No.

22-AA-276

In the District of Columbia Court of Appeals Clerk of the Court

Received 04/26/2022 09:56 AM

KENYAN McDUFFIE,
Applicant,

v.

DISTRICT OF COLUMBIA BOARD OF ELECTIONS,

Respondent.

On Application for Expedited Review of an Order of the

District of Columbia Board of Elections, No. 22-003 (Apr. 18, 2022)

REPLY IN SUPPORT OF
APPLICATION FOR EXPEDITED REVIEW

Thorn L. Pozen Baruch Weiss

Kevin M. Hilgers Stephen K. Wirth
GOLDBLATT MARTIN POZEN LLP Samuel F. Callahan
1432 K Street, N.W., Suite 400 ARNOLD & PORTER KAYE SCHOLER LLP
Washington, D.C. 20005 601 Massachusetts Ave., NW
Washington, DC 20001
Joe Sandler Tel.: +1 202.942.5000
SANDLER REIFF LAMB Fax: +1 202.942.5999
ROSENSTEIN & BIRKENSTOCK, P.C. baruch.weiss@arnoldporter.com
1090 Vermont Ave. N.W., Suite 750
Washington, DC 20005

Attorneys for Applicant Kenyan McDuffie

 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................ii 
REPLY ..................................................................................................................... 1 
ARGUMENT ........................................................................................................... 3 
A.  The presumption of eligibility applies ...................................................3 
B.  The Board’s interpretation is ineligible for deference .........................4 
C.  Mr. McDuffie is qualified under the plain language of
§ 1-301.83(a)(5)(D) ....................................................................................9 
D.  The Board’s reading of the statute renders § 1-301.83(a)(5)(D)
superfluous ..............................................................................................14 
E.  The Board’s interpretation produces absurd results that the
Council did not and could not have intended ......................................18 
CONCLUSION...................................................................................................... 20 
CERTIFICATE OF SERVICE .......................................................................... 22 

i
 TABLE OF AUTHORITIES

Cases Page(s)

Abrams v. Lamone,
919 A.2d 1223 (Md. 2007) ................................................................................. 15

Bates v. D.C. Bd. of Elections & Ethics,

625 A.2d 891 (D.C. 1993) ............................................................................ 4, 5, 6

Best v. D.C. Bd. of Elections & Ethics,

852 A.2d 915 (D.C. 2004) .................................................................................... 3

Bysiewicz v. Dinardo,
6 A.3d 726 (Conn. 2010) .................................................................................... 15

Chevron U.S.A. Inc. v. Natural Res. Defense Council, Inc.,

467 U.S. 837 (1984).............................................................................................. 4

Cobell v. Norton,
240 F.3d 1081 (D.C. Cir. 2001)........................................................................... 6

D.C. Appleseed Ctr. for L. & Just., Inc. v. D.C. Dep’t of Ins.,
Sec., & Banking,
54 A.3d 1188 (D.C. 2012) ............................................................................ 4, 6, 9

D.C. Bd. of Elections & Ethics v. District of Columbia,

866 A.2d 788 (D.C. 2005) .................................................................................. 14

D.C. Off. of Hum. Rts. v. D.C. Dep’t of Corr.,

40 A.3d 917 (D.C. 2012) ...................................................................................... 7

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) ................................................................................... 5, 14

Good Fortune Shipping SA v. Comm’r of Internal Revenue Serv.,

897 F.3d 256 (D.C. Cir. 2018)......................................................................... 8, 9

Henson v. Santander Consumer USA Inc.,

137 S. Ct. 1718 (2017) ....................................................................................... 13

ii
Cases—Continued Page(s)

Kisor v. Wilkie,
139 S. Ct. 2400 (2019) ......................................................................................... 5

