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
- 10 -
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
- 11 -
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
- 12 -
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
- 13 -
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
- 14 -
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.
- 15 -
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 Amendment does not prevent` release of the election
result but that certification of the result is not protected by
the First Amendment. (Tr. of Motion Hr'g at 51.) Calling Congress's
act through the Barr Amendment "prospective repeal,"
the government argues Chat the Barr Amendment has the same effect
as a law stating that marijuana is illegal in the District of
Columbia. No First
- 16 -
Amendment rights are implicated, the government argues, because
the Barr Amendment has the same effect as such a law.
There is no doubt that Congress could pass such a law that
would have full force in the District As described above, Congress
is fully empowered to enact substantive local laws for the District
That fact, however, does not change the nature of a vote tally
on a matter properly placed on a ballot. Speech does not charge
its character for having taken place in the District of Columbia
Cf. Boos v. Barry, 485 U.S. 312 (1988) (discussing
restrictions on picketing in the District and finding that Congress's
power over the District did not change the analysis of First Amendment
rights in that case). Congress's power over the District cannot
change the fundamental nature and meaning of the acts of lawful
voting and communicating voting results Cf, Buckley, 424 U.S.
at 13-14 (stating that "the critical constitutional questions
presented here go not to the basic power of Congress to legislate
in this area, but to whether the specific legislation that Congress
has enacted interferes with First Amendment freedoms"). The
legal status of the vote remains constant. Congress did not choose
to pass a law only about drug possession, use and distribution.
It chose to pass a law about elections. Based on the votes strong
communicative content and the history of the vote's central importance
to a democratic system of government, this Court concludes that
the
- 17 -
results of votes properly cast in a properly conducted election
are core political speech.
If the Barr Amendment precluded release and certification
of the results of the referendum, it would have to pass constitutional
muster. The proper level of review would be strict scrutiny for
at least three reasons. First, as discussed above, denying D.C.
citizens access to the outcome of the election held on November
3, l998 burdens core political speech. The Supreme Court instructs
that "[w]hen a law burdens core political speech, we apply
'exacting scrutiny' and we uphold the restriction only if it is
narrowly tailored to serve an overriding state interest."
McIntyre, 514 U.S. at 347 (citing First Nat'l Bank of
Boston v. Bellotti, 435 U.S. 765, 786 (1978)).
Second, the amendment would. be a content-based restriction
on speech. Content based restrictions are those that restrict
speech "based on its substantive content or the message it
conveys." Rosenberger v. Rector & Visitors of Univ.
of Va., 515 U.S. 815, 828 (1995). The Barr Amendment language
purports to prevent the Board from conducting ballot initiatives
on reducing penalties for certain drug possession Congress may
have entirely understandable motives for attempting to curb drug
possession, use, and distribution in the District. That does not
change the fact that keeping a veil over the results of a
-18-
properly conducted referendum would cut short public expression
about the topic of drug legalization -- either pro, con or neutral.
As a content-based restriction, the Barr Amendment would be subject
to strict scrutiny. See Buckley v. American Constitutional
Law Found., 119 S. Ct. 636, 651 (1999) (Thomas, J. concurring)
Burdick instructs yet a third way to characterize
this issue while still arriving at the same end :
[T]he rigorousness of our inquiry into the law depends upon
the extent to which a challenged regulation burdens First and
Fourteenth Amendment rights. Thus, as we have recognized when
those rights are subjected to "severe" restrictions,
the Regulation must be "narrowly drawn to advance a state
interest of compelling importance."
Burdick, 405 U.S. at 434 (quoting Norman v. Reed,
502 U.S. 279, 289 (1992)). 4/
In this case, First Amendment speech through the vote would
have been effectively extinguished if the Barr Amendment had blocked
releasing and certifying the results. To cast a lawful vote only
to be told that that vote wall not be counted or
_____________________________
4/ Burdick applied a lesser standard to the
law in that case because the master involved facially neutral
election laws propounded in the name of efficiency. See
Burdick, 504 U.S. at 438. The state's asserted interest
in that case was in conducting elections uncluttered by extraneous,
write-in votes for candidates. Id. There is no such asserted
interest in this case. As described below, the asserted state
interest is in preventing drug legalization.
