
    Patricia SCOLARO, et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS & ETHICS, Respondent, Rebecca A. Sinderbrand, et al., Intervenors.
    No. 96-AA-1738.
    District of Columbia Court of Appeals.
    Argued April 30, 1998.
    Decided Sept. 10, 1998.
    
      Don W. Crockett, for petitioners.
    William O. SanFord, Silver Spring, MD, with whom Kenneth J. McGhie, Brooklyn, NY, was on the brief, for respondent.
    Daniel H. Bromberg, with whom Timothy B. Dyk and Laura Tuell Parcher, Washington, DC, were on the brief, for intervenors.
    Arthur B. Spitzer, Washington, DC, for the American Civil Liberties Union of the National Capital Area as amicus curiae.
    Before STEADMAN and RUIZ, Associate Judges, and GALLAGHER, Senior Judge.
    
      
      . Judge Steadman became a member of the division, replacing Judge Ferren, who retired from the court after authoring the court’s opinion which referred the case to the special master.
    
   RUIZ, Associate Judge:

We review a second time this petition challenging the November 5, 1996 election for two Advisory Neighborhood Commissions (ANCs) in Georgetown, after having referred the matter to the Superior Court, acting as special master under Superior Court Civil Rule 53(c), (d) and e(l), to conduct a hearing and make findings of fact and reach conclusions of law applying the principles we laid down in Scolaro v. District of Columbia Board of Elections & Ethics, 691 A.2d 77, 91-93 (D.C.1997). Judge Steffen W. Graae was appointed by the Chief Judge of the Superior Court to perform the requested task. Judge Graae has filed with this court a Report of Special Master dated February 13, 1998; petitioners (Patricia Scolaro and Beverly Jost), intervenors (James L. Fogarty and Rebecca A. Sinderbrand), respondent (D.C. Board of Elections and Ethics) and amicus curiae (American Civil Liberties Union), have submitted supplemental briefing on the special master’s Report and presented oral argument to the division. Having considered the Report, the supplemental briefs and oral argument, we deny the petition to set aside the 1996 election for ANCs 2E03 and 2E05.

I.

Jurisdiction; Burden of Proof; Standard of Review

We entertain this petition, and referred the case to a special master, under the special jurisdictional grant of D.C.Code § 1-1315(b) (1992 Repl.), which authorizes the court, upon request by a voter, to review an election and either set aside the certified result and declare the “true result,” or void the election in whole or in part. Petitioners seek to safeguard their constitutional right to vote against dilution by ineligible votes. See Scolaro, supra, 691 A.2d at 77. Intervenors and respondent, however, claim that the challenged student voters’ right to vote is equally at stake and that they fulfilled the statutory requirements for eligibility as electors as evidenced by their duly completed and sworn voter registration forms. As noted in our earlier opinion, the sworn voter registration forms create a presumption of eligibility to vote, which petitioners have the burden to rebut. See id. at 91 (citing Allen v. District of Columbia Bd. of Elections & Ethics, 663 A.2d 489, 495 (D.C.1995)). Moreover, where the Board has certified an election, the burden of proof also is on the petitioners. See Allen, supra, 663 A.2d at 495 (citations omitted) (“The Board’s certification was not conclusive, but was prima facie evidence that the challenged votes were good, and threw the burden of proof on the petitioners.”).

In order to obtain relief, the petitioners’ burden is not only to show defects or irregularities in the election; petitioners must prove also that the flawed election led to a result that is not “true,” consistent with the statutory admonition that “[t]he Court shall void an election only for fraud, mistake, ... or other defect, serious enough to vitiate the election as a fair expression of the will of the registered qualified electors voting therein.” D.C.Code § 1-1315(b) (emphasis added).

When we referred the case to the special master, we left open the question of what standard of review we would apply to the special master’s findings of fact. See Scolaro, supra, 691 A.2d at 83, 90. If the special master is viewed as a surrogate for the Board, its findings of fact would be reviewed for “substantial evidence on the record as a whole.” See Allen, supra, 663 A.2d at 495. If viewed as within traditional trial court function, or in the role of special master, Judge Graae’s findings would be reviewed under the “clearly erroneous” standard. See Super.Ct. Civ.R. 52(a), 53(e)(2). As we consider that Judge Graae’s findings of fact meet both standards, we need not resolve which standard applies, assuming there is a substantive difference between the two. See Designers of Georgetown, Inc. v. E.C. Keys & Sons, 436 A.2d 1280, 1281 (D.C.1981). We also see no need to address the issue at this time as we have been advised by amicus curiae, American Civil Liberties Union, that the Council of the District of Columbia is considering legislation that would provide a Board hearing for election-day challenges, at least by the challenged voter. See Bill 12-499, the “Election Day Challenge Procedural Amendment Act of 1998.” It was the fact that there was no express provision in the law for a Board hearing on election-day challenges that persuaded us to refer the matter to a special master in the first place. See Scolaro, supra, 691 A.2d at 90. If the statute were to provide for a hearing at the request of both the challenger and the challenged voter in the event of election-day challenges, it is unlikely that the need for a referral to a special masters will arise. Id. at 91 & n. 17 (referring to need for hearing at request of challenger, not only of challenged voter).

