UNITED STATES DISTRICT
FOR THE DISTRICT OF COLUMBIA
WAYNE TURNER, et al., Civil Action No. 98-2634 (RWR)
v. Sept 17 1999
NANCY MAYER WHITTINGTON, CLERK
D.C. BOARD OF ELECTIONS AND ETHICS, U.S. DISTRICT COURT
UNITED STATES OF AMERICA,
Plaintiffs, five registered District of Columbia voters
and a committee of such voters, and the defendant, the District
or Columbia Board of Elections and Ethics ("the Board"),
seek a declaratory judgment that Sec. 171 of Congress's 1998 District
of Columbia Appropriations Act (the "Barr Amendment")
is unconstitutional if it bars the Board from counting, releasing,
and certifying the results of the November 3, l998 D. C. referendum
known as initiative 59. The Unified States intervenor defending
the constitutionality of the Barr Amendment, claiming that it
bars certifying but not counting and announcing the election results.
The Court held a consolidated hearing on the merits of plaintiffs'
motion for a preliminary injunction and on
the parties' cross motions for summary judgment. Because the
Court holds that the Barr Amendment does not preclude the Board
from counting, announcing or certifying the results of the referendum
on Initiative 59, the Board may release and certify them and the
Court need not reach the constitutional question.
On September 17, 1998, the Board certified a ballot initiative
entitled Initiative 59 as proper for placement on the ballot for
the November 1998 District of Columbia elections after the measure
garnered the requisite support through signatures. (Def.'s Mem.
Summ. J., Attmts. Ex. 2, Miller Decl. at 4 ("Miller Decl.".)
Initiative 59, known as the Medical Marijuana Initiative, was
designed, in part, to allow chronically ill individuals to use
marijuana without violating criminal provisions of the D.C. Code.
(Def.'s Mem. Supp. Summ. J. at 2-3 ("Def.'s Mem.").)
Attmts.' Initiative 59 states in part:
Sec. 1 All seriously ill individuals have the right to obtain
and use marijuana for medical purposes when a licensed physician
has found the use of marijuana to be medically necessary. . .
Sec. 2 Medical patients who use, and their primary caregivers
who obtain for such patients, marijuana for medical purposes
upon the recommendation of a licensed physician do no[t] violate
the District of Columbia Uniform Controlled Substances Act of
(Def.'s Mem., Attmts., Ex. 3.)
On October 21, 1998, Congress enacted the Barr Amendment
as part of the District of Columbia Appropriations Act. Omnibus
Consolidated Appropriations Bill of 1998, Pub. L. No. 105-277,
112 Stat. 2681-150 (1998) The Barr Amendment provides that:
None of the funds contained in [the District of Columbia Appropriations
Act] may be used to conduct any ballot initiative which seeks
to legalize or otherwise reduce penalties associated with the
possession, use, or distribution of any schedule I subs substance
under the Controlled Substances Act . . . or any tetrahydrocannabinols
Id, Because Initiative 59 attempts to reduce penalties
for some use and possession of marijuana, it falls under the purview
of the Barr Amendment.
On November 3, 1998, residents of the District of Columbia
voted on Initiative 59 since it had been printed on the ballots
prior to passage of the Barr Amendment. (Def.'s Mem. at 8.) The
Board has not released the results of the vote on initiative 59,
however, for fear of violating the Barr Amendment.
Interpreting the Barr Amendment
The text of the Barr Amendment prevents the Board from
using funds to "conduct any ballot initiative" regarding
any measure designed to lesser penalties for drug possession,
use, or distribution. The question, then) is, whether counting,
releasing, and certifying the results of the election is part
of conducting a ballot initiative.
The plaintiffs argue in their motion for summary judgment
that the Amendment should apply to the activity that takes place
only up to and including election day but not any of the duties
required of the Board after election day. (Pls.' Mem. Supp. Summ.
J. at 18 ("Pls.' Mem.").) This election, they argue,
was conducted and concluded on November 3, 1998. According to
the plaintiffs, the plain a language of the Barr Amendment should
not prevent release and certification of the election results
because those activities are not part of the conduct of a ballot
The United States agrees with this interpretation to a
point. 1/ It argues that the Barr Amendment does not prevent the
Board from counting and releasing the election results in this
case. (Tr. Motions Hr'g at 50; Intervenor's Mem. Supp. Summ. J.
at 24 ("Int.'s Mem.").) The United States maintains
that the Barr Amendment prohibits only certification of the results.
