The opinion of the court was delivered by: Roberts, District Judge.
Plaintiffs, five registered District of Columbia voters and a
committee of such voters, and the defendant, the District of
Columbia Board of Elections and Ethics ("the Board"), seek a
declaratory judgment that § 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, 1998 D.C.
referendum known as Initiative 59. The United States intervened
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
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.").) 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
substance under the Controlled Substances Act . . . or any
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 lessen 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 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