District
of
Columbia:
Silencing
the
Voice
of
the
Voters
11/6/98
In Washington, DC, a last-minute addition to the DC Appropriations Bill, submitted by Rep. Bob Barr (R-GA), forbade the use of district monies for the certification, not the counting, as erroneously reported in the Washington Post this week, of the medical marijuana vote. The initiative was a grass-roots effort with strong backing and support by ACTUP DC and the Marijuana Policy Project. On Tuesday (Election Day) the District of Columbia Board of Elections and Ethics issued a release which said that "under pressure and mandate from Congress," they would not release the results of the vote on I-59. "While the votes on Initiative Measure 59 will be counted," it said, "the Board has been instructed by Congress that the DC Appropriations Act, 1999, prevents the Board from making the results of the tabulation available to the public." Ken McGhie, Counsel to the Board, told The Week Online, "Over the past week, there have been concerns, expressed by the Congress, as to whether or not the Board could count and announce the results in light of the Barr Amendment. The Board and the Corporation Council decided that they could justify counting the ballots, since they were already printed with I-59 on them among the other races, and the computer was already programmed to count everything on the ballot. But we were concerned that announcing the result would be viewed as an attempt to defy the will of Congress. We felt it would be more prudent to wait for some direction from the court." The Board, McGhie said, would file a motion for declaratory judgement later this week, along with a request for expedited consideration. When asked if he knew of any precedent for the results of an American election being kept from the people on orders from the Congress, McGhie siad "none that I've been able to find." The ACLU announced that in addition to the lawsuit filed this week to get the results of the election certified, they would be filing a Freedom of Information Act request to get the results of the election released to the public. Exit polling, conducted by Americans for Medical Rights, found that 69% of voters cast ballots in favor of the initiative. Arthur Spitzer of the ACLU, National Capital District, told The Week Online that the ACLU had already filed suit to force the certification of the vote on First Amendment grounds. "Our position is that while the Constitution puts the District under Congressional control, and the Congress could, for example, tell the district that they cannot use voter initiatives at all, they cannot pick and choose which are okay and which are not. The Barr amendment said that District monies could not be used for an initiative which would lower penalties for marijuana, but it doesn't say, for example, that the district cannot certify an initiative to increase penalties for marijuana. That's like saying, 'you can vote for a Republican, but not a Democrat.' Congress cannot pass laws, in the District or anywhere else, that violate the First Amendment." On the day after the election, the ACLU also filed a Freedom of Information Act request to have the results of the vote released to the public. "There are several statutory defenses to such a request, for instance the government is not required to release personal files, or details of an ongoing criminal investigation," Spitzer said. "But we are confident that the results of a public election will not fit under any of those exceptions. Assuming that is so, they have ten days to release the information. But we have also reminded them that they are free to release the information sooner, and we're hoping that they will do so." Alice Miller of the DC Board
of Elections and Ethics told The Week Online, "We were stuck between a
rock and a hard place, to tell you the truth. On the one hand, it's
the Board's responsibility to announce and certify the results of elections,
but on the other, there was the Barr amendment, which seemed to override
that responsibility. Right now, we're just waiting for some direction
from the federal court as to what we should do."
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