(Id.) Certification would make the language of a winning
1/ The parties in this case are oddly configured.
The plaintiffs and the defendant are united in their argument
That the Barr Amendment is unconstitutional while the intervenor
argues in favor or the Amendment's constitutionality. As is discussed
below, the difference of opinion between the plaintiffs and the
defendant seems to be their construction of the Barr Amendment
and whether it allows the elect on results to be released.
initiative become law unless Congress disapproved it within
30 days. See D.C. Code Ann. §§ 1-233, 1-285 (1981).
The United States draws this conclusion not from a plain reading
of the amendment's text, but rather from the supposition that
Congress did not want Initiative 59 to become law at all. (Tr.
Motions Hr'g at 50; Int.'s Mem. at 2, 10, 19, 23.)
The lone litigant who has not addressed the meaning of
"conduct any ballot initiative" is the Board. However,
in its motion for summary judgment and attachments, the Board
describes what is required in order for it to count, release,
and certify the result of last fall's election. To count and release
the result of the election on Initiative 59, a member of the Board,
or its staff, would have to request the count from the computer
on those ballots that were tabulated by computer. (Miller Dec'.
at 7 . ) The expenditure would be "minimal." (Id. at
8) The Board may also have to hand count some votes, which also
involves minimal expenditure. (Def.'s Stmt. of Material Facts
Not in Genuine D Dispute at 5.) To certify the vote, the Board
would have to convene a meeting at which the result of the election
would be recorded on a certification form and adopted by the Board.
(Miller Decl. at 8. ) The costs of these actions would also be
minimal. (Id.) Certification is mainly a ministerial task
which would take no longer than five minutes. (Id.) Based
on this recitation, and the fact that the Board has not taken
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actions, it seems apparent that the Board views any expenditure
on initiative 53 -- whether before, during or after the election
-- as violating the Barr Amendment.
The Barr Amendment. itself provides no guidance on exactly
what "conduct any ballot initiative" is meant to entail.
The sparse legislative history offers scant clarification. 144
Cong. Rec. H73883 3 (daily ed. Aug. 6, 1998). The plaintiffs'
argument that the Board's activities after election day are excluded
finds support, however, in the D.C. Code section describing the
Board of Elections' responsibilities in D.C. elections. The D.C.
Code directs the Board to, among other things, "(3) Conduct
elections; (4) Provide for recording and counting votes by means
of ballets or machines or both; [and] . . . (11) Certify . . .
the results of elections." C.C. Code Ann. § l- 1306
(1981). By listing these tasks separately, the D C. Code implies
that each is a distinct responsibility, and that conducting an
election does not encompass counting or certifying the vote.
A plain language reading of the Barr Amendment does little
to undercut the plaintffs' position. It also offers little support
for the position on that the Barr Amendment prevents certifying
the results of this election but not counting or releasing the
results, as the United States argues. There are two possible constructions
of the phrase "conduct any ballot "initiative"
in this context. It could entail the entire process
of the election, from the moment an Initiative is proposed
for the ballot until the results are certified to Congress. Alternatively,
it could mean merely managing election activity on the day of
the election. There is no reason to distinguish between counting,
release and certification when defining this phrase. All of these
tasks are ministerial. All involve minimal expenditure. All occur
after the voting is over.
Courts must accord acts of Congress the presumption of
constitutionality. See e.g., Rust v. Sullivan,
500 U. S. 173, 190-31 (1991). Where at all possible, courts are
required to construe Congressional legislation in a way that avoids
constitutional infirmities. Id. The original parties in
this case argue that if the Barr Amendment prohibits counting,
releasing and certifying these election results, then it violates
the constitutional rights of freedom of expression and equal protection.
With "conduct any ballot Initiative" interpreted as
referring only to conducting election day affairs, the Boar-d
would be allowed to count, release and certify the vote on Initiative
59. The constitutional claims would not be reached. Because a
plain reading of the amendment supports this interpretation, and
because the opposite interpretation is constitutionally infirm
for the reasons discussed below, the Court holds that the phrase
"conduct any ballot initiative" in the Barr Amendment
does not prevent the District of Columbia
Board of Elections and Ethics from counting, releasing and
certifying the vote on Initiative 59 taken on November 3, 1998
Congress's Power over the District of Columbia
Constitutional issues would be implicated if the Barr Amendment
precluded the Board from announcing and certifying the election
results. One question, though, is whether Congress's unique relationship
to the District creates a different analytical context in which
to consider the alleged burden on -First Amendment rights. It
may be that because Congress has the power to withdraw the ballot
initiative process from D.C. voters in its entirety, Congress
could therefore take the lesser step of withdrawing particular
kinds of ballot initiatives from D.C. voters.
