Democracy Held Hostage

December 31, 2000

Seizing ballot boxes was once the unique province of military dictators like Nigeria's General Sani Abacha. Abacha refused to announce the results of Nigeria's 1993 election when the citizenry appeared to favor the General's civilian rival, Moshood Abiola. In a little noticed development, the United States recently experimented with its version of tinpot democracy, when for the first time in this nation's history, an election was canceled for fear of its outcome.

Our domestic dictator, the Canceler of Elections? Congressman Bob Barr. The subject matter so nefarious that the voters should not be allowed to speak? Medical marijuana. And the colony-the Last American Plantation-where Congress would dare to seal, if not steal, the ballot box? The District of Columbia.

This article tells the story, surprisingly unknown to the public outside of D.C., of federal litigation to require the District of Columbia to announce the results of the vote on the District's medical marijuana initiative. The case turned on the First Amendment rights of the voters to express themselves through the voting process and to learn the results of their duly cast ballots.

On Election Day 1998, people in five states and the District of Columbia voted on ballot initiatives to allow critically ill patients to use marijuana for medical purposes without fear of prosecution under state or local laws. California and Arizona had already passed similar initiatives two years earlier. The measures passed by a landslide in all states, but the voters of D.C. were told that they, unique among American citizens, would not learn the results of the vote on their medical marijuana law, Initiative 59.

The District of Columbia, falling directly under the legislative power of Congress, suffers an annual barrage of clauses and amendments in the annual budget bill that reflect the social agenda of Congressional representatives of the 50 states-politicians not elected by D.C. residents. The restrictions placed by Congress on D.C. are arbitrary impositions of politically conservative principles on the city, regardless of the opinions of its residents. A certain Congressman Armstrong who disliked gays and lesbians once inserted in the annual D.C. appropriations bill a measure to ensure that universities in D.C. do not have to fund gay and lesbian organizations. Another Congressman snuck in a measure to prevent any organization in D.C. receiving federal funds from using even private funds to operate a needle exchange. Other measures have tinkered with abortion laws, efforts to allow benefits for unmarried domestic partners, and school voucher rules. None of these measures was able to gain support from Congress for national legislation. But, as a little noticed rider to a massive appropriations bill, a single Congressman has been able to impose his views upon a city of 570,000 residents.

Thus the Barr Amendment of 1998 carried the tradition of D.C. subjugation an outrageous step further. Congress stole an election, preventing the people of D.C. from even learning the results of their vote on Initiative 59 for over a year.

The Medical Marijuana Initiative

The text of Initiative 59 creates a straightforward exemption from local criminal liability for a narrow group of seriously ill patients and their caregivers. Specifically, the initiative permits:

all seriously ill individuals to obtain and use marijuana for medical purposes when a licensed physician has found the use of marijuana to be medically necessary and has recommended the use of marijuana for the treatment (or to mitigate the side effects of other treatments) of diseases and conditions such as HIV/AIDS, cancer, glaucoma and any other serious or chronic illnesses for which the recommending physician reasonably believes that marijuana has demonstrated utility.

This referendum exempts patients who use or obtain marijuana for medical purposes, physicians who recommend marijuana for medical purposes, and the non-profit groups in D.C. existing for the safe distribution of "medical marijuana" from criminal prosecution under D.C. law. At the same time, the initiative reaffirms that all cultivation and distribution of marijuana for purposes other than those listed in the initiative and any violent act, driving, or crime-involving danger to the public while under the influence of marijuana would remain punishable under the District's Controlled Substances Act.

The activists from the D.C. chapter of ACT-UP faithfully followed the script for putting 1-59 onto the ballot. Under the banner of patients' rights, they collected thousands of signatures. Then, on September 17, 1998, they secured the approval of the Board of Elections and Ethics, ensuring the initiatives' place on the November ballot. Once the measure was approved by the Board of Elections and Ethics, the referendum question was printed on the ballot, and computers were programmed to tally the results on Election Day.

The Barr Amendment

Furious that voters might condone marijuana use, even for sick or dying patients, Congressman Bob Barr sprang into action. A Republican from Georgia familiar to the TV-viewing public for his impassioned defense of the "rule of law" during the Clinton impeachment proceedings, Bob Barr displayed little concern for the rule of law in the nation's capital. In October 1998, he slipped into a massive omnibus appropriations bill-a document several feet thick that no individual claimed to have read-a tiny but powerful provision:

None of the funds contained in the [D.C. Budget Act] may be used to conduct any ballot initiative which seeks to legalize or otherwise reduce the penalties associated with the possession, use or distribution of any Schedule I substance under the Controlled Substances Act of any tetrahydrocannabinols (THC) derivative.

