When District of Columbia voters went to the polls on November 3 to vote on Initiative 59, the D.C. medical marijuana initiative, most of them assumed that their vote would be counted and the results of the election certified.
Unfortunately for District residents, Congress outlawed the expenditure of funds on the vote thanks to the efforts of Rep. Bob Barr (R-GA), the author of the anti-democratic amendment. Now the federal government has to expend more tax dollars in an attempt to defend its actions in federal court.
On December 18, the ACLU (representing Wayne Turner, the sponsor of Initiative 59) and the D.C. Board of Elections argued that the Barr Amendment violated the First Amendment and amounted to viewpoint discrimination by the federal government. According to Graham Boyd, the ACLU lawyer trying the case, the Supreme Court has established that such discrimination is "per se unconstitutional" and therefore the election results must be certified. The Clinton Justice Department defended the Barr Amendment, arguing that "Congress can legislate on anything in regard to the District." Government lawyers also argued that the initiative process was a power delegated to the District by Congress, and "what Congress gives, it can take away."
The Barr Amendment prohibits federal funds from being "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 substance under the Controlled Substances Act (21 U.S.C. 802) or any tetrahydrocannabinols derivative." In the August 6 debate to support the amendment, Barr argued that the amendment was necessary because "history dictates to us that these drug legalization people do not give up... All this amendment does is it prevents funds, appropriated funds, from being used in any way to fund a ballot initiative. It strikes not only at the ballot itself, but at using any funds for the development of that ballot, for publicity surrounding that ballot, the whole range of things that these drug legalization people do, over and over and over again."
Barr's stated intention of trying to prohibit the views of "these drug legalization people" became an issue at least twice during the trial. The plaintiffs used the statement as proof that the purpose of the amendment was to discriminate against certain views, and U.S. District Judge Richard Roberts referred to the statement in his cross-examination of the Justice Department. The government eventually admitted that the Barr Amendment did contain a particular viewpoint, but it was constitutional because Congress was simply doing its job of adopting public policy.
Also supporting the amendment was Rep. Dennis Hastert (R-IL), a frontrunner in the battle for Speaker of the House. Described in the press as a "moderate" and by Barr as "a leader in the war against mind-altering drug usage," Hastert said the amendment was necessary to insure the safety of the millions of constituents who visit the nation's capitol. On the House floor he said: "If we want a drug-free America, if we want a drug-free workplace, if we want drug-free prisons and drug-free schools and drug-free highways, we probably ought to have a drug-free capital, to say to prohibit the legalization of marijuana in the District of Columbia, where millions of our constituents come, year in and year out, day in and day out, week in and week out. They ought to be safe."
Surprisingly, the federal government defense lawyers argued that the Barr Amendment did not prohibit the D.C. Board of Elections and Ethics from releasing the results of the initiative vote, and that the vote tally should be made public. They also argued, however, that the amendment did prohibit the certification of the election.
Wayne Turner of ACTUP-DC (http://www.actupdc.org) told the Associated Press that the federal government's reasoning is "basically turning an election into a public opinion poll. This is about the right of the people of the District of Columbia to have their votes counted and to have them count."
No date has been set for Judge Roberts' decision, but lawyers are hoping for a ruling within the next two weeks, according to the Washington Post. Stay posted to the Week Online for news on the ruling.