*Lawrence v. D.C. Bd. of Elections & Ethics,

611 A.2d 529 (D.C. 1992) .......................................................................... 2, 3, 14

Mallof v. D.C. Alcoholic Beverage Control Bd.,

43 A.3d 916 (D.C. 2012) ...................................................................................... 5

Nat’l Mining Ass’n v. Kempthorne,

512 F.3d 702 (D.C. Cir. 2008)............................................................................. 6

United States v. Mead Corp.,

533 U.S. 218 (2001).............................................................................................. 7

*U.S. Parole Commission v. Noble,

693 A.2d 1084 (D.C. 1997) ................................................................ 5, 6, 7, 8, 14

Statutes

D.C. Code
§ 1-204.33(b)....................................................................................................... 12
§ 1-301.83(a) ............................................................................................. 4, 11, 13
§ 1-301.83(a)(5) .................................................................................................... 9
§ 1-301.83(a)(5)(D) ................................................................................... passim
§ 1-608.51(2) ....................................................................................................... 17

Legislative Materials

A. 22-270, § 2(a), 65 D.C. Reg. 2368 (Mar. 9, 2018) ............................................ 17

iii
 REPLY

Kenyan McDuffie is a skilled lawyer and dedicated public servant who

meets all of the necessary qualifications to serve as the District’s next

Attorney General. The parties agree that the purpose of the qualification

statute is to ensure that candidates for Attorney General have sufficient

“experience, connection and commitment to the District” to serve at its chief

legal officer. Pet. Br. 9-10. And no one disputes that those words describe Mr.

McDuffie. Neither the Board of Elections nor his opponent, Mr. Spiva,

meaningfully contests that Mr. McDuffie, who uses his legal skills and

expertise routinely as an attorney-councilmember, has more than enough

“experience, connection and commitment to the District” to ably serve as the

District’s next Attorney General. Indeed, seven of the ten living

Councilmembers who sponsored and passed this statute have filed an amicus

brief stating unequivocally that they did not intend to exclude candidates like

Mr. McDuffie when they passed this statute.

Nevertheless, the Board and Mr. Spiva seek to exclude Mr. McDuffie

from running based on a hypertechnical, narrow reading of what it means to

be “actively engaged as” an attorney. They say that—although he has been an

active member of the D.C. Bar since 2008, has been employed by the District

1
for the past decade as a Councilmember, and uses his legal skill and judgment

every day on behalf of his constituents—he was not “actively engaged for at

least five of the 10 years immediately preceding years, as … [a]n attorney

employed … by … the District of Columbia” because he was not “employed as

an attorney” or “in the position of attorney.” A10.

That argument is wrong as a matter of text, structure, and legislative

history. Requiring that candidates by “employed as” attorneys adds a new

qualification to subsection (D) that is nowhere in the statute, that the Council

knew how to adopt but didn’t (as reflected in its inclusion in other provisions

but not here), and that causes subsection (D) to be entirely redundant of

subsection (A). Every attorney employed as an attorney under the Board’s

interpretation of subsection (D) is also in the practice of law under subsection

(A).

But the Board’s decision is not merely wrong as a matter of technical

interpretation. It also compromises the right of the people of the District of

Columbia to vote for their chosen candidate for the Office of the Attorney

General. That right is fundamental. And that is why this Court, like every

other, gives candidates every benefit of the doubt in favor of eligibility—

interpreting the qualifications for office “in an inclusive spirit,” Lawrence v.

2
D.C. Bd. of Elections & Ethics, 611 A.2d 529, 532 (D.C. 1992)—“so as to

effectuate the basic goal, enshrined in [the District’s election laws], of enabling

the voters to ‘express their preference.’ ” Best v. D.C. Bd. of Elections &

Ethics, 852 A.2d 915, 919 (D.C. 2004) (quoting D.C. Code § 1-1001.05(b)(1)).

That is all Mr. McDuffie asks this Court to do: to interpret the

qualifications for Attorney General inclusively to ensure that voters can

express their preference and vote for the candidate of their choice—one who

no one disputes has all of the skills, knowledge, and experience necessary to

serve as the District’s Attorney General.

ARGUMENT

A. The presumption of eligibility applies

Neither the Board nor Mr. Spiva dispute that this Court, like others

across the Nation, applies a presumption in favor of candidate eligibility:

“qualifications for candidacy [must] be interpreted in an inclusive spirit.”

