"We have filed our lawsuit to make sure the votes are certified," said Wayne Turner, president of ACT-UP Washington and the main proponent of the initiative in the District. "Our ultimate victory will be even sweeter when we win the lawsuit," which was filed by the American Civil Liberties Union.

The day after the election, lawyers from the Washington chapter of the ACLU also filed a Freedom of Information Act request in an attempt to get the results of the election released.

Rep. Bob Barr, R-Ga., inserted an amendment into the fiscal 1999 D.C. budget bill passed by Congress which states no "funds contained in this Act may be used to conduct any ballot initiative which seeks to legalize or otherwise reduce penalties associated with possession, use or distribution" of marijuana for any use.

"In our view, the ‘Barr Amendment’ to the 1999 D.C. Appropriations Act has no effect on the Board’s obligation to abide by the Freedom of Information Act," the ACLU’s letter to the elections board said.

On Nov. 6, the ACLU again went to court, this time seeking a temporary restraining order against the D.C. elections board to force the release of the Initiative 59 vote tally. That motion was tentatively scheduled to be heard Nov. 9. If the restraining order is granted, the board could be directed to release the election results immediately.

"There’s no guarantee that the judge will rule (to grant the restraining order)," said Arthur Spitzer, legal director for the ACLU. "And there’s no guarantee they (the board of elections) won’t appeal a decision."

Benjamin F. Wilson, chairman of the board of elections, decided Nov. 3 to reverse an earlier decision and withhold election results from the public after receiving phone calls from several congressional staff members warning that announcement of the vote totals would be a violation of the Barr amendment, said Kenneth McGhie, general counsel to the elections board. Initially, the board’s position was that it would count the votes and release the totals but would not be able to certify the election results.

McGhie declined to attach a dollar figure to the cost of telling the public the outcome of balloting on Initiative 59, but he said the amount would be "very, very minimal."

McGhie said the board of elections plans to seek a declaratory judgment from a federal judge for "guidance" in the matter. He said the board will ask a judge for an opinion on whether the elections board should respect District residents’ First Amendment free speech rights or whether they should abide by the congressional spending prohibition. Spitzer characterized any such judicial decision as a ruling on whether the Barr amendment is constitutional.

Turner said he plans a "peaceful" protest at noon Nov. 10 at One Judiciary Square, where the board of elections office is housed, to object to the board’s decision to withhold the results.

Similar initiatives on the legalization of marijuana for medicinal purposes were approved by voters in Washington state, Arizona and Nevada.

Congress did not pass any laws attempting to prohibit those three states from holding or certifying their elections.

Copyright 1998, The Common Denominator