Some of Judge Graae’s determinations involve mixed questions of law and fact. We review those determinations under our usual deferential standard of review for factual findings (applying either the “clearly erroneous” or “substantial evidence” standard of review) and de novo review to the ultimate legal conclusions based on those facts.

II.

Proceeding Before the Special Master

Upon referral by this court, Judge Graae conducted two days of a “predicate hearing.” At issue during that hearing was the probativeness of the information tendered by petitioners who challenged certain Georgetown University students’ residence in the District of Columbia for purposes of eligibility to vote, as required by D.C.Code § 1-1311(a) (1997 Supp.) The trial court allowed petitioners to present, in the first instance, only such evidence as they had and could have presented, had they been permitted to do so, on the day of the challenged election on November 5, 1996. If the evidence thus presented was sufficient to overcome the presumption of residence we have established is raised by a duly signed and sworn voter registration, the special master would hold additional hearings. Because the special master concluded that the evidence proffered was insufficient to overcome the presumption of eligibility to vote, no further hearings were held.

Our dissenting colleague agrees with petitioners and amicus curiae that the case must be referred once again to the special master because he failed to do as requested by this court. They argue that the special master was required by our first opinion in this case to conduct an evidentiary hearing with respect to individual challenged student voters. We disagree that the special master misapprehended the terms of our referral. When we referred the case to the special master, we expressly foresaw a predicate hearing in order “to make a generalized review and determination of the number of challenges at issue before the court decides to schedule individual voter hearings.” Scolaro, supra, 691 A.2d at 91. We also left it to the special master to “make [a] call in the first instance” on the probativeness of petitioners’ proffered evidence challenging the bona fides of the students’ claimed D.C. residence. See id. at 92. Further, we requested that the special master resolve “whether, under the circumstances, any challenge shall be entertained in addition to those actually made at the precincts.” Id. at 91. The special master followed our guidance and, in light of the applicable presumption and burden of proof, reasonably structured the proceeding so as to provide for individualized hearings and submission of evidence gathered post-election day only in the event that petitioners were first able to hurdle at a predicate hearing, with the evidence they had on election day 1996, the registered students’ presumptive eligibility to vote.

III.

Review of Report of Special Master

Judge Graae’s first determination was that all the challenged student voters had duly registered to vote, thus raising the presumption that they were eligible to vote. Judge Graae found, based on the testimony of Alice McCrory-Miller, Executive Director of the Board, that all the students who voted had been properly registered. He also found, based on the testimony of Board member Valerie Burden, petitioner Patricia Scolaro and Westy Byrd, that the large Georgetown student voter registration in 1996 was due in part to a national campaign to turn out the student vote and in part to a local issue which had galvanized the students: legislation passed during the summer of 1996 restricting their ability to park in Georgetown. These fact findings are both supported by substantial evidence of record and not clearly erroneous. We agree with Judge Graae’s determination that the students were duly registered, which implicitly rejected petitioners’ contention that the challenged students had been misled into registering to vote in the District of Columbia, and that the students were thus presumptively eligible to vote.

Secondly, Judge Graae determined that the Georgetown Student Directory proffered by petitioners as evidence of the students’ non-D.C. residence was “devoid of probative value.” Specifically, Judge Graae relied on the testimony of the Georgetown registrar that the so-called “permanent address” listed on the Directory is supplied by the University from the student admissions application for its “internal purposes to ensure that a student can be reached [through his or her family] when school is not in session ... and is not changed unless the student submits a change-of-address form.” Judge Graae also noted that the information in the 1996 Directory which petitioners had on election day was more than a year out of date by that time. Id. These factual findings meet the standards of review set forth above. Based on these facts, we conclude that whatever probative value the Georgetown Student Directory had concerning the students’ residence was slight indeed, and, in any event, insufficient to overcome'the presumption of the student’s eligibility to vote. In particular we note that the students’ individual sworn voter registration forms completed during the disputed Georgetown Campaign to register students in the spring and fall of 1996 superseded the information from which the 1996 Directory was compiled.

Thirdly, Judge Graae similarly determined that the “freshman list” which, in the words of petitioners, provides out-of-town “permanent addresses” and identifies university housing in the District as “temporary,” “has no more probative value than the ‘permanent address’ listing in the Directory” and thus “does not overcome the presumption of D.C. domicile inherent in a properly signed voter registration form.” Specifically, Judge Graae noted that all freshmen who do not reside with their parents in the Washington metropolitan area are required by university policy to reside in a dormitory. Thus, we agree with Judge Graae’s conclusion that a first-year student’s residence in university housing is not sufficiently probative of the student’s domiciliary intent to overcome the presumption that a duly registered student voter was qualified to vote.

In addition to the two documents that petitioners had on election day in 1996, Judge Graae considered evidence that certain students, upon being asked for identification at the polls, had presented out-of-state driver’s licenses. Judge Graae determined that the driver’s licenses, without more, were not probative of domiciliary intent unless they had been obtained after the student’s registration to vote in the District of Columbia. No record was made by petitioners, who bear the burden of proof, see Scolaro, supra, 691 A.2d at 91, of the details of the student’s out-of-town driver’s licenses on election day. We agree with Judge Graae’s conclusion on this point as well.