Lawrence, 611 A.2d at 532; see Pet. Br. 17-20. Nor do they dispute that courts

apply this presumption to avoid the significant constitutional harm that arise

when candidates are forbidden from running for office and when voters are

forbidden from electing candidates of their choice. See Lawrence, 611 A.2d at

532 (“any decision in this area affects not only the prospective candidate but

3
also the voters as a whole, since a meaningful part of the right to vote is to vote

for a candidate of one’s choice”); Pet. Br. 17-19.

B. The Board’s interpretation is ineligible for deference

In an effort to counteract this presumption of eligibility, the Board and

Mr. Spiva suggest that this Court must defer to the Board’s reading under the

Chevron doctrine. Board Mot. 11-12; Spiva Br. 15-16; see Bates v. D.C. Bd. of

Elections & Ethics, 625 A.2d 891, 893 (D.C. 1993) (“In reviewing an agency

decision which interprets or applies statutory provisions, we apply the

Supreme Court’s two-part test established in Chevron U.S.A. Inc. v. Natural

Res. Defense Council, Inc., 467 U.S. 837 (1984).”). These deference arguments

fail for multiple independent reasons.

First, this statute is not ambiguous in the sense necessary to trigger

deference. Pet. Br. 14, 26. Under Chevron, the Court must “first … determine

whether the meaning of the statute is clear.” Bates, 625 A.2d at 893 (D.C.

1993). “Only when the statute is ambiguous does the court turn to the second

part of the inquiry, which is to determine whether the agency’s decision is

based on a permissible construction of the statute.” Id. (emphasis added)

(citing Chevron, 467 U.S. at 842-43). “Accordingly, if the language of the

4
statute involved is clear, we do not defer to the agency’s interpretation.” Id.;

see, e.g., Mallof v. D.C. Alcoholic Bev. Control Bd., 43 A.3d 916, 918 (D.C. 2012).

And, important here, this question of ambiguity does not depend on plain

text alone. Rather, the Court at Chevron Step One must “exhaust all the

‘traditional tools’ of construction”—including “text, structure, history, and

purpose”—to determine whether a statute is ambiguous. Kisor v. Wilkie, 139

S. Ct. 2400, 2415-16 (2019) (quoting Chevron, 467 U.S. at 843). And because

interpretive “canons” are “traditional tool[s] of statutory construction,”

“[w]here … the canons supply an answer, Chevron leaves the stage.” Epic Sys.

Corp. v. Lewis, 138 S. Ct. 1612 (2018) (quotation marks omitted); see also, e.g.,

City of Arlington, Tex. v. FCC, 569 U.S. 290, 309 (2013) (Breyer, J., concurring

in part and concurring in the judgment) (“the statute’s text, its context, the

structure of the statutory scheme, and canons of textual construction are

relevant in determining whether the statute is ambiguous”).

This Court in U.S. Parole Commission v. Noble, 693 A.2d 1084 (D.C.

1997), for example, considered the “presumption against implied repeal,”

along with the statute’s “language and relevant legislative history,” before

concluding that the statute did “not permit deference” to the agency’s views.

Id. at 1099, adhered to on reh’g en banc, 711 A.2d 85 (D.C. 1998). The D.C.

5
Circuit has done the same thing under other interpretive canons. See, e.g.,

Nat’l Mining Ass’n v. Kempthorne, 512 F.3d 702, 711 (D.C. Cir. 2008) (canon

of constitutional avoidance “trumps [agency] deference”); Cobell v. Norton,

240 F.3d 1081, 1101 (D.C. Cir. 2001) (“Chevron deference is not applicable in

this case” because “[t]he governing canon of construction requires that

statutes are to be construed liberally in favor of the Indians, with ambiguous

provisions interpreted to their benefit.” (quotation marks omitted)).

