IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WAYNE TURNER, et al.
Plaintiffs,
v.
DISTRICT OF COLUMBIA BOARD
OF ELECTIONS AND ETHICS
Defendant.
CIVIL ACTION 98-2634 (RWR)
BRIEF OF D.C. CHAPTER LEAGUE OF WOMEN VOTERS, D.C. CHAPTER OF THE REPUBLICAN NATIONAL AFRICAN-AMERICAN COUNCIL, D.C. DEMOCRATIC STATE COMMITTEE, D.C. STATEHOOD PARTY, GAY AND LESBIAN ACTIVISTS ALLIANCE, GERTRUDE STEIN DEMOCRATIC CLUB, GREATER WASHINGTON CHAPTER OF AMERICANS FOR DEMOCRATIC ACTION, THE LIBERTARIAN NATIONAL COMMITTEE, INC., AND METROPOLITAN WASHINGTON COUNCIL AFL-CIO, AMICI CURIAE, IN SUPPORT OF PLAINTIFFS’ AND DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT
Introduction
This brief is filed in support of the Plaintiffs’ and the Defendant D.C. Board of Elections and Ethics’ cross motions for summary judgment. The Amici agree with the arguments made by the Plaintiffs and the Defendant, but do not wish to burden the court by repeating them here. Instead Amici seek to draw the attention of the Court to our contention that the actions of the Congress through the Barr Amendment, in prohibiting the D.C. Board of Elections and Ethics from certifying the results of the Initiative 59 balloting, have undermined both the political and legislative processes of the District of Columbia. As a diverse group of organizations representing a variety of political, business, and social interests, the Amici believe that this undermining of the political and legislative processes serves to undermine the integrity of the governmental structure of the District of Columbia. The stability and integrity of the political and legislative processes are of great importance to all the Amici, as those processes are the guarantors of a stable marketplace, a reliable infrastructure, and a vibrant and responsive democracy.
Statements of Interest of Amici
Disclosure Statement of the D.C. Chapter of the League of Women Voters
The D.C. Chapter of the League of Women Voters, as part of the national League of Women Voters, is dedicated to public education regarding the electoral process. The League is a well known publisher of non-partisan voting guides, which serve to provide information to the electorate about the issues and the candidates appearing on the ballot. The efficient and fair functioning of the electoral process is of primary concern to the League. Therefore, we feel strongly that in order to guarantee a free, democratic, and open electoral process, it is important that when votes are cast, either for or against a candidate or in favor or in opposition of a ballot initiative, those votes should be counted and made known to the public. As citizens, District residents are entitled to know the results of balloting with regard to the Initiative 59 measure, and we join in this effort as a friend of the court to advocate for the rights of the citizens of the District.
Disclosure Statement of the D.C. Chapter of the Republican National African-American Council
The District of Columbia Chapter of the Republican National African-American Council (DC-RNAC) is the Washington, D.C., affiliate of the Republican National African-American Council, a grass-roots organization of African-American members of the Republican Party who are dedicated to the promotion of Republican Party principles in the African-American community and the expansion of the Republican Party in the African-American community. With nearly 200 members and supporters, DC-RNAC is active and involved in District of Columbia political and community affairs. As citizens and taxpayers of the District of Columbia, members of DC-RNAC believe that their constitutional rights have been abridged by the action of Congress preventing the District from conducting an election on Initiative 59.
Disclosure Statement of the D.C. Democratic State Committee
The D.C. Democratic State Committee is the official local entity of the Democratic Party in the District of Columbia. Consisting of seventy-two members, the Democratic State Committee is responsible for the coordination of Democratic Party activities in the District, including the nomination of candidates for regular and special elections, including the appointment of candidates to fill out un-expired Democratic seats in the city government. The D.C. Democratic State Committee is very concerned about the integrity of the electoral process in Washington, and as such, is very concerned about the Board of Elections and Ethics’ decision not to release or certify the results of the Initiative 59 ballot. We join in this petition as strong supporters of stable democratic process and an efficient and open system of elections.