Representative Barr readily acknowledged an intent to block the advancement and to squelch the communications of a national political movement, which he strongly disfavors:

[H]istory dictates to us that these drug legalization people do not give up. What they will try and do is they will try and come back again and again and again.... 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.1

The Barr Amendment is not an isolated instance of federal hostility to voters approving medical marijuana initiatives. The issue emerged into the national limelight two years ago when California passed a medical marijuana initiative. Federal officials and members of Congress made no secret of their disapproval of medical marijuana, stating that the very concept would send "the wrong message" to the public and to children in particular. Accordingly, the federal government issued a policy threatening to arrest physicians who discuss or recommend marijuana. A federal court has preliminarily enjoined this threat as viewpoint discrimination in violation of physicians' and patients' First Amendment rights.2

After being rebuffed in their pursuit of physicians, federal officials turned next to the novel tactic of obtaining civil injunctions under the federal Controlled Substances Act against organizations providing marijuana to patients. This approach avoids having to present cases to a California jury, as would be necessary in a criminal prosecution, and has succeeded in closing down a significant means of supplying medical marijuana to patients in California.3

The Barr Amendment goes beyond these previous federal tactics of postfacto blocking implementation of medical marijuana initiatives. Instead, it launches a preemptive strike against the D.C. electorate: if voters are intent on enacting these laws, the Barr Amendment simply cancels voters' ability even to consider such laws.

The Election Goes Forward, But No Results Are Announced

Because the measure was already printed on the ballot, absentee ballots had been mailed, and computers were programmed to tally the votes, no further funds were needed to conduct the vote on Initiative 59. On election day, the ballots included the initiative, and every voter had the opportunity to mark "Yes" or "No" next to the line for Initiative 59. The ballots were read by special machines and the results fed into a computer. But if Bob Barr did not manage to stop the votes from being cast, his funding restriction made it impossible for the D.C. Board of Elections to count them. Pushing the computer button to print the results would require several seconds of effort from a paid employee-an exertion that would require expending $1.64 of the funds the Barr Amendment placed off limits for "conduct" of an election to legalize medical marijuana.

When the D.C. government refused to announce the results of the vote on I-59, the ACLU went to court. The case, conducted in Federal District Court before Judge Richard W. Roberts, named Wayne Turner, director of ACT-UP Washington, as plaintiff, together with other registered D.C. voters. The Board of Elections and Ethics was named as defendant. Plaintiffs claimed a straightforward violation of the First Amendment. Political speech, of which voting is but one form, enjoys heightened protection under the First Amendment. The Barr Amendment singles out a particular point of view-"initiatives which seek to legalize" marijuana -as a taboo topic for the ballot. D.C. voters may consider initiatives on a wide range of issues or even vote to increase penalties for marijuana use. The only forbidden topic is an initiative to decrease marijuana penalties. The First Amendment stands as a clear and absolute barrier where, as here, government singles out a politically disfavored point of view-particularly in the arena of public discourse and politics.

In a bizarre twist, the defendant Board of Elections concurred whole heartedly in the ACLU's legal position that the Barr Amendment violated the First Amendment. The problem was that, as a government whose existence and budget depend on Congressional whim, D.C. felt obliged to obey the Barr Amendment, even if patently unconstitutional. "Every single moment this vote is not counted is an injury to you, to me, to everyone in this room," John M. Feffen, the District's corporation counsel, told the court as he joined the ACLU at the table marked "Plaintiff." On the other side of the courtroom, the U.S. Department of Justice appeared as intervenor to defend the Barr Amendment. The irony of the Clinton Administration defending the handiwork of Bob Barr, one of the President's chief tormentors, was not lost on the considerable crowd gathered for the court hearing.

Plaintiffs' Arguments Against the Barr Amendment

While arguing that the Barr Amendment violated the First Amendment,4 the plaintiffs pointed out that the purpose of the Barr Amendment could not be simply to prevent enactment of a medical marijuana law, since Congress regularly reviews and retains the power to overturn D.C. initiatives. Instead, the Barr Amendment bypassed the usual review procedure in order to avoid a frank public appraisal of the officially heretical idea that marijuana might serve useful medical purposes and to hide the fact that D.C. voters might endorse a concept that some members of Congress find anathema.

The First Amendment reflects the firm belief that laws should emerge from a free debate of ideas, rather than conform to a coerced orthodoxy. Every time a government official has suppressed an idea thought to be troublesome or threatening, courts have ruled that government must not fetter political expression. The Supreme Court's longstanding protection of the right to vote upon controversial issues like medical marijuana "reflects our 'Profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." The Barr Amendment, in blocking a ballot initiative to allow medical use of marijuana, succumbed to the temptation of misusing governmental power in the interest of entrenching a political status quo.