Here too, the traditional tools of statutory interpretation leave no

ambiguity for the Board to resolve. The statute is clear: its text, structure, and

history alone suffice to show that subsection (D) unambiguously encompasses

him. See, e.g., D.C. Appleseed Ctr. for L. & Just., Inc. v. D.C. Dep’t of Ins., Sec.,

& Banking, 54 A.3d 1188, 1215 (D.C. 2012) (agency’s interpretation foreclosed

at Chevron Step One because it was “not faithful to the statute’s language,

overall structure, and purpose”); Bates, 625 A.2d at 895 (“no basis for deferring

to the Board’s construction of the statute” because “the language” was

“clear”). Here we do not need to guess about the statute’s purpose. Its

enactors have told us: “None of the Amici, including the bill’s author or co-

sponsors, believed or believe that the language in subsection (a)(5) would

disqualify Council Members, who were members of the D.C. Bar, from seeking

6
to become Attorney General.” Amicus Br. 5. And even if this Court found that

text, structure, history, or purpose left any doubt, it still would need to

consider the longstanding presumption of eligibility in determining whether

the statute leaves ambiguity for the Board to resolve. Noble, 693 A.2d at 1099.

Second, and independently, this Court has held that an agency cannot

obtain Chevron deference “when the issue is purely one of law not involving an

agency’s attention to gaps or ambiguities in the statute it administers or to

technical applications.” Noble, 693 A.2d at 1098. That is because agency

deference “presupposes that some expertise beyond the court’s own is

needed.” Id.; see also, e.g., D.C. Off. of Hum. Rts. v. D.C. Dep’t of Corr., 40 A.3d

917, 923 (D.C. 2012) (same). Thus, where there is no gap in the statute and the

agency’s “expert input” amounts to nothing more than deciding “a legal

question that d[oes] not require expert agency insight,” no deference is due.

Noble, 693 A.2d at 1098; see, e.g., United States v. Mead Corp., 533 U.S. 218,

233 (2001) (no deference when agency does not “set out with a lawmaking

pretense in mind” and purports only to apply statute to the parties before it).

These principles preclude deference here. The Board’s decision did

not—and did not even purport to—apply administrative expertise to resolve a

gap in the qualifications statute. To the contrary, the Board rested its decision

7
solely on what it described as “the plain language of Section (a)(5)(D) and the

statute as a whole,” which it claimed to “interpret[] … exactly as it reads.” A11.

The Board elsewhere characterized its decision as compelled by the

“requirement to honor the plain and ordinary wording of the statute.” Id. The

Board on appeal doubles down on this characterization: Its decision was

compelled by “the statute’s unambiguous text, structure, and legislative

history”—not by its exercise of expert judgment to construe an ambiguous

text. Board Mot. 23; see also id. at 18 (“clear and unambiguous”); id. at 19

(“there is nothing facially ambiguous about the statute as it was passed”); id.

at 23 (“unambiguous”; “no ambiguity on the relevant requirement”). As in

other cases where this Court has declined to defer to an agency’s views, the

Board here decided a pure question of statutory interpretation “of the sort

that judges, not administrators, decide.” Noble, 693 A.2d at 1098.

Finally, even if this Court were to conclude that the statute is

ambiguous in the relevant sense, the Board’s interpretation “is unreasonable

and cannot stand.” Good Fortune Shipping SA v. Comm’r of Internal Revenue

Serv., 897 F.3d 256, 261 (D.C. Cir. 2018). “Even if” an agency’s interpretation

“is not unambiguously foreclosed by the statute’s language,” it can be

“unreasonable” and thus fail “at Chevron Step Two.” Id. “Whether an agency’s

8
construction is reasonable depends, in part, on the construction’s ‘fit’ with the

statutory language, as well as its conformity to statutory purposes.” Id.

(quotation marks omitted); accord D.C. Appleseed Ctr., 54 A.3d 1188, 1211 (no

deference where interpretation “plainly erroneous or inconsistent with the

statute”). For all of the reasons addressed in the following sections, the

Board’s interpretation cannot stand even if the statute does not

unambiguously preclude it.