We fully agree with Judge Gallagher’s observation that “underlying all aspects of this petition, a delicate balancing of rights is required.” See post at n. 3. As we have already decided, however, that balance is tilted, in the first instance, in favor of the registered voter because, as Judge Gallagher recognizes, “every voter has a right to cast an unquestioned and unintimidated ballot [and][t]here should be a real barrier for a challenger to cross before voters can be brought to court to defend the exercise of their franchise.” Id. Our dissenting colleague does not contend that that barrier was crossed by petitioners, the challengers in this case, but that they were not given a fair opportunity to meet them burden. We do not see how testimony from a sampling of students, not intended to explore their individual domiciliary intent, as proposed by the dissent, would have been more useful to the special master’s task concerning the probative value of the Georgetown Directory proffered by petitioners than the testimony of the Georgetown registrar, who compiled the directory in the first place. See id. at 902. Nor do we understand why the special master should have initiated subpoenas to a random selection of students to query them about the alleged misinformation campaign aimed at Georgetown students to induce them to register to vote, in the absence of any evidence from the petitioners that a single student’s voter registration was, in fact, the product of- a misinformation campaign. See id. at 903. Moreover, petitioners do not contend that they requested that specific students be subpoenaed. The criticism of the special master for failing to subpoena students, therefore, transfers the burden from the petitioners to the special master.

In sum, none of petitioners’ evidence overcomes the student voters’ presumptive eligibility to vote.

IV.

The Fourteen Special Ballots in Petitioner Scolaro’s District

Petitioners argue that the special master’s Report failed to address their complaint that the Board “unlawfully precluded [Scolaro’s] poll watchers from challenging fourteen students who voted by special ballot.” This issue is “critical,” the petitioners contend, “because Mrs. Seolaro had narrowly carried the vote [for District 2E03] through the counting of the ‘machine’ and absentee ballots and only the special ballots reversed the outcome by five votes.” The substance of the challenge is that even assuming these fourteen students who voted by special ballot for ANC District 2E03 were residents of the District of Columbia, them ballots should not have been counted because they either did not reside in that particular ANC District or they were otherwise not properly registered to vote. We would be compelled to remand the case for further findings of fact and conclusions of law if challenges to these fourteen votes were raised by petitioners and ignored by the special master to their prejudice. See Burwell v. Burwell, 700 A.2d 219, 225 (D.C.1997) (concluding that “meaningful appellate review cannot occur” where the trial court failed to address or rule on an issue properly raised by the plaintiff).

Petitioners cite to the hearing transcript to support then* contention that this issue was raised in testimony before the special master, and before this court submit an “Appendix B” which lists the fourteen voters by name along with the “reason for attempted challenge.” Having combed through the record before Judge Graae, we conclude that the challenge to five of the fourteen special student ballots listed on Appendix B was not presented to the special master. Therefore, we do not consider the challenge to these five voters. See Allen, supra, 663 A.2d at 495. With respect to the remaining nine challenged special student ballots which arguably were raised before the special master, the undisputed facts presented indicate that the sole questionable ballot was not counted and, therefore, did not impact the outcome of the election. See D.C.Code § 1-1315(b). Thus, even though the Report does not address the challenge to the special ballots cast in District 2E03, there is no need to remand the issue for consideration by the special master.

We turn first to the individual voters listed on petitioners’ Appendix B presented to this court to determine whether the challenge was first raised before the special master in Exhibit 49. Five of the fourteen names on Appendix B were not listed on Exhibit 49. Two of those five, however, were challenged based upon them “permanent address” listings in the Georgetown University Student Directory (Petitioners’ Exhibit 44). We have already agreed with the special master that the Directory was insufficient to overcome the presumption of a registered voter’s residency in the District of Columbia. Two other names of those five in Appendix B not included in Exhibit 49 were not listed in any other document in the record, and we thus lack the means to determine whether challenges to their votes were raised but ignored by the special master. See Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C.1982) (holding that the appellant bears the burden of convincing this court that the trial court erred, and must meet that burden with “a record sufficient to show affirmatively that error occurred”); see also In re O.M., 565 A.2d 573, 578 n. 11 (D.C.1989) (“Evidence, no matter how relevant or probative, cannot be introduced for the first time at the appellate level.”). The challenge to the last of the five names in Appendix B which was not included in Exhibit 49 before the special master, is based upon a special ballot envelope which is attached to the petitioners’ submission to this court, but lacking any citation to the record below, is similarly unreviewable. See id.

We turn, therefore, to consider petitioners’ challenge to the nine remaining names listed on Appendix B which were included in Exhibit 49 before the special master. Alice McCrory-Miller testified regarding the results of her staffs inquiries into each named challenged voter or category of challenged registrants listed on Exhibit 49 presented to the special master. In the case of each of the nine named voters on petitioners’ Appendix B submitted to this court who were also listed on Exhibit 49, McCrory-Miller testified that the Board had investigated and either verified the validity of the challenged vote, or determined that it had not been counted in arriving at the election result.