Disclosure Statement of the D.C. Statehood Party
The D.C. Statehood Party has been a longtime advocate for Statehood for the District of Columbia, and for greater autonomy and self-government for the people of the District of Columbia. The Statehood Party is gravely concerned about the interference by Congress in the local electoral process of the people of Washington. We stand firmly opposed to the idea that Congress should be able to interfere with the expression of the will of the people of the District whenever that will should run counter to that of the Congress. We believe that the people of the nation’s capital are entitled to conduct their own affairs, free from undue Congressional interference. We believe the rights of District voters have been compromised by Congress’ actions and we join in this amicus effort to correct that wrong.
Disclosure Statement of the Gay and Lesbian Activists Alliance
The Gay and Lesbian Activists’ Alliance’s (GLAA) interest in joining an amicus brief against the Barr Amendment stems from two concerns: Our advocacy, since the early days of the AIDS epidemic, of a comprehensive policy for prevention and treatment of HIV/AIDS; and our strong support for Home Rule in the District of Columbia during the past quarter century. Not only has GLAA endorsed and supported Initiative 59 and its predecessor, Initiative 57, we have used our Elections Project to get candidates for D.C. Council and Mayor to put their positions on this issue in writing, which we have then made available to the public through our world wide web site at http://www.glaa.org. GLAA strongly supports efforts to protect doctors and their patients from prosecution for recommending and using medical marijuana. The following is our statement on the subject from GLAA's policy document, "Agenda: 1998, an election-year guide to gay and lesbian issues in the Nation's Capital."
Disclosure Statement of the Gertrude Stein Democratic Club
The Gertrude Stein Democratic Club of Washington, DC, has been active in promoting the civil rights and equality of lesbians and gay men for over 20 years in our nation's capital. Part of that mission has been to secure funding and advocate for programs for HIV/AIDS treatment, support, and prevention efforts, which has included support for the medical use of marijuana so that people living with HIV/AIDS can more effectively retain body weight, which is critically important to staying alive with the disease. Being concerned with civil rights and equality for lesbians and gay men also means that we are concerned with equal treatment before the law and this includes the rights to equal treatment of the initiatives placed before the initiative process. We are concerned that where the process is allowed to fail for some, it is in danger of failing for all.
Disclosure Statement of the Greater Washington Chapter of Americans for Democratic Action
The Greater Washington Chapter of Americans for Democratic Action is a citizen’s rights organization seeking to protect the interests of those members of the community whose voice is often left unheard. We endorsed the passage of the Initiative when it was on the ballot as an expression of individual autonomy. We see the Barr Amendment as an invasion of our civil rights and our free speech rights. Furthermore, given the fact that the District is unrepresented in the Congress, the fact that members of Congress would take it upon themselves to decide what was best for the citizens of the District without taking into account the wishes of the District electorate, strikes us as extremely unfair and undemocratic at best, and unconstitutional at worst. We join in petitioning this court to rectify this violation of the rights of the hard working citizens of the District of Columbia.
Disclosure Statement of the Libertarian National Committee, Inc.
The Libertarian Party is a recognized, nationally organized political party, dedicated to the principles of limited government, personal responsibility, and individual liberty. The Libertarian Party's interests in this case are best summarized by the following statements from its current National Platform. In the plank on Health Care, the Libertarian
Party states, "Recognizing the individual's right to self-medication, we seek the elimination of all government restrictions on the right of individuals to pursue alternative forms of health care." Initiative 59, which appeared on the November 3, 1998 ballot, proposed to guarantee the right of "seriously ill individuals to obtain and use marijuana for
medical purposes." In the plank on Election Laws, the Libertarian Party states, "We hold that no state has an interest to protect in this area except for the fair and efficient conduct of elections." By failing to release the vote totals for Initiative 59 the D.C. Board of Elections, under pressure from Congress, has failed in its duty to conduct fair elections. The Libertarian Party boldly stands for the right of individuals to make their own health-care decisions, and for the right of the voters in the District of Columbia to be heard on this issue.