C. Mr. McDuffie is qualified under the plain language of

§ 1-301.83(a)(5)(D)

The question in this case is what it means for someone to be “actively

engaged … as … [a]n attorney employed … by … the District of Columbia.”

D.C. Code § 1-301.83(d)(5). Mr. McDuffie’s interpretation reflects the ordinary

meaning of these words: To be “engaged as” a particular thing means to do

that thing; and to be “actively engaged” means simply to do that thing

routinely or frequently. Pet. Br. 22-23. Hence, a person is actively engaged as

an attorney employed by the District of Columbia when they are an attorney,

they are employed by the District, and their role as a District employee

routinely involves the use of legal skill or judgment.

Neither the Board nor Mr. Spiva dispute that—if that commonsense

interpretation controls—attorney-councilmembers like Mr. McDuffie are

9
qualified under subsection (D). Pet. Br. 23-24. Councilmembers who are

attorneys routinely use their legal skills and expertise in their capacity as

legislators. Among other things, they draft laws, investigate the real-word

effects of proposed and existing laws, oversee agencies to evaluate their legal

compliance, and supervise attorneys on their staff.

The Board and Mr. Spiva thus are forced to proffer a variety of

formulations that do not follow from the text. According to Mr. Spiva, for

example, subsection (D) requires that the candidate “hold a position that

requires one to be an attorney and is only open to an attorney,” i.e., to be

“employed in such capacity as an attorney.” Spiva Br. 17. Or, as the Board

asserts (at 23), a candidate must hold “an attorney position that requires

attorney credentials.” These inventive interpretations, varied as they are, boil

down to an assertion that “actively engaged as” means “employed as.” Spiva

Br. 25; see Board Mot. 13 (“the individual must be employed as an attorney”).

It does not.

To start, Mr. McDuffie most certainly has not “admit[ted] that ‘engaged

merely means ‘employed,’” as the Board suggests (at 13). Mr. McDuffie cited

multiple dictionaries reflecting that the word has several distinct meanings,

including to be “involved in activity,” “[t]o employ or involve oneself,” “to take

10
part in,” and “to embark on.” Pet. Br. 22. While the Board focuses exclusively

on the word “employ” in this multi-part definition, even that single word in

context does not mean to hire, but instead to use—e.g., “she employed all her

many skills in defense of her client.” And neither the Board nor Mr. Spiva

dispute that attorney-councilmembers are actively engaged as attorneys

under multiple others of these ordinary definitions—for example, because

they are actively “involved in activity” performed by attorneys and frequently

“take part in” attorney functions.

Mr. McDuffie’s brief also invoked real-world examples—which neither

the Board nor Mr. Spiva take issue with—to illustrate that “actively engaged

as” does not mean “employed as.” Pet. Br. 22-23. For example, a law firm

attorney can be actively engaged as a mentor to junior attorneys, even if that

is not the attorney’s primary role and even if mentorship is not a job

requirement imposed by the firm. Id. Or, to take another example, clinical law

professors hired as professors and employed in that capacity may be “actively

engaged as” attorneys—as is true of the many clinical professors who

participate in litigation and provide legal advice.

Other text within § 1-301.83(a) itself confirms that “actively engaged as”

means something different from “employed as.” In the very subsection at issue

11
here, the Council uses the word “employed”—the word the that the Board and

Mr. Spiva claims is synonymous with “engaged.” Specifically, under

subsection (D), a candidate must not only be “actively engaged” as an attorney

but also be “employed in the District of Columbia by the United States or the

District of Columbia.” If the Council wanted to limit candidates to those

“employed as attorneys,” why not use that same word already present in the

text? The statute could simply have required being “employed as an attorney

in the District of Columbia by the United States or the District of Columbia.”

