UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WAYNE TURNER, et al.,
D.C. BOARD OF ELECTIONS AND ETHICS,
and UNITED STATES OF AMERICA,
MEMORANDUM OPINION 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. Factual Background 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 1981....
(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 derivative.
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 initiative. (Id.) 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 those
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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 . 2/ II 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 responsibility not
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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 structure").
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 elections
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 in
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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 Amend