- 19 -
released is to rob the vote of any communicative meaning whatsoever.
Speaking within the context of a congressional election, the Supreme
Court specifically stated that "[o]bviously included within
the right to choose, secured by the Constitution, is the right
of qualified voters within a state to cast their ballots and have
them counted." United States v. Classic, 313 U.S.
299, 315 (1941) (emphasis added). If thee Barr Amendment were
to keep the votes on Initiative 59 from being released and certified,
the vote would be muzzled expression and a meaningless right.
Such a restriction on the vote would be severe and would appropriately
trigger strict scrutiny.
Congress's interest in preventing the legalization of marijuana
presumably would be the compelling government interest in this
case. (Int.'s Memo.. at 10.) The United States chose not to brief
the issue of the proper standard of review or its application,
however, believing First Amendment analysis has necessary. (Id.
21 25.)
Assuming that prevention of marijuana's legalization is
a compelling state interest, blocking the release and certification
of the results of votes properly cast in a properly conducted
ballot referendum would not appear to be a narrowly tailored means
to achieve that interest. As all sides admit, Congress is empowered
to disapprove Initiative 59, if it passes, during a review period
after the election or to defeat it by repeal. See
- 20 -
D.C. Code Ann. §§ 1-206, 1-233 (1981). If Congress's
interest here is to assure that drug possession, use, and distribution
are not legalized in the District, that interest readily can be
met without burdening First Amendment rights.
The United States argues that the Barr Amendment is a "prospective
repeal." (Int.'s .Mem. at 15). The government contends that
because Congress could gave passed a local law criminalizing drug
possession, 1t could instead pass the Barr Amendment to prevent
the conduct of a ballot initiative on that same topic. (Id.) Presumably,
under that reasoning, Congress could enact a law that precluded
the release and certification of the results of lawfully cast
votes on matters properly placed on a D.C. ballot.
Just because one end can be accomplished constitutionally
does not suggest that any means possible to accomplish the desired
end is constitutional. In Clinton v. United States, 118
S. Ct. 2091 (1998), Congress argued that the line item veto must
be constitutional because the President could accomplish the same
ends without the benefit of the line item veto, See id. at 2105
(quoting the governments argument that "the substance of
the authority to cancel tax and spending items 'is, in practical
effect, no more and no less than the power to "decline to
spend" specified sums of money, or to "decline to implement"
specified tax measures'"). That law, however, was held to
be
- 21 -
unconstitutional because it was deemed an unconstitutional
means of vetoing legislation. See id. at 2108. Similarly, in INS
v. Chadha, 462 U.S. 919 (1983), the fact that Congress, by
bicameral enactment signed by the President, could amend or repeal
a statute in order to alter the way the Executive Branch enforced
it, did not justify a one-house veto of executive act. See
Chadha, 462 U.S. at 954, 956-59 (finding that although
the constitutional structure for passing laws is cumbersome and
difficult, Congress is bound by it).
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. Passing a local law to apply in the District
that outlaws marijuana possession, use, and distribution is perfectly
permissible. See D. C. Code Ann. § 1-206. An enactment
that precluded the Board from releasing and certifying the results
of a proper election, achieves the same result but infringes on
D.C. citizens' First Amendment rights. That would be not permissible,
Indeed, Congress's ability to achieve its purpose another way
would tend to show that the law should not be not narrowly tailored
enough to meet the asserted compelling state interest.
Under our Constitutional structure, the way government
accomplishes it purposes matters. See Chadha, 462
U.S. at 958--59. In legislating for the District, Congress is
as bound by the
-22 -
Constitution as it is when it legislates for the country as
a whole. In this case, the principle of prospective repeal to
justify not releasing and certifying the results of the Initiative
59 referendum woo d not comport with the First Amendment rights
and the narrow tailoring requirement imposed by the Bill of Rights
and the Supreme Court. 5/
In summary, if the Barr Amendment precluded counting, releasing,
and certifying the results of votes properly cast in a proper
referendum it would burden core political speech. and would not
be sufficiently narrowly tailored to meet the government's interest
in criminalizing drug possession or use. It would not survive
strict scrutiny. 6/
_______________________________
5/ The United States argues that the First Amendment
does not prevent restrictions against plainly improper or unconstitutional
initiatives being placed on referendum ballots. (Int. 's Memo
at 18-20.) Initiative 59 is neither. The government cites no D.C.