Indeed, as the Board and Mr. Spiva admit, this is the formulation that

the Council has used in other statutes, confirming that it was not intended

here. In the statute governing judicial qualifications, which Mr. Spiva (at 10-

11) describes as “nearly identical” to and the “pattern[]” for the Attorney

General provision, the Council used the very language that the Board claims

the Council intended in § 1-301.83(a). Judges must, as relevant here, be

“employed as a lawyer by the United States or the District of Columbia

government.” D.C. Code § 1-204.33(b) (emphasis added). Likewise, the prior

version of the judicial qualifications statute—and the original text of the

Attorney General bill that ultimately was not enacted—used a similar

formulation that the Council could easily have used had it intended to impose

12
an “employed as” requirement, by requiring that attorneys employed by the

District be “employed in such capacity for at least five years.” Spiva Br. 12.

The Council in § 1-301.83 did not use this formulation, and courts “presume

differences in language like this convey differences in meaning.” Henson v.

Santander Consumer USA Inc., 137 S. Ct. 1718, 1723 (2017).

The Board and Mr. Spiva try to discount this drafting history—though

notably make no effort to downplay the contrast with the judicial qualifications

statute—because the “capacity” language appeared in a different eligibility

requirement that ultimately was not enacted in § 1-301.83(a). Board Mot. 20-

21; Spiva Br. 31-34. But they miss the fundamental point: The Council knew

how to tether qualifications to the “capacity” in which an individual was

employed, or to limit candidates to those “employed as a lawyer.” But the

Council opted for different language with a broader ordinary meaning.

At the very least, this Court could reasonably read the text of subsection

(D) and conclude that it covers attorneys employed by the District who

perform attorney functions, even if being an attorney is not a strict job

requirement. If this Court agrees, it must rule in Mr. McDuffie’s favor.

“[Q]ualifications for candidacy” must “be interpreted in an inclusive spirit”—

in part because “a critical ingredient of the electorate’s ability to vote

13
effectively is choice among the candidates with demonstrated support.”

Lawrence, 611 A.2d at 532. And as explained, this rule of construction must be

applied before considering whether to grant deference to the agency. Supra

section B. If, in light of the presumption of eligibility, the statute

unambiguously covers Mr. McDuffie, then “Chevron leaves the stage.” Epic,

138 S. Ct. at 1630; see Noble, 693 A.2d at 1099 (considering text, history, and

presumption against implied repeal before finding deference inappropriate).

D. The Board’s reading of the statute renders § 1-301.83(a)(5)(D)

superfluous

The Board’s reading of the statute renders the class of candidates

described in subsection (D)—those who are “actively engaged … as … [a]n

attorney employed … by … the District”—entirely redundant with candidates

who are “actively engaged … as … [a]n attorney in the practice of law” under

subsection (A) because there is no category of person who is “employed as [an]

attorney[]” who is not also “engaged … in the practice of law.” That outcome

violates the “basic principle” of statutory construction “that each provision of

[a] statute should be construed so as to give effect to all of the statute’s

provisions, not rendering any provision superfluous.” D.C. Bd. of Elections &

Ethics v. District of Columbia, 866 A.2d 788, 795 (D.C. 2005).

14
 Mr. Spiva and the Board contend that Mr. McDuffie’s superfluity

argument is “patently incorrect.” Spiva Br. 26. They assert that “[t]here are

many District of Columbia government employees who are employed as

attorneys, but nonetheless are not—or at least arguably are not—practicing

law.” Id.; see Board Mot. 15-16 (similar).1 But the only employees Mr. Spiva

and the Board identify who, they say, would fall within their reading of

subsection (D) are hearing examiners and administrative law judges. The

obvious problem with these examples is that neither hearing examiners nor

administrative law judges are “employed ‘as … attorney[s]’ ” or “in the position

of attorney.” A10. So even under the Board’s test, the class of persons who are

not attorneys in the practice of law under subsection (A) but are “employed as

attorneys” or “in the position of attorney” under subsection (D) would be a null

set. That is a classic example of superfluity.

