Board from counting and releasing the election results in
this case. (Tr. Motions Hr'g at 50; Intervenor's Mem. Supp. Summ.
J. at 24 ("Int.'s Mem.").) The United States maintains that the
Barr Amendment prohibits only certification of the results. (Id.)
Certification would make the language of a winning initiative
become law unless Congress disapproved it within 30 days. See
D.C.Code Ann. §§ 1-233, 1-285 (1981). The United States draws
this conclusion not from a plain reading of the amendment's text,
but rather from the supposition that Congress did not want
Initiative 59 to become law at all. (Tr. Motions Hr'g at 50;
Int.'s Mem. at 2, 10, 15, 23.)
The lone litigant who has not addressed the meaning of "conduct
any ballot initiative" is the Board. However, in its motion for
summary judgment and attachments, the Board describes what is
required in order for it to count, release, and certify the
result of last fall's election. To count and release the result
of the election on Initiative 59, a member of the Board, or its
staff, would have to request the count from the computer on those
ballots that were tabulated by computer. (Miller Decl. at 7.) The
expenditure would be "minimal." (Id. at 8.) The Board may also
have to hand count some votes, which also involves minimal
expenditure. (Def.'s Stmt. of Material Facts Not in Genuine
Dispute at 5.) To certify the vote, the Board would have to
convene a meeting at which the result of the election would be
recorded on a certification form and adopted by the Board.
(Miller Decl. at 8.) The costs of these actions would also be
minimal. (Id.) Certification is mainly a ministerial task which
would take no longer than five minutes. (Id.) Based on this
recitation, and the fact that the Board has not taken those
actions, it seems apparent that the Board views any expenditure
on Initiative 59 — whether before, during or after the
election — as violating the Barr Amendment.
The Barr Amendment itself provides no guidance on exactly what
"conduct any ballot initiative" is meant to entail. The sparse
legislative history offers scant clarification. 144 Cong. Rec.
H7388-89 (daily ed. Aug. 6, 1998). The plaintiffs' argument that
the Board's activities after election day are excluded finds
support, however, in the D.C.Code section describing the Board of
Elections' responsibilities in D.C. elections. The D.C.Code
directs the Board to, among other things, "(3) Conduct elections;
(4) Provide for recording and counting votes by means of ballots
or machines or both; [and] . . . (11) Certify . . . the results
of elections." D.C.Code Ann. § 1-1306 (1981). By listing
these tasks separately, the D.C.Code implies that each is a
distinct responsibility, and that conducting an election does not
encompass counting or certifying the vote.
A plain language reading of the Barr Amendment does little to
undercut the plaintiffs' position. It also offers little support
for the position that the Barr Amendment prevents certifying the
results of this election but not counting or releasing the
results, as the United States argues. There are two possible
constructions of the phrase "conduct any ballot initiative" in
this context. It could entail the entire process of the election,
from the moment an initiative is proposed for the ballot until
the results are certified to Congress. Alternatively, it could
mean merely managing election activity on the day of the
election. There is no reason to distinguish between counting,
release and certification when defining this phrase. All of these
tasks are ministerial. All involve minimal expenditure. All occur
after the voting is over.
Courts must accord acts of Congress the presumption of
constitutionality. See e.g., Rust v. Sullivan, 500 U.S. 173,
190-91, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). Where at all
possible, courts are required to construe Congressional
legislation in a way that avoids constitutional infirmities. Id.
The original parties in this case argue that if the Barr
Amendment prohibits counting, releasing and certifying
these election results, then it violates the constitutional rights
of freedom of expression and equal protection. With "conduct any
ballot initiative" interpreted as referring only to conducting
election day affairs, the Board would be allowed to count,
release and certify the vote on Initiative 59. The constitutional
claims would not be reached. Because a plain reading of the
amendment supports this interpretation, and because the opposite
interpretation is constitutionally infirm for the reasons
discussed below, the Court holds that the phrase "conduct any
ballot initiative" in the Barr Amendment does not prevent the
District of Columbia Board of Elections and Ethics from counting,
releasing and certifying the vote on Initiative 59 taken on
November 3, 1998.*fn2
Congress's Power over the District of Columbia
Constitutional issues would be implicated if the Barr Amendment
precluded the Board from announcing and certifying the election
results. One question, though, is whether Congress's unique
relationship to the District creates a different analytical
context in which to consider the alleged burden on First
Amendment rights. It may be that because Congress has the power
to withdraw the ballot initiative process from D.C. voters in its
entirety, Congress could therefore take the lesser step of
withdrawing particular kinds of ballot initiatives from D.C.
That is not the question to be decided in this case, however.
The issue here is not whether the Barr Amendment is
constitutional as applied to a proposed initiative that was kept
off the ballot. In this case, D.C. voters were properly given the
opportunity to vote on a ballot initiative and did so. The issue
here is whether Congress's plenary power over the District of
Columbia encompasses the power to prevent political speech, in
the form of the results of votes properly cast in a properly
conducted ballot referendum, from being made public. The answer
to that question must be no.