Code provision that precludes ballot initiatives on reducing local
penalties for possession of marijuana. It does not argue that
the Board was wrong in approving the proposed initiative as a
proper subject or in certifying Initiative 59 to the ballot. (Miller
Decl. at 4.) In addition, whatever else Initiative 59 purports
to do, it proposes making local penalties for drug possession
narrower that the comparable federal ones. Nothing in the Constitution
precludes such an action.
6/ The amended complaint alleges that the Barr Amendment
denied plaintiffs due process of law and the equal protection
of the laws in violation of the Filth Amendment to the Constitution.
The Board moved for summary judgment on the equal protection claim,
agreeing with the plaintiffs' amended complaint. Neither the plaintiffs
nor the United States address the Fifth Amendment claims in their
motions for summary judgment. Because the Court has interpreted
the Barr Amendment as not prohibiting the Board from counting,
releasing and certifying the results of the votes on Initiative
59, the Fifth Amendment claims need not be reached.
Conclusion
The Barr Amendment precluded use of funds appropriated
for the District of Columbia in 1998 to conduct election day activities
related to Initiative 59. It did not preclude counting, announcing
and certifying the results of the vote on Initiative 59 thereafter.
If it had precluded handling the results, it would have violated
plaintiffs' First Amendment rights. However, the court does not
decide the constitutional issues since this interpretation of
the statute avoids the need to reach them.
There are too genuine issues of material fact concerning
plaintiffs' motion for summary judgment [11] on count two of the
original complaint, insofar as it argues that the Barr Amendment
does not prevent the Board from computing and certifying the results
o the referendum on Initiative 59. That portion of plaintiffs'
action. will be GRANTED. The remainder of plaintiffs' motion will
be DENIED. The defendant's motion [2] for an order authorizing
it to announce and certify the results of the vote on Initiative
59 in accordance with D.C. Code § 1-285 (1981) will be GRANTED.
The Defendant's motions for a declaratory judgment that the Barr
Amendment violates the first amendment [2] and for summary judgment
[13] will be DENIED. The United States' motion for summary judgment
[12] will be DENIED. An appropriate order accompanies this memorandum
opinion.
-24-
ENTERED this 17th day of September, 1999/
(signed)
Richard W. Roberts
United States District Judge
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WAYNE TURNER, et al., Civil Action No. 98-2634 (RWR)
Plaintiffs,
FILED
v. Sept 17 1999
NANCY MAYER WHITTINGTON, CLERK
D.C. BOARD OF ELECTIONS AND ETHICS, U.S. DISTRICT COURT
Defendant
and
UNITED STATES OF AMERICA,
Intervenor.
ORDER
For the reasons set forth in the accompanying Memorandum
Opinion issued today in this case, it is hereby
ORDERED that plaintiffs' motion for summary judgment [11]
on count two of the original complaint, insofar as it argues that
the Barr Amendment does not prevent the Board from computing and
certifying the results of the referendum on Initiative 59, be
and hereby is GRANTED. It is further
ORDERED that the remainder of plaintiffs' motion for summary
judgment [11] be and hereby is DENIED. It is further
ORDERED that defendant's motion [2], for an order authorizing
at it to announce and certify the results of the vote on Initiative
59 in accordance with D.C. Code § 1-285 (1981) be and hereby
is
GRANTED. Defendant District of Columbia Board of Elections
and Ethics is hereby authorized to tabulate, announce and verify
the results of the November 3, 1998 election on Initiative S9.
It is further
ORDERED that the defendant's motions for a declaratory
judgment that the Barr Amendment violates the First Amendment
[2] and for summary Judgment [3] be and hereby are DENIED. It
is further
ORDERED that the United States' motion for summary judgment
[12] be and hereby is DENIED.
ENTERED this 17th day of September, 1999.
. _
(signed)
RICHARD W. ROBERTS
United States District Judge