That is not the question to be decided in this case, however.
The issue here is not whether the Barr Amendment is constitutional
as applied to a proposed initiative that was kept off the ballot.
In this case, D.C. voters were properly given the opportunity
to vote on a ballot initiative and did so. The
2/ This conclusion does not necessarily render the
Barr Amendment meaningless. For example, from the day the amendment
was enacted up through the election day, the amendment precluded
other initiative-related expenditures such as "publicity
surrounding that ballot." 144 Cong. Rec. H7389 (daily ed.
Aug. 6, 1998) Statement or Rep. Barr).
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issue here is whether Congress's plenary power over the District
of Columbia encompasses the power to prevent political speech,
in the form of the results of votes proper y cast in a properly
conducted ballot referendum, from being made public. to that question
must be no.
Congress' s power over the District is granted my the Constitution
and is very broad. Congress may exercise exclusive legislation
in all Cases whatsoever, over such District . . . as may . . .
become me Seat of the Government of the United States." U.S.
Const. art. I § 8 (the "D.C. Clause"). That clause
has been Interpreted to grant plenary power to Congress over the
District of Columbia. See Palmore v. United States, 411
U.S. 389, 397 (1973). Congress acts as a local legislative body
for D.C. Id. Home Rule and other subsequent legislation
have allowed District residents some measure of governmental power.
See D.C Code Ann. §§ 1-201 to 299 (1981). Even after
the passage of Home Rule, however, Congress retains broad authority
to pass local laws on any subject. See D.C. Code Ann. § 1-206
(1981). Thus, this Court is mindful of Congress's broad legislative
powers over the District, as granted by the D.C. Clause.
The D.C. Clause may not be read in isolation from the rest
of the Constitution, however, any more than any other constitutional
clause may be read alone. In this area, as in all
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others, Congress's actions are constrained by the Constitution
itself, as the Supreme Court has explained. See Palmore,
411 U.S. at 397 ("Congress 'may exercise within the District
all legislative powers that the legislature of a state might exercise
within the Stare . . . so long as it does not contravene any provision
of the constitution of the United States'" (quoting Capital
Traction v. Hof, 174 U.S. 1, 5 (1899))) (emphasis added))
cf. Grant v. Meyer, 828 F.2d 1446, 1456 (10th Cir.
1987) (having granted citizens the right of an initiative procedure,
the State was obligated to confer the right in a manner consistent
with the Constitution), aff'd, 486 U.S. 414 '1988).
It is no surprise that Congress is so limited. In other
areas where the Constitution grants Congress virtually total control
over legislation, the Constitution always prescribes the boundaries
of its abilities. See New York v United States, 505 U.S. 144,
166 (1992) (finding limits upon the kind of legislation that Congress
constitutionally may pass under the Commerce Clause); accord Printz
v United States, 521 U.S. 898, 923-24 (1997), (finding the
Commerce Clause in combination with the Necessary and Proper Clause
as _insufficient sources of power for Congress to force local
law enforcement agencies to take part in federal laws on background
checks for gun sales. The Supreme Court has also found, similarly,
that the power to regulate federal elections was modified by Congress's
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to interfere with First Amendment rights. See Buckley v.
Valeo, 424 U.S. 1, 13-20 (1976). Indeed, the very idea of
judicial review is premised on the idea that the courts exist,
in part, in order to ensure that Congress does not overstep the
lines described by the Constitution. See Marbry v. Madison,
5 U.S. (1 Cranch) 137, 180 (1803) (stating that "law is repugnant
to the Constitution is void").
Congress's acts controlling The District are no exception
to that fundamental rule. See Palmore, 421 U.S. at 397.
Congress's laws for the District must pass constitutional muster
as much as any other Congressional enactment must. Congress's
power over the District therefore does not exempt the Barr Amendment
from First Amendment review.
The First Amendment
The Barr Amendment purports to restrict activity that involves
voting by D.C citizens. The vote has long been considered the
crux of the democratic system.. See Williams v. Rhodes, 393 U,S.