If lawmakers feel strongly about an issue, the solution can never be to remove a disfavored topic from public consideration or to allow the electorate to vote upon only those issues politicians deem appropriate. Democracy cannot abide electoral rules that impose a ideological filter, relegating voters to the status of "closed-circuit recipients of only that which the state chooses to communicate."Indeed, unfettered "discussion of public issues... [is] integral to the, operation of the system of government established by our Constitution." 7

The Supreme Court has applied the First Amendment to the conduct of ballot initiatives, noting that denying proponents of an initiative a place on the ballot "limit[s] their ability to make the matter the focus of statewide discussion."8 When a particular issue is placed on the ballot and when the ballot results are announced, the issue becomes a topic of broad debate and discussion. In censoring the scope of permissible subjects for the D.C. ballot, the federal government has targeted a message it does not want the public to hear. Yet, the government's "fear that voters might make an ill-advised choice does not provide ... a compelling justification for limiting speech. It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign."9

Although the government may place neutral restrictions on access to the ballot (e.g., requiring the collection of a certain number of signatures), it is not permissible to restrict ballot measures because the government disagrees with the viewpoint expressed in a particular measure. "It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys." 10 The Barr Amendment, in ways not at all subtle, gags a city's electorate and makes a national secret of the views of that electorate, all because of the supposedly subversive, threatening subject matter of the initiative. Content-based measures "frankly aimed at suppression of dangerous ideas" are forbidden under the First Amendment.11

The Barr Amendment, however, goes beyond mere content-based discrimination (e.g., banning all initiatives concerning drugs), by attacking a particular viewpoint. The Barr Amendment is aimed uniquely at "the use of funds for pro-drug legalization ballot initiatives in any way, shape, or form."12 One can hardly imagine a more frank admission of viewpoint discrimination than shutting down the "pro" side of a debate, while leaving the "anti" side unfettered. "When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant."13

Given the violation of First Amendment principles, the fact that Congress enjoys considerable power over D.C. does not justify the Barr Amendment. Congress has the option of directly imposing on the District whatever marijuana laws it desires, but interfering with an election is not a permissible means to achieve this end. Voters have a right to cast ballots upon a measure that meets the procedural requirements for appearing on the ballot, to have the votes tabulated, and to have the results certified and transmitted to Congress. Selective, discriminatory interference with this process violates voters' expressive and associational rights.

Broad power to determine the substance of legislation in the District of Columbia resides in Congress, but only "so long as it does not contravene any provision of the Constitution," including the First Amendment.14 Just as a state's power to establish electoral regulations "does not extinguish the State's responsibility to observe the limits established by the First Amendment rights of the State's citizens,"15 it is equally true that Congress must exercise its authority within the constraints of the First Amendment.

Congress created a comprehensive, viewpoint-neutral framework for conducting ballot initiatives. The Home Rule Act specifies three appropriate methods of congressional control over the substance of legislation enacted through the initiative process. First, before allowing even the circulation of petitions proposing an initiative, Congress has required the D.C. Board of Elections to certify that the proposed measure is a "proper subject" according to the criteria set forth in the Home Rule Act.16 Second, Congress has the ability, after the certification of a vote in favor of an initiative, to pass a joint resolution blocking an initiative from ever going into effect.17 Third, Congress can enact substantive legislation to repeal or modify a provision of the D.C. Code, whether enacted by the Council or by initiative.18 Each of these mechanisms allows Congress to impose whatever marijuana law it ultimately deems appropriate; yet, nowhere is Congress allowed to interfere selectively with an election based on hostility to the viewpoint expressed in a particular ballot measure. The Barr Amendment ignores the existing congressional framework completely.

In sum, broad congressional power over the District's substantive legislation provides a variety of tools to criminalize medical marijuana under District law. The one method of blocking medical marijuana that is not permitted is the method chosen by the Barr Amendment: interfering with an authorized electoral process on the basis of viewpoint in violation of the First Amendment.

The Court Rules

On September 17, 1999, Judge Roberts ruled that the Board was able to count and release the results of Initiative 59, because while the Barr Amendment may have precluded the use of federal and local money in D.C. for election day activities, it did not prevent counting, announcing and certifying the results of the vote thereafter.

The court ruled initially that the Barr Amendment, by its own terms, did not block the announcement or certification of the vote results for Initiative 59. While the Barr Amendment restricted use of funds for "conduct" of an election to legalize medical marijuana, the court found that the "conduct" of the election ended with the casting of ballots. All subsequent steps - counting the ballots, announcing the results, and certifying the results - were not part of the "conduct" of an election and so were unaffected by the Barr Amendment.