Disclosure Statement of the Metropolitan Washington Council AFL-CIO
The Metropolitan Washington Council, AFL-CIO is an umbrella organization for 175 local unions in the metropolitan area representing over 200,000 working men and women in the public and private business sector. The Council opposes the Board of Elections and Ethics’ actions in keeping the results of the ballot secret. We support open and fair elections, the right of the people to vote for candidates and initiatives of their choice, and the freedom of expression for the citizens of the District of Columbia. We believe that open and fair government makes for a good government, and one that will best protect the interests of the workers of the District of Columbia.
ARGUMENT
I. Congress has through its actions undermined the integrity of the political process
A. There is a protectable interest of the District and of its people in the integrity of the political process.
The stability and predictability of the political process is one of the cornerstones of our Republic. It is an essential part of the governance structure of the nation and is a prime element in the stability and strength of our society. Further, as the experience of many nations around the world demonstrates, political stability and economic and social stability go hand in hand; disruption of either one can lead to instability in the other. Investment, trade, and commerce flourish in those nations where the rules are well known and the system can be counted on for consistency, equanimity and stability. It was the stability of the Republican model that was touted as among its greatest virtues by those who founded the Republic. See generally, The Federalist No. 10 (James Madison).
Indeed, the integrity of the political process has long been recognized by the courts as being a compelling interest of states and their citizen which states can protect. States have a strong interest in the stability of their political systems. Timmons v. Twin Cities Area New Party, ___ U.S. ___, 137 L.Ed.2d 589, 603 (1997), see also Eu v. San Francisco Democratic Com., 489 U.S. 214, 228, 103 L.Ed.2d. 271, 284, 109 S.Ct. 1013 (1989) (Maintaining a stable political system is, “unquestionably” a compelling state interest).
B. The right to vote and to participate in the electoral process is a fundamental right.
The political system is not just an arbitrary construct through which the public establishes policy. Rather, it is the very mechanism through which the public exercises its most fundamental right: the right to vote. “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.” Wesberry v. Sanders, 376 U.S. 1, 17, 11 L.Ed.2d 481, 84 S.Ct. 526 (1964). See, also, Burdick v. Takushi, 504 U.S. 428, 433, 119 L.Ed.2d 245, 252, 112 S.Ct. 2059 (1992) (citing Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 59 L.Ed.2d 230, 99 S.Ct. 983 (1979)) (Voting is of the most fundamental significance under our constitutional structure). Participation in the electoral process, then, is not a privilege, or a formality, it is a fundamental piece of our democratic republic.
C. Ballot initiatives are a protected element and fundamental right of the democratic process.
The fundamental importance of the right to participate in the electoral process is not limited to the right to vote for the candidate of one’s choice. In those states or jurisdictions where initiative or referendum processes have been established, the initiative process has been recognized to be a “basic instrument of democratic government,” City of East Lake v. Forest City Enterprises, Inc., 426 U.S. 668, 679, 49 L.Ed.2d 132, 141, 96 S.Ct. 2358 (1976). See, also, Meyer v. Grant, 486 U.S. 414, 100 L.Ed.2d 425, 108 S.Ct. 1886 (1988). Thus, any interference with the balloting or initiative process in such jurisdictions must be viewed as gravely as the interference with the process of electing candidates for public office.
D. The right to participate in the electoral process is not only an abstract right.
The right to vote, though fundamental, is not a right that exists in a vacuum. “The abstract right to vote means little unless the right becomes a reality at the polling place on election day.” Perkins v. Matthews, 400 U.S. 379, 387, 91 S.Ct. 431, 436, 27 L.Ed.2d 476, 484. The accessibility, prominence, facilities, and prior notice of the polling place’s location all have an effect on a person’s ability to exercise his franchise. Id. See also, Garcia v. Guerra, 744 F.2d 1159, 1164 (5th Cir., 1984) (The right to vote is abridged if a person is effectively prevented from exercising that right because he or she does not have prior notice that an election is to take place).
These cases make it clear that it is not merely enough to be able to claim the lawful ability to exercise the voting franchise, one must be able to exercise that franchise in fact, and meaningfully. See, Gollin v. D.C. Board of Elections and Ethics, 359 A.2d 590, 596 (D.C. App. 1976). The “right” must indeed become a “reality” or the right has been lost. See Perkins, supra. The abstract right to participate in the political process is not participation in the political process.