23, 31, (1968) (describing the right to vote as among the "more
precious in a free country" (quoting Wesberry v. Sanders,
376 U.S. 1, 17 (1964) ))) . The right to speak to our governing
bodies, through the vote, ensures our nation's ability to function
as a democracy, with legislatures responsive to thei-r voting
constituents. See id. ("'Other rights, even the most basic,
are illusory if the right to vote is undermined'"); see
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also Illinois State Bd. of Elections v. Socialist Workers
Party, 440 U.S. 173, 184 (1979) (stating that "voting
is of the most fundamental significance under our constitutional
The right to vote has been most powerfully raised in Equal
Protection claims where burdened parties sought relief from the
inability to cast their votes ''effectively." See Socialist
Workers, 440 U.S. at 164. When the right to vote is raised In
the context of the First Amendment, it gives rise to layered standards
of review. See Burdick v. Takushi, 504 U.S. 428, 433-34
(1992) (stating that "the rigorousness of our inquiry into
the propriety of a state election law depends upon the extent
to which a challenged regulation burdens First and Fourteenth
Amendment rights"). Debates about the standard of review,
however, only reinforce the idea that the results of votes properly
cast in a properly conducted ballot referendum are due some level
of First Amendment protection.
Symbolic speech is accorded constitutional protection.
The First Amendment shields a symbolic act if it has sufficient
communicative power such that it "'inten[ds] to convey a
particularized message . . . and . . . the likelihood was great
that the message could be understood.'" See Texas v. Johnson,
491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S.
405, 420-11 (1974)). This principle has protected a variety of
acts. See Texas v. Johnson, 491 U.S. at 406 (holding that
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burning a flag is protected by the First Amendment); Tinker
v. Des Moines Indep. Community Sch. Dist., 393 U.S. S03, 514
(1969) (holding that wearing black armbands to protest the war
in Viet Nam was protected under the First Amendment).
When a citizen steps into the voting booth to cast a vote
on a matter properly on the ballot, he or she intends to send
a message in support of or in opposition to the candidate or ballot
measure at issue See Socialist Workers Party, 440
U.S. at 184 (describing limits on ballot access as "impair[ing]
the voter's ability to express their political preferences")
(emphasis added). The message of the vote is received when the
election results are released thereby completing an important
communication by the public to the government. Through election
voting, the public affects public governance by determining who
holds office or which referenda properly before the voters will
or will not become law. See Burdick, 504 U.S. at
438 (stating that "the function of the electoral process
is to 'winnow out and finally reject all but the chosen candidates'")
(citation committed). 3/ Because voters in properly conducted
3/ The Burdick Court added that the purpose
of an election is "not to provide a means of giving vent
to 'short-range political goals, pique, or personal quarrels.
' Attributing to elections a more generalized expressive function
would undermine the ability of States to operate elections fairly
and efficiently. " Burdick, 504 U.S. at 438 (internal
citation omitted). This quote does not undermine the fact that
voting is speech in this case.
In Burdick the issue was what level of protection should
be granted to voters' desire to cast a protest vote by writing
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intend to send a particularized message which is received by
those who act on the results of the elections, voting results
can be categorized as protected symbolic speech under the Texas
v. Johnson test.
Core political speech. is also constitutionally shielded.
It is accorded "the broadest protection" under the First
Amendment. McIntyre v. Ohio Elections Comm'n, 514 U.S.
334, 346 (1995). Unfortunately, not every variety of "core
political speech" has been clearly catalogued. It has involved
mostly pre-election activity and speech. See, e.g., id. at 347
(finding that handing out anonymous leaflets about an upcoming
election is core political speech); Meyer v. Grant, 486
U.S. 414, 425 (1988) (finding that circulation of an initiative
petition involves core political speech). The phrase usually has
been used to encompass
(footnote continued from previous page) the names of candidates
not listed on the ballot and to have those votes counted. Id.
at 430. The Supreme Court held that a state need not allow voters
the opportunity to express their opinions on every possible candidate
or subject in any given elections where candidates' ballot access
and voters' rights to cast a vote were otherwise provided for
adequately. Id. at 438. States were therefore not required to
count write-in votes. Id.The issue in this case is the level of protection to be granted
to votes lawfully cast on an issue properly placed before the
voting public. Burdick held that there was not a sufficient
First Amendment interest in voting for write in candidates to
outweigh the state's Everest in efficient elections. Id.
at 440. The matter before this Court concerns the First Amendment
rights of citizens of the District of Columbia to have made known
the results of their votes properly cast on an issue properly
placed on the ballot.