Congress's power over the District is granted by the
Constitution and is very broad. Congress may "exercise exclusive
Legislation in all Cases whatsoever, over such District . . . as
may become the Seat of the Government of the United States." U.S.
Const. art. I § 8 (the "D.C. Clause"). That clause has been
interpreted to grant plenary power to Congress over the District
of Columbia. See Palmore v. United States, 411 U.S. 389, 397, 93
S.Ct. 1670, 36 L.Ed.2d 342 (1973). Congress acts as a local
legislative body for D.C. Id. Home Rule and other subsequent
legislation have allowed District residents some measure of
governmental power. See D.C.Code Ann. §§ 1-201 to 299 (1981).
Even after the passage of Home Rule, however, Congress retains
broad authority to pass local laws on any subject. See D.C.Code
Ann. § 1-206 (1981). Thus, this Court is mindful of
Congress's broad legislative powers over the District, as granted
by the D.C. Clause.
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 others,
Congress's actions are constrained by the Constitution itself, as
the Supreme Court has explained. See Palmore, 411 U.S. at 397, 93
S.Ct. 1670 ("Congress `may exercise within the District all
legislative powers that the legislature of a state might exercise
within the State . . . 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, 19 S.Ct. 580, 43 L.Ed.
873 (1899))) (emphasis added); cf. Grant
v. Meyer, 828 F.2d 1446, 1456 (10th Cir. 1987) (having granted
citizens the right to an initiative procedure, the State was
obligated to confer the right in a manner consistent with the
Constitution), aff'd, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425
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, 112 S.Ct. 2408, 120 L.Ed.2d 120 (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, 117 S.Ct. 2365,
138 L.Ed.2d 914 (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 to interfere with First Amendment rights. See
Buckley v. Valeo, 424 U.S. 1, 13-20, 96 S.Ct. 612, 46 L.Ed.2d 659
(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 Marbury v. Madison, 5 U.S. (1 Branch) 137, 180,
2 L.Ed. 60 (1803) (stating that "a law repugnant to the
constitution is void").
Congress's acts controlling the District are no exception to
that fundamental rule. See Palmore, 411 U.S. at 397, 93 S.Ct.
1670. 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, 89 S.Ct. 5, 21 L.Ed.2d 24, (1968) (describing the right
to vote as among the "more precious in a free country" (quoting
Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481
(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 their voting constituents. See
id. ("`Other rights, even the most basic, are illusory if the
right to vote is undermined'"); see also Illinois State Bd. of
Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct.
983, 59 L.Ed.2d 230 (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 184, 99 S.Ct. 983. 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, 112 S.Ct. 2059, 119 L.Ed.2d 245 (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
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 would be understood.'" See Texas v. Johnson,
491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (quoting Spence
v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 41 L.Ed.2d
842 (1974)). This principle has protected a variety of acts. See
Texas v. Johnson, 491 U.S. at 406, 109 S.Ct. 2533 (holding that
burning a flag is protected by the First Amendment); Tinker v.
Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 514, 89
S.Ct. 733, 21 L.Ed.2d 731 (1969) (holding that wearing black
armbands to protest the war in Vietnam was protected under the
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,
99 S.Ct. 983 (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, 112 S.Ct.
2059 (stating that "the function of the electoral process is to
`winnow out and finally reject all but the chosen candidates'")
(citation committed).*fn3 Because voters in properly conducted
elections 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, 115 S.Ct.
1511, 131 L.Ed.2d 426 (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, 115 S.Ct. 1511 (finding that handing out anonymous
leaflets about an upcoming election is core political speech);
Meyer v. Grant, 486 U.S. 414, 425, 108 S.Ct. 1886, 100 L.Ed.2d
425 (1988) (finding that circulation of an initiative petition
involves core political speech). The phrase usually has been used
to encompass speech about political candidates or ideas, see id.,
but not necessarily the vote itself.
The reasons for protecting core political speech shed some
light on the nature of what that term should entail. Core
political speech is given the broadest protection
in order "`to assure [the] unfettered interchange of ideas for
the bringing about of political and social changes desired by the
people.'" McIntyre, 514 U.S. at 346, 115 S.Ct. 1511 (quoting
Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1
L.Ed.2d 1498 (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 Mot. Hr'g at 51.)
Calling Congress's action through the Barr Amendment "prospective
repeal," the government argues that the Barr Amendment has the
same effect as a law stating that marijuana is illegal in the
District of Columbia. No First 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 change its character for having taken place in the District
of Columbia. Cf. Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99
L.Ed.2d 333 (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, 96 S.Ct. 612
(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 vote's strong
communicative content and the history of the vote's central
importance to a democratic system of government, this Court
concludes that the 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, 1998 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, 115 S.Ct. 1511 (citing
First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98
S.Ct. 1407, 55 L.Ed.2d 707 (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. 819,
828, 115 S.Ct. 2510, 132 L.Ed.2d 700 (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 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., 525 U.S. 182,
119 S.Ct. 636, 651, 142 L.Ed.2d 599 (1999) (Thomas, J,
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 propriety of a state
election 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, 504 U.S. at 434, 112 S.Ct. 2059 (quoting Norman v. Reed,
502 U.S. 279, 289, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992)).