The special ballot of one of these voters was found invalid by the Board and not counted. Another of the nine voters was challenged before the special master because her registration was processed before it was signed, but McCrory-Miller testified that the voter had merely changed information provided on a prior valid registration card. Two of the nine voters were challenged before the special master because they “registered at a University post box that should have expired,” but McCrory-Miller testified that the Board had a numbered street address for each of them.

The five remaining voters listed on Appendix B whose challenge was presented to the special master in Exhibit 49 were challenged under the category, “signed registration application in spring, listing a University post box as the DC address.” McCrory-Miller testified that the voters from this list who cast special ballots filled out new voter registration applications at the polls, and that “[t]hey all list Georgetown University as an address and a P.O. Box in some cases.” McCrory-Miller explained that Georgetown University provided the Board with the information necessary to match University post office box numbers to their corresponding dormitory addresses which the Board was then able to place in the correct single member ANC districts.

Counsel for petitioners cross-examined Miller at length about the procedure for challenging the special ballots cast, and questioned her about the sufficiency of a Georgetown University post office box address for the purpose of determining the appropriate single member district. Petitioners proffered no specific evidence disputing McCro-ry-Miller’s testimony regarding any of the individual voters listed on Appendix B, nor any of the categories of challenged registrants listed on Exhibit 49.

Based on the record, we need not decide whether the special master erred in failing expressly to address in his Report the challenges to the special ballots cast by the nine voters listed in Appendix B who were also challenged before the special master in Exhibit 49, see Burwell, supra, 700 A.2d at 225. Any such error is harmless in light of the uncontroverted evidence in the record before the special master that the eight voters whose votes were counted were properly registered in ANC single member district 2E03, and thus, the outcome of the election in Scolaro’s single member district would be unaffected. See D.C.Code § 1-1315(b).

For the reasons stated above, the petition to set aside the elections and to refer the case to the special master for further hearings is

Denied.

GALLAGHER, Senior Judge,

dissenting:

This is a civil rights case, involving the right to vote, that arose in the Georgetown neighborhood of this city which adjoins the Georgetown University campus. At the root of this proceeding is the competition for street ear parking spaces between those in Georgetown homes and the many students with ears living in the area, mostly in the University dormitories.

In this city there are what is known as Advisory Neighborhood Commissions (“ANC”), each being confined to the area of the particular neighborhood. Apparently because of the car parking competition with the home residents, there arose on the Georgetown campus a movement to register students to vote in the local election in order to gain political control of the local ANCs and then gain assistance legislatively on parking requirements in Georgetown. This dispute involves the legal requirement that before one may be entitled to vote in the District of Columbia, in local elections or otherwise, one must be a resident (domiciliary) of the jurisdiction.

In our first review of this petition, we recognized that, as a result of the fundamental importance of the right to vote, and the due process requirements attendant, “when a challenger loses a voter registration challenge before the Precinct Captain and wants a review of that decision, the challenger ... must be afforded an evidentiary hearing unless the issues raised can be disposed of directly by this court as a matter of law....” Scolaro v. District of Columbia Bd. of Elections & Ethics, 691 A.2d 77, 88 (D.C.1997). The court concluded that the record was deficient and we therefore could not dispose of the petition as a matter of law; I joined the original majority in referring this petition to a special master for the purpose of conducting a fact-finding hearing. Id. at 90, 95.

The principal reason the court remanded to a special master for fact-finding instead of to the District of Columbia Board of Elections and Ethics, where remands by this court in voter election proceedings would be expected to go, was the vital reason that the election Agency does not have the statutory power to subpoena witnesses, specifically student witnesses, which the court considered necessary to conduct the fact-finding hearings envisioned here. Id. at 90. The court, therefore, directed that the proceeding be instead remanded to the trial court for appointment of a trial judge as a special master, who would possess full subpoena powers to compel testimony. Id. Unfortunately, on the record now before this court, the special master did not adequately utilize his fact-finding powers, and this court’s effort went almost for naught.

I believe that, as a matter of law, the special master did not sufficiently address the circumstances surrounding the election at issue here, as required by this court’s opinion and petitioners’ due process rights, and I would remand this proceeding to the special master for further fact-finding in order to comply with the instructions in this court’s remand.

I.

In remanding these proceedings to the special master, this court directed that

At every challenge hearing, ... counsel for petitioners, who bear the burden of persuasion, must confront each student voter with evidence that puts the voter’s District of Columbia residence on election day in doubt.

Scolaro, supra, 691 A.2d at 92. The court then noted that petitioners had proffered the 1995-1996 Georgetown University Telephone Directory and a compilation of first-year students, which both listed most students as having “permanent” addresses outside of the District of Columbia, as sufficient to overcome the initial presumption of District of Columbia residency established by a properly executed voter registration form. Id. We gave the trial court discretion to determine whether the proffer was in fact sufficient. Id.

On remand, the special master limited the scope of the hearing to a determination of whether the evidence in petitioners’ possession on Election Day was sufficient to overcome the presumption of regularity. Because the challenges at issue were, for the most part, founded on information taken from the Georgetown student directory and “freshman lists,” the hearing and subsequent report of the special master centered on the probative value of that information. There were, however, two errors in the special master’s approach: (1) the special master did not hear any student testimony in the effort to resolve the issue of whether the directory and freshman compilation were sufficiently probative to overcome the presumption of regularity; and (2) the special master did not adduce student testimony on the potential effects of widespread misinformation regarding voter qualification requirements which was distributed to Georgetown University students prior to the election and could have polluted the election process at issue.