E. Abridgment of meaningful participation in the initiative process undermines the integrity of the democratic process
“[T]he right to vote is the right to participate in an electoral process that is necessarily structured to maintain the integrity of the democratic system.” Burdick v. Takushi, 504 U.S. 428, 441, 119 L.Ed.2d 245, 258, 112 S.Ct. 2059 (1992). Elections ensure the integrity of our democracy. Where the integrity of the electoral process is assailed, the integrity of our democratic system is harmed as well.
As the Perkins case demonstrated supra, the right to vote must be real, not illusory. By effectively nullifying the results of the election before the election took place, Congress took away the “reality” of the votes of District citizens. In effect, it made their going to the polls a farce, since their votes would not, and could not, have any effect. As City of East Lake, supra, indicates, the right to vote on a referendum or initiative issue is as protected as the right to vote for a certain candidate. Congress, then, can no more direct that the results of an initiative ballot have no meaning, than it could that the votes for Mayor of the District of Columbia should not be counted. To do either is to impermissibly abridge the right to vote of the people of the District of Columbia, and to undermine the integrity of the very political process itself.
II. Congress’ actions have undermined the integrity of the legislative process.
A. In preventing the certification of the votes cast on the Initiative, Congress acted outside its lawful authority.
1. Under DC law, citizens of the District have the right to enact legislation by initiative
The right to an initiative process is enshrined in the District of Columbia Self-Governance and Reorganization Act of 1974 (The “Home Rule Act”) Pub. L. No. 93-198, 87 Stat. 744, D.C. Code § 1-201, et seq., as amended by the Charter Amendments Act, D.C. Code § 1-281 to -195 (Repl. Vol.) [See Footnote 1]
2. The citizens of the District had a legitimate expectation that Initiative 59 would be subject to approval per the provisions of the Home Rule Act.
In order to qualify for placement on the ballot, the Board of Elections must find that a proposed initiative is a “proper subject of initiative.” D.C. Code § 1-1320(b)(1). To effectuate the initiative, a petition to the District of Columbia Board of Elections and Ethics containing the signatures of registered qualified electors equal in number to 5 percent of the registered electors in the District of Columbia is required, and the total signatures submitted must also include 5 percent of the registered electors in each of 5 or more of the City's wards. D.C. Code § 1-282. After the election, the Board of Elections and Ethics must certify the results of the vote. D.C. Code § 1-285, see, generally, State ex rel. White v. Franklin County Bd. of Elections, 598 N.E.2d 1152, rel. proc. 600 N.E.2d. 656 (The board or other body overseeing the elections has a duty to count all ballots cast and to certify the results for a candidate). If the measure has been approved by a majority of the District voters, the initiative becomes “an act of the Council.” D.C. Code § 1-285. In order to become law, the initiative must still withstand the 30 legislative day period of Congressional review. D.C. Code §§ 1-233, 1-1320(r)(1).
The organizers of the Initiative 59 drive were successful in getting the required number of signatures for their ballot initiative, and the Board of Elections and Ethics placed the initiative on the ballot. The issue was debated in public and was supported and opposed by different advocacy groups. District voters went to the polls on November 3, 1998 to vote, among other things, on an initiative. Those voters had a legitimate expectation that the results of the election would be counted and that if the initiative should pass, and survive the subsequent 30-day Congressional review period, it would become the law of the District of Columbia.
3. Congress acted outside its authority in an attempt to legislate on the matter covered by the initiative.
Congress has the Constitutional authority to legislate exclusively for the District of Columbia. U.S. Const. Art. 1, § 8. Thus Congress may directly enact legislation applicable to the District on any constitutionally permissible matter. The right to enact legislation for the District is not derogated by the Home Rule Act. D.C. Code §1-206. In addition, Congress retains the right to review all District legislation, whether originating with the Council or by initiative, for a 30 legislative day period. D.C. Code § 1-233. [See Footnote 2]
Congress did not choose to enact legislation to re-criminalize marijuana in all cases. In fact, it enacted no substantive measures of its own, opting instead to enact an appropriations rider. Congress did not take advantage of the 30 day review period it is afforded under the Home Rule Act. It did not even wait until the results of the election had become known, to take action. Of all the actions Congress could have legitimately taken, it took the one action which undermined the Home Rule Act and the District’s legislative and political process the most. In so doing, it acted in blatant disregard for the laws it had passed and out of contempt for the integrity of the electoral and political processes of the District of Columbia.
