concurring:
Although I agree with the result reached by the majority and with much that Judge King has written, I am unable to join that part of the analysis which appears to make the result hinge on the “plain meaning” of “candidate,” as that word is used in D.C.Code § 1-258 (1992). According to the majority, the word “candidate” plainly means the individual receiving the most votes, regardless of whether or not he or she is qualified to take office. According to the Board, on the other hand, § 1-258 must be read in conjunction with § 1-256(a)(1)(A), which defines the qualifications of ANC Commissioners, and thus excludes Ms. Noroozi. I suppose plainness, like beauty, is in the eye of the beholder. In my opinion, the legislature’s use of the word “candidate” does not, and was not intended to, resolve the issue before us. The meaning of that term, in other words, is not plain with respect to the issue presented here.
Nevertheless, I agree with my colleagues that Mr. Espenschied could not properly be declared the winner of an election in which he was trounced. The Board adopted the theory that where the person with the most votes is disqualified, the candidate with the second highest number of votes is deemed elected. This theory recognizes no logical limiting principle, and thus inexorably leads to undemocratic and unacceptable results which the legislature could never have intended.
Mr. Espenschied, the incumbent, received 38% of the votes. Ms. Noroozi received 59.2%. A logical headline announcing the Board’s resolution of this controversy is “THE LOSER WINS!” Moreover, suppose that following a bitter campaign based on major ideological differences, 99% of the voters had cast their ballots for Ms. Noroo-zi and only 1% for Mr. Espenschied. Under the Board’s approach, Mr. Espenschied would still have become an ANC Commissioner. Surely common sense warns us to hesitate a little before reaching such a result.
On May 24, 1893 — almost exactly a century ago, in a case that appears on the first page of the first District of Columbia Reporter — Justice Shepard wrote for the court that
[wjhile it is not within the judicial power, by construction, to cure defects which may render laws unjust or even oppressive, if they clearly exist; yet no statute should be so construed as to render it unreasonable, or unjust in its operation, if there be room for construction at all.
Bush v. District of Columbia, 1 App.D.C. 1, 8 (1893); see also Wright v. United States, 315 A.2d 839, 841 (D.C.1974), in which we stated, not so very surprisingly, that “absurdity is a result courts should view with disfavor.” Accord, United States v. Katz, 271 U.S. 354, 357, 46 S.Ct. 513, 514, 70 L.Ed. 986 (1926).
I do not question our obligation to show a reasonable measure of deference to the Board’s interpretation. As the court explained in Darling v. Bowen, 878 F.2d 1069 (8th Cir.1989), cert. denied, 494 U.S. 1066, 110 S.Ct. 1782, 108 L.Ed.2d 783 (1990), however,
[wjhile we accept as a general principle the appellants’ claim that the courts must defer to an agency’s construction of a statute it administers, we are also mindful that in interpreting a statute an agency and the court must avoid absurd results....
878 F.2d at 1075-76. As the majority points out, the Board’s disposition of this case is in disharmony with the “American rule,” which is followed by the overwhelming majority of courts in this country.
This case is not about widgets. It is not even about money. It is about the right to vote for the candidate of one’s choice (or, perhaps, the right to vote against a particular candidate). More than a hundred years ago, the Supreme Court characterized the franchise as “a fundamental right, because preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886); see also Reyn*897olds v. Sims, 377 U.S. 533, 554-55, 84 S.Ct. 1362, 1377-78, 12 L.Ed.2d 506 (1964); Harvey v. District of Columbia Bd. of Elections, 581 A.2d 757, 758 n. 3 (D.C.1990), rehearing denied, 584 A.2d 55 (D.C.1991). To frustrate the apparent will of the voters is a very serious matter.
Where, as here, three electors have voted against an incumbent for every two who voted for him, a designation of that incumbent as the winner compromises the integrity of the franchise. I am confident that the legislature did not intend that the statute be construed in such a manner.