1
The cases Mr. Spiva cites (at 19-20) in which other high courts have
disqualified candidates for the office of attorney general are all distinguishable
because the provisions at issue required the candidate to have been in the
“practice of law” or to have “practiced law” for a sufficient duration in the
state. See Abrams v. Lamone, 919 A.2d 1223, 1225 (Md. 2007); Bysiewicz v.
Dinardo, 6 A.3d 726 (Conn. 2010). Here, the District chose to expand the pool
of candidates to include attorneys, like Mr. McDuffie, who are not in the
“practice of law” but rather are “employed by” the District.

15
 Mr. Spiva attempts to resist this conclusion by recasting subsection (D)

to require a candidate to “hold a position that requires one to be an attorney

and is only open to an attorney, i.e., unless they are employed in such capacity

as an attorney.” Spiva Br. 17. As far as Mr. McDuffie can tell, most hearing

examiners are not required to be members of the bar, see Pet. Br. 29-30 & n.10,

and neither the Board or Mr. Spiva contend otherwise (much less cite any

provisions of D.C. law supporting their position). Indeed, at the time that § 1-

301.83 was enacted, the Comprehensive Merit Personnel Act did not include

any hearing examiners or administrative law judges in its definition of

“attorney”—not even the narrow carve-out now included. See A. 22-270, § 2(a),

65 D.C. Reg. 2368 (Mar. 9, 2018); Pet. Br. 30 n.10.

But, more fundamentally, the mere fact that a job—as a condition of

employment—requires an employee to be a member of the bar does not mean

that the employee has been “employed as an attorney,” as is necessary under

the Board’s atextual reading. Take, for an example, a law school that requires

its professors to be members of the bar. No one would describe a professor of

legal history as being “employed as an attorney.” The same goes for hearing

examiners and administrative law judges. Even if some proportion of these

employees are required to be members of the bar, that does not mean that

16
they have been “employed as” attorneys. They have been employed as hearing

examiners and administrative law judges, roles that are obviously distinct

from attorney, regardless of whether bar membership is a formal job

qualification. Indeed, the very statute Mr. Spiva cites identifies “attorneys,”

“hearing officers,” and “administrative law judges” as distinct categories of

employees precisely because they are not the same thing. See D.C. Code § 1-

608.81(a)(1), (b), (e).2

Mr. Spiva and Board try to distract from this major flaw in their

statutory interpretation by accusing Mr. McDuffie of creating superfluity.

Spiva Br. 29; Board Mot. 17. They claim that his reading of subsection (D) is

redundant with the requirement in subsection (a)(3) that all candidates be

“member[s] in good standing” of the D.C. Bar. But these provisions impose

distinct requirements and serve distinct purposes. Subsection (a)(3) requires

all candidates for Attorney General to be current members of the D.C. Bar,

which ensures that the Attorney General is authorized to appear in court to

2
Conversely, Mr. McDuffie’s reading of subsection (D) recognizes that
although hearing officers and administrative law judges are not strictly
“employed as attorneys,” many of them are in fact “actively engaged … as …
attorney[s]” because their duties include those that are typical of attorneys
and that require the exercise of legal skill and judgment, such as presiding
over hearings and writing legal decisions.

17
represent the District’s interests. For example, a candidate could satisfy

subsection (a)(5)(D)’s requirement by working for five years for the District

several years ago, and yet that candidate could let his D.C. Bar membership

lapse in the interim and thus be disqualified under subsection (a)(3). There is

no superfluity under Mr. McDuffie’s reading whatsoever.

E. The Board’s interpretation produces absurd results that the

Council did not and could not have intended

Finally, the Board and Mr. Spiva assert that reading subsection (D) to

cover individuals who are not employed in an attorney capacity produces

“absurd results.” Spiva Br. 38; see Board Mot. 21. But besides incanting this

phrase, they do actually not contend that the result here would be absurd. At

no point in their briefing do they suggest that Mr. McDuffie is actually

unqualified to serve as Attorney General—i.e., that he is the type of individual

that the Council could plausibly have intended to exclude from service.

Understandably so. Who better to enforce the District’s laws than an

experienced attorney who has helped write those laws? See Amicus Br. 3-6.