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speech about political candidates or ideas, see id., but not
necessarily the vote itself.
The reasons or protecting core political speech shed some
light or the nature of what that term should entail. Core political
speech is given the broadest protection in order "'to assure
[t]he unfettered interchange of ideas for the bringing about of
political and social charges desired by the people.'" McIntyre,
514 U.S. at 346 (quoting Roth v. United States, 354 U.S.
476, 484 (1957 ). If discussion about social and political change
is core political speech, it follows that the instrumentality
used to bring about political and social change, that is, a lawful
vote and its results, should be given the same kind of protection.
The United States has not argued to this Court that voting
results are not speech. Rather, the government suggests avoiding
the First Amendment question altogether. The United States' position
is that the Barr Amendment does not prevent` release of the election
result but that certification of the result is not protected by
the First Amendment. (Tr. of Motion Hr'g at 51.) Calling Congress's
act through the Barr Amendment "prospective repeal,"
the government argues Chat the Barr Amendment has the same effect
as a law stating that marijuana is illegal in the District of
Columbia. No First
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Amendment rights are implicated, the government argues, because
the Barr Amendment has the same effect as such a law.
There is no doubt that Congress could pass such a law that
would have full force in the District As described above, Congress
is fully empowered to enact substantive local laws for the District
That fact, however, does not change the nature of a vote tally
on a matter properly placed on a ballot. Speech does not charge
its character for having taken place in the District of Columbia
Cf. Boos v. Barry, 485 U.S. 312 (1988) (discussing
restrictions on picketing in the District and finding that Congress's
power over the District did not change the analysis of First Amendment
rights in that case). Congress's power over the District cannot
change the fundamental nature and meaning of the acts of lawful
voting and communicating voting results Cf, Buckley, 424 U.S.
at 13-14 (stating that "the critical constitutional questions
presented here go not to the basic power of Congress to legislate
in this area, but to whether the specific legislation that Congress
has enacted interferes with First Amendment freedoms"). The
legal status of the vote remains constant. Congress did not choose
to pass a law only about drug possession, use and distribution.
It chose to pass a law about elections. Based on the votes strong
communicative content and the history of the vote's central importance
to a democratic system of government, this Court concludes that
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results of votes properly cast in a properly conducted election
are core political speech.
If the Barr Amendment precluded release and certification
of the results of the referendum, it would have to pass constitutional
muster. The proper level of review would be strict scrutiny for
at least three reasons. First, as discussed above, denying D.C.
citizens access to the outcome of the election held on November
3, l998 burdens core political speech. The Supreme Court instructs
that "[w]hen a law burdens core political speech, we apply
'exacting scrutiny' and we uphold the restriction only if it is
narrowly tailored to serve an overriding state interest."
McIntyre, 514 U.S. at 347 (citing First Nat'l Bank of
Boston v. Bellotti, 435 U.S. 765, 786 (1978)).
Second, the amendment would. be a content-based restriction
on speech. Content based restrictions are those that restrict
speech "based on its substantive content or the message it
conveys." Rosenberger v. Rector & Visitors of Univ.
of Va., 515 U.S. 815, 828 (1995). The Barr Amendment language
purports to prevent the Board from conducting ballot initiatives
on reducing penalties for certain drug possession Congress may
have entirely understandable motives for attempting to curb drug
possession, use, and distribution in the District. That does not
change the fact that keeping a veil over the results of a
properly conducted referendum would cut short public expression
about the topic of drug legalization -- either pro, con or neutral.
As a content-based restriction, the Barr Amendment would be subject
to strict scrutiny. See Buckley v. American Constitutional
Law Found., 119 S. Ct. 636, 651 (1999) (Thomas, J. concurring)
Burdick instructs yet a third way to characterize
this issue while still arriving at the same end :
[T]he rigorousness of our inquiry into the law depends upon
the extent to which a challenged regulation burdens First and
Fourteenth Amendment rights. Thus, as we have recognized when
those rights are subjected to "severe" restrictions,
the Regulation must be "narrowly drawn to advance a state
interest of compelling importance."
