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COURT REBUFFS CONGRESS

Federal judge sides with D.C., ACLU; orders marijuana vote counted

(Published September 20, 1999)

By OSCAR ABEYTA

Staff Writer

Congress, it seems, doesn’t always have the last word.

D.C. voters won a legal battle against the District’s congressional overseers Sept. 17 when U.S. District Court Judge Richard Roberts ruled that the House and Senate could not bar the D.C. Board of Elections and Ethics from counting, releasing and certifying the results of last year’s vote on the medical marijuana initiative.

"This is what we wanted. We can count, we can release, we can certify and we can transmit the results of the vote," said AIDS activist Wayne Turner, who led the Initiative 59 campaign. "This is a victory for patients and this is a victory for voters."

Turner said he hopes the elections board will tally the votes as soon as possible. The next regularly scheduled meeting of the board is Oct. 6 and the board could certify the results then, or the board could choose to call a special meeting to certify the vote count.

Rep. Bob Barr, R-Ga., attached an amendment to the city’s fiscal 1999 budget that prohibited the D.C. government from spending any money to conduct an election that might result in the legalization of marijuana for any reason, medical or otherwise. But the budget was approved just two weeks before the general election and the ballots were already printed and distributed, so D.C. voters had the option of voting for or against the initiative. It is widely believed that the measure was passed because unofficial exit polls conducted on election day showed voters approving the initiative by a wide margin.

Shortly after the election, the American Civil Liberties Union sued Congress and the D.C. government in federal court, asking that the Barr amendment be overturned and the city’s elections board be forced to count the Initiative 59 ballots and certify the results. In a bit of legal oddity, the D.C. government, which was named as a defendant, agreed in court with the ACLU’s case and joined the plaintiffs in the suit. When asked in court how much city money would be spent to count and certify the vote, city officials told the judge it would cost $1.64.

"The court recognizes that our citizens, like citizens in any other state with a referendum, have a right to determine their own laws and set their own future," Mayor Anthony A. Williams said in a statement. "At long last, voters will be heard on this public health issue."

D.C. Delegate Eleanor Holmes Norton noted that Barr, during this year’s budget debate, conceded on the House floor that Congress could not prohibit the District from counting its votes. She called the court decision "a double victory."

"This is a real victory, in the courts and the Congress," she said, referring to Barr’s concession on the House floor. "This shows that there is a limit on even the most conservative member of Congress on how much democracy they can extract" from the District.

Norton, who hadn’t yet seen Roberts’ ruling, said she is still concerned about the issue of Congress preemptively prohibiting the District from enacting its own laws, an action known legally as "prior restraint." Next year’s D.C. budget, which is headed for a near-certain veto by President Bill Clinton, contains a different version of the Barr amendment that would prohibit the District from enacting Initiative 59 in the event voters passed it.

"We think (Roberts’ ruling) is a terrific decision and it’s a strong affirmation of the First Amendment rights of D.C. voters," said Arthur Spitzer, the ACLU’s legal director. "This decision would certainly have a strong bearing on any case brought on by the new Barr amendment."

Turner, who took up the fight to get marijuana legalized for medicinal purposes after his partner, Steve Michael, died from AIDS, said he is "determined to see this through and implement the law that the voters passed."

Spitzer said the Justice Department, which represented Congress in the suit, has 45 days in which it can appeal the ruling. Justice Department officials could not be reached for comment.

Once the election is certified, the law – if passed by voters – would be subject to a 30-day review period during which Congress could vote to overturn it. A majority in both the House and the Senate would have to vote to overturn and the resolution would have to be signed by the president in order to overturn the law.

In the history of home rule in the District, 11 initiatives have been passed by voters. Congress has not overturned any of them.

Copyright 1999, The Common Denominator