Rather, the purported absurdity is that there will be a “slippery slope

that opens the door of ballot access for countless individuals who,” unlike Mr.

McDuffie, “are unqualified for the position.” Board Mot. 21. But this argument

depends on a caricature of Mr. McDuffie’s position. As explained, under the

18
plain text of subsection (D), a person is actively engaged as an attorney

employed by the District of Columbia when they are an attorney, they are

employed by the District, and their role as a District employee routinely

involves the use of legal skill or judgment. That straightforward interpretation

resolves this case. And it does not require making “subjective” judgments

about Mr. McDuffie’s individual circumstances. Contra Board Mot. 18. Given

the nature of an attorney-councilmember’s role, this is not a close case:

Councilmembers who are attorneys undertake legislative activities that are

quintessentially legal in nature, and draw extensively upon their legal training,

judgment, and experience. Pet. Br. 24; Amicus Br. 6 (“The work of the Council

is inherently legal” and attorney members offer “different perspectives on how

best to resolve a problem legislatively”).

In any event, requiring adjudicatory bodies and courts to draw lines in

more difficult future cases is not “absurd.” The Board’s made-up “employed

as an attorney” rule might allow it to exclude candidates with greater ease, but

it is arbitrary, atextual, and limits eligibility in a way that cannot be squared

with the statute’s purpose or the presumption of eligibility. If, as the Board

and Mr. Spiva argue, the goal of § 1-301.83 is to ensure “legal expertise and

management experience,” Spiva Br. 9, the Board should apply a test that

19
measures whether the candidate uses skills fostering that expertise and

experience. It should not apply a wooden rule asking whether the candidate’s

employer required a law degree and maintenance of a bar membership.

To that end, the only absurd result here is the one that the Board and

Mr. Spiva advocates. The Board concluded that an attorney-councilmember

who has spent a decade drafting, analyzing, and advising on the District’s

unique and complex system of laws cannot be Attorney General. Meanwhile, a

sixth-year associate with no D.C. law expertise, a law professor focused

exclusively on issues of international arbitration, or an attorney in the

Counsel’s Office that serves Councilmembers like Mr. McDuffie are free to

run. The point is not to disparage the qualifications of any of those hypothetical

candidates who are qualified. The point is that the statute encompasses a wide

array of candidates with a wide range of experiences, leaving it to the voters

to decide who best could serve the public. The Council did not intend to forbid

voters from electing Mr. McDuffie as their Attorney General.

CONCLUSION

The Court should reverse the decision of the Board of Elections.

20
Dated: April 26, 2022 By: /s/ Baruch Weiss
Baruch Weiss
Stephen K. Wirth
Samuel F. Callahan
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Ave., N.W.
Washington, DC 20001
Tel.: +1 202.942.5000
Fax: +1 202.942.5999
baruch.weiss@arnoldporter.com
Thorn L. Pozen
Kevin M. Hilgers
GOLDBLATT MARTIN POZEN LLP
1432 K Street, N.W., Suite 400
Washington, D.C. 20005
Joe Sandler
SANDLER REIFF LAMB
ROSENSTEIN & BIRKENSTOCK, P.C.
1090 Vermont Ave. N.W., Suite 750
Washington, DC 20005
Attorneys for Applicant
Kenyan McDuffie

21
 CERTIFICATE OF SERVICE

I hereby certify that on April 26, 2022, I filed this brief using the Court’s

electronic filing system. In addition, I have served counsel of record for all

parties by email as follows:

Christine Pembroke
Senior Staff Attorney
DISTRICT OF COLUMBIA BOARD
OF ELECTIONS
1015 Half Street, S.E.
Washington, D.C. 20003
cpembroke@dcboe.org

Counsel for Respondent District of

Columbia Board of Elections

Theodore A. Howard
WILEY REIN, LLP
2050 M St., NW
Washington, D.C. 20036
thoward@wiley.law

Counsel for Bruce V. Spiva

Dated: April 26, 2022 /s/ Stephen K. Wirth

Stephen K. Wirth

22