April 28 Update: The Court of Appeals has denied McDuffie's appeal, saying he is not qualified to run for D.C. Attorney General.
Original Story:
It’s a waiting game at this point to determine who will be on the ballot for the next attorney general in Washington, D.C. Current DC Councilmember Kenyan McDuffie was running for the position until Bruce Spiva challenged whether he qualified to run for the position because McDuffie is not “actively engaged” as an attorney at the moment.
McDuffie filed an appeal that was heard in front of judges Wednesday.
"Actively engaged," were the two words sparking debate. They're also the two words that ultimately had McDuffie removed from the ballot for the next attorney general, pending the outcome of his appeal to be included. D.C. law requires that candidates for attorney general to be “actively engaged” as a lawyer for five of the last 10 years in order to run.
“What does 'actively engaged' mean in five?” Judge Phyllis Thompson asked, Thompson is one of the three-judge panel, also consisting of Judges Catharine Easterly and Loren AliKhan.
D.C. Board of Elections Attorney Christine Pembroke responded, “Well, there's certainly no discussion of it in the legislative history, but I think that Judge Easterly has correctly identified a logical meaning of that and that means that you're working actively carrying out the work as an attorney, not on sabbatical or not on some sort of lead," Pembroke said.
McDuffie’s attorney, Baruch Weiss, argued he should be allowed to run for the office, even under the current law.
“We are focusing primarily on the argument that he did serve as an attorney, he was engaged as an attorney, because he used the legal skills which he had in order to do the work that he had to do in his position. Because after all, council members draft and analyze laws, that is part of the definition of what a lawyer does,” Weiss said.
Ted Howard represented Bruce Spiva, who's campaigning for attorney general, and argued the rules are clear. He added the point that McDuffie serving on the D.C. Council, even though he’s an attorney, doesn’t qualify as being “actively engaged” as an attorney.
“Rule 49 effectively defines what the practice of law is in the District of Columbia; as regards to members of the District of Columbia Bar. I don’t know why that definition would be ignored,” Howard said.
Time is of the essence and the D.C. Board of Elections spokesperson Nick Jacob said the board stands by its decision that under the current rule, McDuffie doesn’t qualify and D.C. Council may need to consider the verbiage used.
“The D.C. Council wrote the law originally. I know that there's been a lot of talk for many, many years to clarify this. It's incumbent upon them to address that, I believe,” Jacob said.
At the end of the hearing, the judges didn’t say when a decision will be made.
But Jacob said, "We are doing our ballot lottery for ballot order on Friday. And then that's where we can finalize our ballots. My understanding is that the court of appeals will render a decision fairly quickly, and we await that decision," he said.
DCBOE will mail each registered D.C. voter a mail-in ballot ahead of the June 21 Primary Election. They will begin sending mail-in ballots to all registered voters on May 16.