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Jul 04, 2023

Board of Elections Sides with Elissa Silverman Again

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Who would’ve ever imagined that former At-Large Councilmember Elissa Silverman's polls of the Ward 3 Council race would go on to prompt not one, not two, but three different hearings before the Board of Elections? At least, for Loose Lips’ sake, the latest proceeding was mercifully short.

In the latest bit of drama involving that fateful survey, the BOE quickly rejected an appeal from the Office of Campaign Finance Wednesday. OCF claimed that the board's ruling last month overturning its controversial reprimand of Silverman was "fatally flawed," but the BOE didn't even choose to hear oral arguments from OCF's lawyers and rejected those claims out of hand.

It's a bit surprising to see the office trying again on this matter for all sorts of reasons. For one, it's not like this appeal headed to a different panel of judges—OCF was basically asking the board to admit it screwed up a little more than a month ago. And for another, all the acrimony over the at-large election seemed to be fading in the rearview, what with At-Large Councilmember Kenyan McDuffie firmly ensconced in his new office and Silverman out of the political spotlight for the first time in roughly a decade.

It certainly felt like an odd choice to Silverman. She told LL that, after all this, she believes OCF (and its general counsel, William SanFord) is just being "vengeful" in still pursuing the case.

"Bill SanFord should not be allowed to continue being their general counsel," Silverman says. "It drives me insane that he decided to rule on something right before the election, which was then unanimously overturned. He should be completely embarrassed by that. And he's allowed to keep his job and I get kicked out of a job."

SanFord argued in his Jan. 20 motion for a reconsideration that this appeal is all about protecting OCF's power to police elections, not any sort of vendetta. He argued that the BOE's ruling "will severely undermine campaign finance in the District of Columbia and the Fair Elections program in particular, by diminishing the enforcement authority of the OCF to an extent that the agency cannot effectively safeguard public funds." SanFord believes Silverman's decision to use Fair Elections to poll a race she wasn't involved in required a "greater degree of scrutiny," which he feels the board did not provide in its examination of the matter.

"While [Silverman] has asserted that the polls were conducted to enable her to make an informed decision regarding whom she would endorse, she went beyond that stated goal and used the poll results to engage in discussions with two candidates regarding vote splitting and those candidates withdrew and endorsed the same candidate [Silverman] endorsed," SanFord wrote, alluding to Silverman's conversations with Ward 3 candidates Ben Bergmann and Tricia Duncan about the race and their ultimate support for now-Councilmember Matt Frumin.

"Moreover, [Silverman] failed to inform one of the two candidates who subsequently withdrew from the Democratic primary election that she was actually polling higher than the candidate the [Silverman] endorsed in one of the polls," SanFord wrote, presumably referring to Duncan. That seems to be one of the first references to the actual content of Silverman's polling throughout this monthslong saga (though Silverman remains adamant that she did not discuss specific results with either candidate).

None of that much mattered to the board. Chair Gary Thompson noted that OCF initially claimed that it was a violation of Fair Elections rules merely to use public funds to poll a race besides Silverman's at-large contest, regardless of her reasons for doing so or what she did after running the polls, so SanFord is shifting his arguments a bit.

"We declined that argument previously and we decline it now," Thompson said.

It brings LL no pleasure to report that the arguments over this poll are likely to continue for the foreseeable future. Erstwhile Council candidate and Ward 3 State Board of Education Rep. Eric Goulet filed his own campaign finance complaint about the matter, alleging Silverman illegally coordinated with Duncan and Bergmann. Longtime political operative Chuck Thies did the same, targeting Bergmann and Duncan specifically for allegedly accepting an "in-kind contribution" for their conversations with Silverman about the race. Both are still outstanding, as far as Silverman knows—in a reply to LL's tweet about the board's recent ruling, Thies said he is "absolutely" still pursuing his complaint.

This all thoroughly vexes Silverman, who says she is "trying to move on with my life" in the wake of her loss, but has spent the past few months juggling OCF complaints and BOE hearings as she's tried to figure out her post-Council career. She's already spent down most of what's left in her campaign account paying for high-priced legal services—Jason Downs, a former top deputy to ex-Attorney General Karl Racine, doesn't exactly come cheap. She paid his firm, Brownstein Hyatt Farber Schreck, $22,500 for his services on Jan. 23, according to her latest campaign finance report.

She only has about $2,300 left over from the election, and isn't drawing a paycheck right now. And she doubts she can accept pro bono work from a friendly lawyer like Racine, after the Council went out of its way to ban politicians from accepting discounted rates from attorneys in ethics reform legislation passed a decade ago. (She can thank Fred Cooke Jr., who spurred the creation of this ban with his work simultaneously lobbying the Council and representing embattled pols like Harry Thomas Jr. and Kwame "Fully Loaded" Brown.)

"I’m not a lawyer, I’m just a working person," Silverman says. "I guess if it moves forward, I’ll represent myself, because I have no other option because of the Fair Elections rules. It's just crazy."

If this is all so expensive and time-consuming, LL asked, why not just let it go? Silverman didn't exactly sound ready to mount a political comeback in her last interview with LL, saying she needed some time away from the Wilson Building. Why not just accept OCF's judgment and pay whatever fine they levy? Their initial penalty for all this was about $6,300, surely cheaper than hiring more attorneys.

But that would require giving up on her conviction that she did nothing wrong with those Ward 3 polls. Even in the political wastelands, she just won't let that go.

"It's because I am not guilty," Silverman says. "I’m the one who is within the law. Yet I’m the one who's been put on defense constantly here. [SanFord] is the one who interfered in the election."

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