Burdick, 405 U.S. at 434 (quoting Norman v. Reed,
502 U.S. 279, 289 (1992)). 4/
In this case, First Amendment speech through the vote would
have been effectively extinguished if the Barr Amendment had blocked
releasing and certifying the results. To cast a lawful vote only
to be told that that vote wall not be counted or
4/ Burdick applied a lesser standard to the
law in that case because the master involved facially neutral
election laws propounded in the name of efficiency. See
Burdick, 504 U.S. at 438. The state's asserted interest
in that case was in conducting elections uncluttered by extraneous,
write-in votes for candidates. Id. There is no such asserted
interest in this case. As described below, the asserted state
interest is in preventing drug legalization.
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released is to rob the vote of any communicative meaning whatsoever.
Speaking within the context of a congressional election, the Supreme
Court specifically stated that "[o]bviously included within
the right to choose, secured by the Constitution, is the right
of qualified voters within a state to cast their ballots and have
them counted." United States v. Classic, 313 U.S.
299, 315 (1941) (emphasis added). If thee Barr Amendment were
to keep the votes on Initiative 59 from being released and certified,
the vote would be muzzled expression and a meaningless right.
Such a restriction on the vote would be severe and would appropriately
trigger strict scrutiny.
Congress's interest in preventing the legalization of marijuana
presumably would be the compelling government interest in this
case. (Int.'s Memo.. at 10.) The United States chose not to brief
the issue of the proper standard of review or its application,
however, believing First Amendment analysis has necessary. (Id.
Assuming that prevention of marijuana's legalization is
a compelling state interest, blocking the release and certification
of the results of votes properly cast in a properly conducted
ballot referendum would not appear to be a narrowly tailored means
to achieve that interest. As all sides admit, Congress is empowered
to disapprove Initiative 59, if it passes, during a review period
after the election or to defeat it by repeal. See
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D.C. Code Ann. §§ 1-206, 1-233 (1981). If Congress's
interest here is to assure that drug possession, use, and distribution
are not legalized in the District, that interest readily can be
met without burdening First Amendment rights.
The United States argues that the Barr Amendment is a "prospective
repeal." (Int.'s .Mem. at 15). The government contends that
because Congress could gave passed a local law criminalizing drug
possession, 1t could instead pass the Barr Amendment to prevent
the conduct of a ballot initiative on that same topic. (Id.) Presumably,
under that reasoning, Congress could enact a law that precluded
the release and certification of the results of lawfully cast
votes on matters properly placed on a D.C. ballot.
Just because one end can be accomplished constitutionally
does not suggest that any means possible to accomplish the desired
end is constitutional. In Clinton v. United States, 118
S. Ct. 2091 (1998), Congress argued that the line item veto must
be constitutional because the President could accomplish the same
ends without the benefit of the line item veto, See id. at 2105
(quoting the governments argument that "the substance of
the authority to cancel tax and spending items 'is, in practical
effect, no more and no less than the power to "decline to
spend" specified sums of money, or to "decline to implement"
specified tax measures'"). That law, however, was held to
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unconstitutional because it was deemed an unconstitutional
means of vetoing legislation. See id. at 2108. Similarly, in INS
v. Chadha, 462 U.S. 919 (1983), the fact that Congress, by
bicameral enactment signed by the President, could amend or repeal
a statute in order to alter the way the Executive Branch enforced
it, did not justify a one-house veto of executive act. See
Chadha, 462 U.S. at 954, 956-59 (finding that although
the constitutional structure for passing laws is cumbersome and
difficult, Congress is bound by it).
In this case, simply because Congress could prevent Initiative
59 from becoming law another way does not mean that it could do
so in any manner. Passing a local law to apply in the District
that outlaws marijuana possession, use, and distribution is perfectly
permissible. See D. C. Code Ann. § 1-206. An enactment
that precluded the Board from releasing and certifying the results
of a proper election, achieves the same result but infringes on
D.C. citizens' First Amendment rights. That would be not permissible,
Indeed, Congress's ability to achieve its purpose another way
would tend to show that the law should not be not narrowly tailored
enough to meet the asserted compelling state interest.