By so doing, Congress has undermined the legislative process of the District of Columbia. It did not amend the legislative process in the District—it interfered with it. As a result, the citizens of the District have suffered a blow to the integrity of their legislative processes. They rightly expect that an initiative which has been duly qualified, placed on the ballot, debated, and voted upon, and approved by a majority of the electorate, will become the law of the District unless vetoed by Congress. Due to Congress’ illegal actions, the reasonable expectations of the citizens of the District cannot come to pass. In effect, the predictability and legitimacy with which their system has operated has been seriously undermined.
4. Initiatives and referenda are akin to statutory enactments
Statutes enacted as initiative measures enjoy the same presumption of validity and legality as do statutes enacted in the usual way. 16 Am. Jur.2d. § 137. In the District of Columbia, an act approved by the voters is deemed, upon certification of the vote, an act approved by the Council. D.C. Code § 1-285. This identity of act of Council and act of initiative has been used to uphold the power of the Council to repeal or amend law adopted by the initiative process. Atchison v. District of Columbia, 585 A.2d 150, 154-155 (D.C. Ct. App. 1991).
Notwithstanding the equivalence with which laws enacted by initiative and laws enacted by the legislature are treated, it has been generally held that the right of the voters to pass upon a ballot measure cannot be abridged by legislative action before the election. See, e.g., The Opinion of Justices, 174 A. 853 (Me., YEAR). With regard to the Congress’ legislative relationship to the District, it has been held that “Congress’ plenary power over the District of Columbia means no more than that it is akin to a state legislature, and not that the government thereof is not legislative in character.” McClough v. United States, 520 A.2d 285, 288 (D.C.App., 1987). Therefore, Congress, even acting as a state legislature for the District, cannot abridge the right of the voters to pass on an initiative prior to the election.
By prohibiting the District of Columbia Board of Elections and Ethics from certifying the results of the election with regard to Initiative 59, prior to the election, the Congress effectively abridged the right of the people of the District of Columbia to pass on the initiative prior to their opportunity to express their wishes at the polls. By this, the Congress has not only acted beyond the scope of the procedures it outlined for itself in the Home Rule Act, but it has also violated the general rule regarding legislative interference with the initiative process prior to balloting.
III. Congress’ interference with the political process and the legislative process undermines the social, political, and economic stability of the District and is a wrong which must be redressed.
Congress’ actions via the Barr Amendment have had a damaging effect both on the political process and the legislative process of the District of Columbia. By preventing the counting and certification of the votes cast in favor of Initiative 59, the Congress has effectively abridged the right of the people to vote upon the issue, and thus has undermined the integrity, stability, and predictability of the electoral process. Further, by interfering with the legally established procedures for approving or rejecting an initiative measure, Congress has undermined the integrity, stability, and predictability of the legislative process as well.
The Amici feel very strongly that the undermining of both the political and legislative processes in the District will have a deleterious effect on the quality of life in the District of Columbia, on the integrity and stability that Amici rely upon in the course of their activities in the District, and finally, upon the democratic institutions of the District itself.
CONCLUSION
For the reasons stated above and in the briefs filed by the plaintiffs and the defendant, summary judgment should be entered for the plaintiffs.
Respectfully submitted,
Mark A. Schaefer (DC Bar #448809)MIREL & ALEGI
1614 20th Street, N.W.
Washington, D.C. 20009
Telephone: (202) 265-8017
Counsel for Amici Curiae
Footnote 1. The Charter Amendments Act granted District electors the rights of initiative, referendum, and recall. The Act required the Council to pass implementing legislation which it did on June 7, 1979, by enacting the Initiative Procedures Act. D.C. Law 3-1, 25 DCR 9454, D.C. CODE § 1-1320 to -1331 (1992 Repl. Vol.)
Footnote 2. Criminal laws are subject to a 60-legislative day review. D.C. Code § 1-233(c)(2)