A.

As this court has repeatedly recognized, “Due process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (quoted in Brown v. United States, 682 A.2d 1131, 1139 (D.C.1996)). “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). This due process requirement is especially important when dealing with such a fundamental right in a democracy as the undiluted exercise of a resident’s right to vote. “[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) (quoted in Morrissey, supra, 408 U.S. at 481, 92 S.Ct. 2593); see Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) (right to an undiluted vote is fundamental). Here, the fundamental question for resolution was whether the right to vote of petitioners was diluted illegally, thus resulting in a deprivation of the right to vote by many voters. This is a very serious issue, needless to say.

B.

The first problem for consideration is the special master’s conclusion that the Georgetown directory and the “freshman list” were “devoid of probative value,” (emphasis added) and that they therefore did not “overcome the presumption of D.C. domicile inherent in a properly signed voter registration form.” I believe that, as a matter of law, the special master did not conduct adequate fact-finding to reach those conclusions. I would remand the petition for further hearings, that included testimony by at least a representative sample of the challenged student voters, in order to enable the required fact-finding.

In our original opinion, we noted that “[w]e have not seen th[e] directory or compilation and, absent proper fact-finding, are not in a position to say whether they have the probative value petitioners claim or not,” and we instructed the special master “to make that call in the first instance.” Scolaro, supra, 691 A.2d at 92. But based entirely on the deposition testimony of Georgetown University Registrar John Q. Pierce, the special master determined that “it is clear that no intent can be inferred” from the “permanent address” listing in the Georgetown Directory, and that with regard to the freshman compilation, “the fact of campus residence has no more probative value of intent than the ‘permanent address’ listing in the Directory.” So nothing was “probative,” we are told.

The special master attached considerable weight to Registrar Pierce’s testimony that the directory information was more than a year old, and that the permanent address listings were taken from the student admissions application and were not changed unless the student submitted a change-of-address form. Curiously, the special master also gave much weight to the Registrar’s own conclusion that “this ‘permanent address’ listing is not indicative of the domicile of the student ..., but is an address maintained for the University’s internal purposes to ensure a student can be reached when school is not in session.”

Unfortunately, the special master’s findings are fatally flawed. The issue we left to the special master was whether the directory and freshman compilation were sufficiently probative of the students’ residence to overcome the automatic presumption of regularity created by a properly executed voter registration form. I fail to see why testimony on the University’s policy and procedures for creating and using the directory resolves the issue of whether the directory is probative of the students’ domiciliary intent.

Our instruction to the special master to review the directory and freshman compilation was set in the context of a discussion centered on ensuring that the fact-finding body would have the power to subpoena students, see Scolaro, supra, 691 A.2d at 90-93, and it was implicit in the court’s opinion that the fact-finding on remand would require such student testimony. It necessarily implied that at least a representative sample of students should testify as to their understanding of the “permanent address” listing in the directory. To my thinking, there is no better evidence to establish the probative value of the student directory and freshman compilation than student testimony regarding their intent in listing permanent addresses outside of the District of Columbia, this intent being necessary to determine domicile for voting purposes. It is a student’s intent on domicile not the viewpoint of the University Registrar that controls. As the prior opinion noted, “For an evidentiary hearing on a voter registration challenge to produce adequate fact-finding, the challenged voters must appear.” Id. at 90.

The majority claims that it is confused at how “testimony from a sampling of students, not intended to explore their individual domiciliary intent, ... would have been more useful to the special master’s task ... than the testimony of the Georgetown registrar, who compiled the directory in the first place.” See supra at 897. Their confusion stems, I think, from a misreading of this dissent. I am not proposing that the students testify directly to the probative value of the Georgetown Directory, as the majority seems to imply, but rather that a sampling of students should testify to their individual domiciliary intent, and that their testimony should be incorporated into an analysis of the probative value of the directory. The students are the only witnesses capable of testifying to their own domiciliary intent, and that intent is controlling in this matter.

Also, I think the above-quoted majority language is in direct conflict with the court’s prior opinion on remand. As I have discussed, this case was remanded to a special master in the Superior Court, instead of to the election Agency, so that the fact-finder on remand would have authority to subpoena student testimony. The prior opinion, in no uncertain terms, declared that for the fact-finding hearing to be adequate, “the challenged voters must appear.” Scolaro, supra, 691 A.2d at 90. The majority here, however, appears content to supplant that testimony with the conjectural musings of the University Registrar, who is wholly unqualified to shed fight on the individual domiciliary intent of the challenged student voters.

C.

The second issue for consideration is the lack of student testimony on the issue of potentially disturbing misinformation distributed to Georgetown University students prior to the election. The special master’s concentration on the issue of the probative value of the student directory and freshman compilation was done at the expense of evidence that suggested that the students may have been operating under distributed false information regarding domicile before registering. As a matter of law, I would remand for additional findings that consider the effect of the totality of the circumstances surrounding the election in a determination of whether petitioners’ challenges overcame the presumption, created by a properly executed voter registration form, that the students were qualified to vote in this jurisdiction.