Under our Constitutional structure, the way government
accomplishes it purposes matters. See Chadha, 462
U.S. at 958--59. In legislating for the District, Congress is
as bound by the
Constitution as it is when it legislates for the country as
a whole. In this case, the principle of prospective repeal to
justify not releasing and certifying the results of the Initiative
59 referendum woo d not comport with the First Amendment rights
and the narrow tailoring requirement imposed by the Bill of Rights
and the Supreme Court. 5/
In summary, if the Barr Amendment precluded counting, releasing,
and certifying the results of votes properly cast in a proper
referendum it would burden core political speech. and would not
be sufficiently narrowly tailored to meet the government's interest
in criminalizing drug possession or use. It would not survive
strict scrutiny. 6/
5/ The United States argues that the First Amendment
does not prevent restrictions against plainly improper or unconstitutional
initiatives being placed on referendum ballots. (Int. 's Memo
at 18-20.) Initiative 59 is neither. The government cites no D.C.
Code provision that precludes ballot initiatives on reducing local
penalties for possession of marijuana. It does not argue that
the Board was wrong in approving the proposed initiative as a
proper subject or in certifying Initiative 59 to the ballot. (Miller
Decl. at 4.) In addition, whatever else Initiative 59 purports
to do, it proposes making local penalties for drug possession
narrower that the comparable federal ones. Nothing in the Constitution
precludes such an action.
6/ The amended complaint alleges that the Barr Amendment
denied plaintiffs due process of law and the equal protection
of the laws in violation of the Filth Amendment to the Constitution.
The Board moved for summary judgment on the equal protection claim,
agreeing with the plaintiffs' amended complaint. Neither the plaintiffs
nor the United States address the Fifth Amendment claims in their
motions for summary judgment. Because the Court has interpreted
the Barr Amendment as not prohibiting the Board from counting,
releasing and certifying the results of the votes on Initiative
59, the Fifth Amendment claims need not be reached.
The Barr Amendment precluded use of funds appropriated
for the District of Columbia in 1998 to conduct election day activities
related to Initiative 59. It did not preclude counting, announcing
and certifying the results of the vote on Initiative 59 thereafter.
If it had precluded handling the results, it would have violated
plaintiffs' First Amendment rights. However, the court does not
decide the constitutional issues since this interpretation of
the statute avoids the need to reach them.
There are too genuine issues of material fact concerning
plaintiffs' motion for summary judgment  on count two of the
original complaint, insofar as it argues that the Barr Amendment
does not prevent the Board from computing and certifying the results
o the referendum on Initiative 59. That portion of plaintiffs'
action. will be GRANTED. The remainder of plaintiffs' motion will
be DENIED. The defendant's motion  for an order authorizing
it to announce and certify the results of the vote on Initiative
59 in accordance with D.C. Code § 1-285 (1981) will be GRANTED.
The Defendant's motions for a declaratory judgment that the Barr
Amendment violates the first amendment  and for summary judgment
 will be DENIED. The United States' motion for summary judgment
 will be DENIED. An appropriate order accompanies this memorandum
ENTERED this 17th day of September, 1999/
Richard W. Roberts
United States District Judge
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WAYNE TURNER, et al., Civil Action No. 98-2634 (RWR)
v. Sept 17 1999
NANCY MAYER WHITTINGTON, CLERK
D.C. BOARD OF ELECTIONS AND ETHICS, U.S. DISTRICT COURT
UNITED STATES OF AMERICA,
For the reasons set forth in the accompanying Memorandum
Opinion issued today in this case, it is hereby
ORDERED that plaintiffs' motion for summary judgment 
on count two of the original complaint, insofar as it argues that
the Barr Amendment does not prevent the Board from computing and
certifying the results of the referendum on Initiative 59, be
and hereby is GRANTED. It is further
ORDERED that the remainder of plaintiffs' motion for summary
judgment  be and hereby is DENIED. It is further
ORDERED that defendant's motion , for an order authorizing
at it to announce and certify the results of the vote on Initiative
59 in accordance with D.C. Code § 1-285 (1981) be and hereby
GRANTED. Defendant District of Columbia Board of Elections
and Ethics is hereby authorized to tabulate, announce and verify
the results of the November 3, 1998 election on Initiative S9.
It is further
ORDERED that the defendant's motions for a declaratory
judgment that the Barr Amendment violates the First Amendment
 and for summary Judgment  be and hereby are DENIED. It
ORDERED that the United States' motion for summary judgment
 be and hereby is DENIED.
ENTERED this 17th day of September, 1999.
RICHARD W. ROBERTS
United States District Judge