Congressional restriction on medical marijuana vote unconstitutional

A congressional attempt to prevent District of Columbia residents from voting to legalize medical marijuana was an impermissible restriction on free speech, a federal District Court ruled in mid-September.

The ruling ended a year-long fight among local activists, election officials, and a conservative congressman and finally allowed a count of the ballots from the November 1998 referendum to legalize medical use of marijuana.

In its oversight capacity as lawmaker for the District of Columbia, Congress sought to prevent a city referendum on whether to legalize the use of medical marijuana in the fall of 1998.

On Sept. 17 of that year, local activist Wayne Turner of ACT-UP/DC and others secured a spot on the Nov. 3 ballot for a proposal to legalize the use of medical marijuana. Known as Initiative 59, the proposal would have allowed “all seriously ill individuals [to] 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 . . . 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 not violate the District of Columbia Uniform Controlled Substances Act of 1981.”

In an attempt to stop the vote, Congress passed the Barr Amendment to the District’s appropriation’s bill on Oct. 21, 1998. The amendment, named after Congressman Bob Barr (R-Ga.) states, “None of the funds contained [in the funding bill] may be used to conduct any ballot initiative which seeks to legalize” marijuana.

By that time, however, the ballots already had been printed, and District residents were allowed to vote on the initiative at the Nov. 3 election. But concerned that spending public money to count the votes would violate the Barr Amendment, the D.C. Board of Elections refused to count the ballots.

Turner and others, including the D.C. office of the American Civil Liberties Union, filed suit on Nov. 9 1998, in federal District Court in Washington, D.C., in an effort to require the Board of Elections to count the votes and release the results. The United States joined the case as an intervener on Nov. 30, 1998, to oppose the certification of the election results.

Turner argued that the Barr Amendment’s language, “to conduct any ballot initiative,” applied only to the events leading up to the election. It did not prevent the subsequent counting and certification of votes once the ballot initiative had concluded, he argued. In its arguments before the court, the Board of Elections explained its only reason for not counting and certifying the votes was its fear of violating the Barr Amendment. While the cost of counting and certifying the votes would be minimal, it could possibly violate the law, it maintained.

The federal government conceded that the law would not prevent counting the votes, arguing instead it prevented only the certification of them. Certification is the formal process by which the Board of Elections votes to ratify election results, thus becoming law unless Congress formally disapproves of the vote.

The court, however, ruled in mid-September that such an interpretation of the Barr Amendment would violate the First Amendment rights of D.C. residents. The court presumed that Congress would not have passed an unconstitutional law; therefore, the Barr Amendment could not be interpreted in any way that would infringe upon the First Amendment.

“The issue here is whether Congress’ plenary power over the District of Columbia encompasses the power to prevent political speech, in the form of the results of a vote properly cast in a properly conducted ballot referendum, from being made public. The answer to that question must be no,” the court ruled.

Voting, the court found, is an act of symbolic speech that must be afforded the greatest level of constitutional protection allowed. Congress may properly exercise lawmaking and spending powers over the District of Columbia, but it must do so in a way that does not violate the First Amendment. To interpret the Barr Amendment in the way the United States urged would be unconstitutional, the court found.

“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 court said.

Congress has the power to outlaw marijuana use in the District of Columbia, the court said, but it does not have the power to restrict free speech to achieve that goal.

“Just because one end can be accomplished constitutionally does not suggest that any means possible to accomplish the desired end is constitutional,” the court said. “In this case, simply because Congress could prevent Initiative 59 from becoming law another way does not mean that it could do so in any manner. . . . An enactment that precluded the Board from releasing and certifying the results of a proper election achieves the same results but infringes on D.C. citizens’ First Amendment rights. That would not be permissible.” (Turner v. D.C. Board of Elections)