believe actively engaged as an attorney must necessarily mean employed in a position in which the person is functioning or acting as an attorney,” Howard said. “A council member is not actively engaged as an attorney, because he or she is serving in a position in the D.C. government for which status as a licensed attorney is not even required.”
Thorn Pozen, an attorney for McDuffie’s campaign, countered that the statute “does not require him to be a specific type of attorney or even hold a job that requires him to be an attorney.” Pozen said the provision allows the city’s attorney general “to be an attorney from a wider array of experiences and background, other than just an attorney from a firm, a law school or a courthouse.”
Joe Sandler, another attorney for McDuffie, noted that McDuffie chaired the council’s judiciary committee, which oversees D.C. courts and other aspects of the criminal justice system, including the office of the attorney general, and has moved to enact laws governing the use of criminal records.
“Can you imagine that job being performed by a non-attorney?” Sandler asked.
Howard later noted that council member Charles Allen (D-Ward 6) currently chairs the judiciary committee and is not a licensed attorney.
Ultimately, Thompson and the board concluded that McDuffie was not qualified, based on his experience in concert with the D.C. Code.
“For the reasons expressed in the arguments made by the challenger, I’m persuaded that the candidate does not meet the qualifying language of the statute,” Thompson said.
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The Board of Elections was expected to issue a written opinion on its decision by Monday evening.
“The people of DC deserve an Attorney General who is ready on day one to take on the responsibilities of the office,” Alaina Haworth, campaign manager for Spiva, said in a statement after the ruling. “That’s why the Council enacted, and District voters approved, these specific, minimum qualifications that Councilmember McDuffie failed to meet.”
Monday’s hearing is unlikely to be the last high-profile challenge the Board of Elections considers ahead of the June 21 primary. Earlier this month, D.C. Council member Robert C. White Jr. (D-At Large), who is running for mayor, challenged thousands of signatures gathered by council member Trayon White Sr. (D-Ward 8) for his own mayoral bid.
Robert White’s campaign said it found issues with about 2,800 of the 4,300 signatures submitted by Trayon White’s campaign, which would bring him shy of the 2,000 signatures that mayoral candidates need to make the ballot.
On Friday the board determined preliminarily that Robert White’s challenge fell short. Trayon White’s campaign said in a statement that in an initial review, the board said 2,192 of the 2,768 signatures in question were valid, leaving with him nearly 2,200 valid signatures — enough for ballot access.
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At a news conference Friday afternoon, Trayon White decried the challenge and indicated that he was hurt by the move from his fellow council member.
“I saw Robert White as a brother,” he said. “And so it was really disingenuous, and I say sneaky, what he did. But that’s the name of the game.”
Zoe Ades, Robert White’s deputy campaign manager, declined to comment Monday on whether the campaign would withdraw the challenge or move forward with the hearing process.