Petitioners’ supplemental brief relates evidence, presented at the hearing, which suggests that Georgetown University students may have been affected in their decision to register to vote by misinformation distributed before the election. Specifically, petitioners note: (1) misleading statements made by the organizers of Campaign Georgetown, the student voter registration drive, in the student newspapers informing students that registering to vote in the District of Columbia “has no effect on your state of residency, vehicle registration, financial aid or driver’s licenses. It means one and only one thing: you can vote in the district on Nov. 5;” and (2) misleading statements made by Campaign Georgetown workers at voter registration tables to the effect that voting in the District of Columbia did not affect residency. The American Civil Liberties Union (“ACLU”), who because of serious concerns about the democratic process in this election commendably submitted a brief and participated in oral arguments as amicus curiae on this appeal, pointedly argued the point before this court:

And as we looked into this, Your Honor, we were able to discover that the leaders of this registration drive [Campaign Georgetown] were in fact emphatically telling students that they should register here in D.C. and that it made no difference if they did that as to where they paid their taxes, where their car should be registered, where their driver’s license should be.... So on election day the challengers had ... very good reason ... for believing that some of these students ... had in fact improperly registered. Not that they were involved in intentional fraud ... [but] because they had been told, and [the] people who told them honestly believed it. They were just wrong.

There is an indication that misleading information may have caused hundreds of students to register to vote under the impression that it would not affect their residency. At the very least, the special master should have examined the effect of the misleading information on the minds of student voters. Again, the testimony of a representative sample of students would be essential to this determination. Because the special master failed to explore and consider the effect of the misinformation, there was not an adequate healing.

The majority’s contention that there is an “absence of any evidence from the petitioners that a single student’s voter registration was, in fact, the product of a misinformation campaign,” see supra at 897, misses the point. Due process requires protections suited to the particular circumstances of a case. See Morrissey, supra, 408 U.S. at 481, 92 S.Ct. 2598. The unique nature of this election, in which hundreds of students suddenly altered their jurisdiction of domicile after receiving misinformation about the effect of the change, requires that this court and the fact-finder on remand provide sufficient due process protection and consideration before determining that the misinformation was constitutionally harmless. In light of the narrow hearing held on remand, it is not surprising that petitioners have not come forward with specific evidence of the effect of the misinformation.

II.

The special master’s restrictive and overly focused report does injustice to the requirement that due process protections must accommodate the peculiar circumstances of cases. See Morrissey, supra, 408 U.S. at 481, 92 S.Ct. 2593. As a matter of law, the special master did not conduct a sufficiently searching review, and I think that the appropriate response by the court should have been a remand for further fact-finding. A review of the integrity of the electoral process in the Nation’s Capital should not be so readily accommodated.

“The ‘right to be heard before being condemned to suffer grievous loss of any kind ... is a principle basic to our society.’ ” Mathews, supra, 424 U.S. at 333, 96 S.Ct. 893 (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)). The negation of a qualified citizen’s vote is a grievous loss, and when multiplied, as here, is a serious community issue. I expected that the claim of such a deprivation would lead to a more intensive review of the circumstances presented here in the electoral process than the proceeding conducted on remand and on review now being accepted as adequate by this court. For that reason, I respectfully dissent. 
      
      . Intervenors Sinderbrand and Fogarty won election as commissioners to Districts 2E03 and 2E05, respectively. Petitioners Scolaro and Jost lost in their quest to be elected commissioners to those districts.
     
      
      . D.C.Code § 1-1315(b) provides:
      Within 7 days after the Board certifies the results of an election, any person who voted in the election may petition the District of Columbia Court of Appeals to review such election. In response'to such a petition, the Court may set aside the results so certified and declare the true results of the election, or void the election in whole or in part. To determine the true results of an election the Court may order a recount or take other appropriate action, whether or not a recount has been conducted or requested pursuant to subsection (a) of this section. The Court shall void an election only for fraud, mistake, the making of expenditures by a candidate, or the willful receipt of contributions in violation of the District of Columbia Campaign Finance Reform and Conflict of Interest Act (D.C.Code § 1-1401 et seq.), or other defect, serious enough to vitiate the election as a fair expression of the will of the registered qualified electors voting therein. If the Court voids an election it may order a special election, which shall be conducted in such manner (comparable to that prescribed for regular elections), and at such time, as the Board shall prescribe. The decision of such Court shall be final and not appealable.
     
      
      . Much of petitioners’ argument before us is devoted to attacking the legal conclusions in Judge Ferren’s first opinion in this case, particularly with respect to the presumption of eligibility to vote created by a sworn voter registration and the burden of proof on petitioner. As we see no reason to disturb these conclusions, we need not decide whether, were it otherwise, we would be precluded from doing so by either the law of the case, see Lenkin v. D.C. Rental Housing Commission, 677 A.2d 46, 48 (D.C.1996), or by M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971).
     
      
      . Some of petitioners’ claims about the student voters’ registration and the 1996 "Campaign Georgetown” student registration drive appear to allege fraudulent activity. In Allen, the court suggested that petitioners who claimed fraud in the election must meet their burden by "clear and convincing evidence.” 663 A.2d at 496. As that issue has not been raised by the parties, and it is unnecessary to our disposition of the petition, we do not address it.
     