Judge Roberts could have stopped with his two-page analysis of the meaning of the Barr Amendment, but he went on to include one of the more wonderful and lengthy pieces of obiter dicta to grace a law library shelf. The court agreed that making public the results of an election constitutes "political speech" at the core of the First Amendment, giving rise automatically to strict judicial scrutiny of the Barr Amendment.19 The court arrived at the same conclusion for two separate reasons, that the Barr Amendment is a content-based restriction on speech,20 and because the restriction places a "severe" burden on electoral speech which "would have been effectively extinguished if the Barr Amendment had blocked releasing and certifying results."21

The court also analyzed the case as involving symbolic speech: the act of voting, like the act of flag burning, communicates a message.22 The symbolic speech argument appears, to conflict with a Supreme Court case upholding a state's refusal to allow write-in candidates as a protest vote, in particular the Court's statement that "attributing to elections a more generalized expressive function would undermine the ability of States to operate elections fairly and efficiently."23 The court in Turner dismissed the Burdick dicta with the observation that the vote on Initiative 59 was "properly conducted" yet the results were not announced, whereas the state rules at issue in Burdick did not allow write-in candidates at all. Put differently, Congress may be able to eliminate the initiative process altogether for D.C., but it cannot selectively impound the results of that process.

Judge Roberts concluded with an observation that cuts to the core of the matter: "To cast a lawful vote only to be told that that vote will not be counted or released is to rob the vote of any communicative meaning whatsoever ? the vote would be a muzzled expression and a meaningless right."24 With the judge's ruling, the muzzle of the Barr Amendment was at last removed.

Aftermath of the Ruling

The results, released following Judge Roberts' decision, revealed that Initiative 59 in D.C., as in all of the other states with similar initiatives, was overwhelmingly favored by voters. 1-59 passed with a margin of 69-31 percent in November 1998.

However, beginning in summer 1999, with the drafting of the fiscal year 2000 budget for the District of Columbia, Rep. Barr and his colleagues again began working toward preventing the enactment of this initiative by the District. The D.C. fiscal appropriations bill passed by Congress in September 1999, H.R. 2587, included provisions prohibiting the expenditure of federal or local money on measures to legalize medicinal marijuana and placed certain restrictions on needle exchange programs. This spending bill was vetoed by President Clinton on September 28, 1999, because of its excessive interference with the affairs of D.C.

Less than a month after the veto, Congress returned with a new spending bill. Approved by the House of Representatives on October 14, H.R. 3064 is very similar to the vetoed H.R. 2587. The new budget also includes Barr's provisions which prevent local or federal expenditures to "enact or carry out" Initiative 59 in D.C., and further, expressly overturns the decision made by the D.C. voters last November. This new appropriations bill was submitted to the White House on November 2, 1999, and rapidly vetoed by President Clinton a day later, again on the grounds of excessive interference with the affairs of D.C. The third time perhaps being the charm (or at least being the time when the fiscal year drew to its inevitable conclusion), the President signed an appropriations bill that includes Bob Barr's language overturning Initiative 59.

Conclusion

"Free the District 137,523!" urged a Washington Post editorialist, referring to the number of voters who went to the polls on election day. Despite vindication in federal court, the District of Columbia voters remain frustrated. They voted. Most of them agreed to allow medical marijuana. But until a handful of meddling Congressmen decide to permit democracy in the nation's capital, the cry "Free the District 137,523!" will continue to be heard within the Beltway-and, one hopes, will gain some audience in the rest of the nation, as well. In the meantime, our little pocket of Nigerian-style democracy persists.

NOTES

1 144 Cong. Rec., H7389 (Aug. 6, 1998).

Conant v. McCaffrey. 172 F.R.D. 681 (N.D. Cal. 1997)

United States v. Cannabis Cultivators Club, 5 F. Supp. 2d 1086, 1104 (N.D. Cal. 1998). A recent appellate ruling opens the door to the possibility that the cannabis buyers' clubs will be able to operate for patients who are able to demonstrate that marijuana is the sole medicine that will alleviate a serious or life-threatening illness. See United States v. Oakland Cannabis Buyers' Cooperative, No. 98-16850 (9th Cir. Sept. 13, 1999). The federal government has filed a petition for rehearing en banc to challenge this decision.

4 The summary of plaintiffs' argument cites only the primary legal authorities and principal arguments. The full pleadings in the case are available from the author.

McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 346 (1995) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).

Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 511 (1969).

Buckley v. Valeo, 424 U.S. 1, 14 (1976).

Meyer v. Grant, 486 U.S. 414, 423 (1988).

Brown v. Hartiage, 456 U.S. 45, 53-54 (1982).

10 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 827 (1995).

11 Speiser v. Randall, 357 U.S. 513, 519 (1958).

12 Statement of Rep. Barr, 144 Cong. Rec. H7389.

13 Rosenberger, 515 U.S. at 829.

14 Palmore v. United States, 411 U.S. 389, 397 (1973); see also,&

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