      
      . The requirement of real harm before the court will act is a familiar one. Cf. D.C.Code § 11-721(e) (“On the hearing of any appeal in any case, the District of Columbia Court of Appeals shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.”).
     
      
      . There is no question that we review conclusions of law de novo. See Scolaro, supra, 691 A.2d at 90 (citing D.C.Code § 1-1315(b)).
     
      
      . As indicated in Judge Graae’s August 8, 1997 order:
      Based on discussions at the June 12, 1997 status conference, the Court concluded with the apparent agreement of both petitioners and intervenors that the hearing scheduled for August 1, 1997 (subsequently continued to September 3, 1997) would be limited to one threshold issue: whether evidence in petitioner's possession on Election Day was sufficient to overcome the presumption that a person who has signed a D.C. voter registration form is a qualified elector. Petitioners have subsequently filed a memorandum wherein they take issue with the D.C. Court of Appeals’ holdings as to this presumption and the resultant burden of proof placed upon petitioners as challengers, arguing, in effect, that this court, as a Special Master, should ignore or reject the appellate court’s holdings and conduct a full-fledged hearing on their challenges.
      In view of the clear holdings of the D.C. Court of Appeals on the presumption and burden of proof issues, its order of reference, and the strictures of Super. Ct. Civ. R. 53(c), petitioners’ request to go beyond the threshold issue scheduled for hearing on September 3, 1997 must be denied.
      The Court remains persuaded that the threshold issue the parties and the Court agreed upon on June 12, 1997 was correctly framed. Thus, petitioners shall, if they so decide, present evidence on September 3 as to the Georgetown Student Directory, the Freshman List and any other information in their possession on Election Day 1996 that bears on the presumption at issue. If petitioners' evidence overcomes the presumption, further proceedings will be scheduled.
     
      
      . Prior to the hearing, the special master granted petitioners’ request to depose the Georgetown University registrar to question him about the documents petitioners proffered as evidence of the challenged student voters’ residence outside of the District of Columbia. Petitioners were also allowed to discover documents from the Board of Elections and Ethics. Petitioners’ request for a survey addressed to all the challenged students was held in abeyance in light of the imminent end of the school term.
     
      
      . Ms. Byrd was dismissed as a petitioner for lack of standing in our previous opinion. See Scolaro, supra, 691 A.2d at 93.
     
      
      . During our first consideration of this case several organizations dedicated to encouraging students to vote participated as amici curiae: Rock the Vote, United States Public Interest Research Group and the National Student Campaign for Voter Registration.
     
      
      . Apparently, it was the Georgetown ANC that pressed for the legislation. See Scolaro, supra, 691 A.2d at 77.
     
      
      . There is no official "freshman list” compiled by Georgetown University that was presented by petitioners. Apparently, petitioners composed a list, taking information from the Directory, of all registered students living in freshman dormitories in the fall of 1996.
     
      
      . Notwithstanding his order limiting the predicate hearing to evidence the petitioners had on election day, Judge Graae took note of evidence concerning the out-of-town driver’s licenses obtained by petitioners several weeks after the election. The driver’s licenses of intervenors, Fogarty and Sinderbrand, from California and New York, respectively, were both issued at least a year before the election. Petitioners made inquiries of Massachusetts and Maryland authorities to determine the issue dates of the driver’s licenses of some of the challenged student voters who had presented licenses from those states on election day. Massachusetts’ response to petitioners' inquiry about 36 licenses showed that all 36 were issued prior to the 1996 voter registration drive. Maryland’s response showed that two of the 35 licenses as to which inquiry was made were issued after the students registered to vote in D.C. Although Judge Graae opined that this evidence "arguably” would overcome the presumption of voter eligibility, he did not consider it as it was not in the hands of petitioners at the time of their election day challenge. We note that, even if petitioners had had the evidence on election day and it were to be considered in petitioners’ challenge to the election, two votes would not have made a difference in the outcome of the contested elections, which were decided by more than two votes. Thus, the evidence would not form the basis for setting aside the election results or voiding the election. See D.C.Code § 1-1315(b) and discussion in Part I, supra. On this record we see no substance to the charge that the special master considered post-election evidence proffered by the intervenors, but rejected post-election evidence proffered by petitioners.
     
      
      . To this day petitioners have failed to proffer a single piece of evidence, such as a challenged student voter’s affidavit or any of the statutory or regulatory bases we identified earlier, see Scolaro, supra, 691 A.2d at 92, that sheds meaningful light on the issue of the students’ domiciliary intent.
     
      
      . Cf. Scolaro, supra, 691 A.2d at 91 (referring to fact that Seolaro lost the election in ANC District 2E03 "by three votes.”)
     
      
      . Apparently, Judge Graae interpreted this court’s order remanding the case to a special master as limiting his review to the issue of the challenged students’ status as residents of the District of Columbia. This court’s earlier opinion and order of reference to the special master focused on the question of the students’ residence in the District and not on the issue of residency in a particular ANC district or other alleged "irregularities," because that was the thrust of petitioners’ initial submission to this court.
     
      
      . Before the special master, petitioners did not present Appendix B, or separately identify the fourteen challenged voters who are highlighted before this court. Rather, petitioners presented Exhibit 49, which was introduced during the special master's predicate hearing and discussed during the examinations of two witnesses, poll-watcher Barbara Zartman, who compiled the list, and Alice McCrory-Miller, Executive Director of the Board. Exhibit 49 includes a list of thirty-three registrants in District 2E03, about which Scolaro had concerns above and beyond her broad challenge to the students’ D.C. residency.
      Barbara Zartman testified that she prepared Exhibit 49 from voter registration cards made available to her after the contested election, and that she discovered a large number of varied alleged "voting irregularities.” According to Zartman,
      There were voters who signed the voter registration affidavit and dated it after the Board had processed the application. There were incomplete affidavits. There were affidavits that had been signed in the spring for registrations that had not been entered until the fall. There were registrations out of post office boxes. There were registrations out of addresses other than those from which the students voted.
     
      
      . Alvaro Alvarez and Rebecca Brown.
     
      
      . Peter Abrams and Carl Thomas deBoor.
     
      
      . Mary Richardson.
     
      
      . According to Appendix B, the "voter's affirmation puts address in doubt.” The doubt appears to result from a notation and arrows on the special ballot envelope indicating that Richardson entered her old address on the special ballot form where she should have entered her current address and vice-versa. Petitioners do not allege that Ms. Richardson's current address lies outside SMD 2E03.
     
      
      . Nayer Khazeni.
     
      
      . Amy Marie Clarke. On Appendix B filed with this court petitioners also allege that Ms. Clarke’s voter's affirmation is missing her "permanent address” or date of birth. We note that the voter’s affirmation does not request a "permanent address” but refers to an “old address” to be supplied, presumably, where the voter is submitting a change of address.
     
      
      . Kimberly Favata and Michael Heinen. On Appendix B filed with this court petitioners allege that Ms. Favata and Mr. Heinen "registered in another SMD.”
     
      
      . Heather Deese, Tanya Figueroa, Mora Oom-men, Stephen Raborn and Steven D. Kim.
     
      
      . A "qualified elector” is a citizen of the United States:
      (A) Who resides or is domiciled in the District, has maintained his or her residence in the District for at least 30 days preceding the next election, and who does not claim voting residence or right to vote in any state or territory;
      (B) Who is, or will be on the day of the next election, 18 years old; and
      (C) Who is not mentally incompetent as adjudged by a court of competent jurisdiction.
      D.C.Code § 1-1302(2) (1992 Repl. & 1996 Supp.). "Residence” for the purposes of voting is defined as:
      [T]he principal or primary home or place of abode of a person. Principal or primary home or place of abode is that home or place in which the person's habitation is fixed and to which a person, whenever he or she is absent, has the present intention of returning after a departure or absence therefrom, regardless of the duration of the absence.
      D.C.Code § 1-1302(16)(A) (1992 Repl.).
     
      
      . Without repeating the reasons elaborated in my original concurrence and dissent, I again note my serious problem with the voter registration form used in this jurisdiction. See Scolaro, supra, 691 A.2d at 94-96 (Gallagher, J., concurring and dissenting).
     
      
      . There is, underlying all aspects of this petition, a delicate balancing of rights required. On the one hand, a voter's right to cast an undiluted vote is fundamental to American democracy, and we should take the steps required to ensure that no qualified citizen's vote is negated. On the other hand, every voter has a right to cast an unquestioned and unintimidated ballot. There should be a real barrier for a challenger to cross before voters can be brought to court to defend the exercise of their franchise.
      With regard to requiring student testimony on the probative value of the directory and freshman compilation, I think that the two rights remain balanced. This is so because an appropriate hearing would not require student testimony relating directly to voter qualification, but rather testimony regarding the issue of whether the directory and freshman compilation have probative value sufficient to overcome the relevant presumption of regularity.
     
      
      . The striking occurrence that hundreds of students would shift their jurisdiction of domicile immediately before the election at issue here may have been encouraged by the defective voter registration form that, in my mind, literally requires a voter only to swear that he "lives in” the District of Columbia in order to be eligible to vote in this jurisdiction. Unless words have lost their meaning, "living” in a city does not equate with "domicile.” More is required for domicile.
     
      
      . The majority opinion claims that "petitioners do not contend that they requested that students be subpoenaed[,]” and that the "criticism of the special master for failing to subpoena students, therefore, transfers the burden from the petitioners to the special master." See supra at 897. A cursory glance at the record, however, demonstrates that petitioners and amicus curiae have consistently and emphatically pursued student testimony.
      At the beginning of the hearing on remand, counsel for petitioners, in the context of arguing for a broader evidentiary basis for the hearing, noted that
      
        the directive that the Court of Appeals gave, that before each hearing — they were anticipating individual hearings, I think, and that for each one we’d have to come forward with, with respect to that particular individual, with the evidence that we had to put his residence on election day in doubt[.]
      Also, the ACLU brief lodged in this court argues that the special master, by not adducing student testimony, failed to comply with the remand directive of this court. With this record, I can hardly agree with the majority that petitioners have failed to satisfy their burden of requesting that students be subpoenaed.
     