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How a D.C. Referendum Wound Up in Limbo
Marijuana Ballots May Never Be Tallied

By David Montgomery
Washington Post Staff Writer
Friday, November 27, 1998; Page A01

Wayne Turner was home watching C-SPAN the night the House of Representatives tried to end his crusade.

Turner and his partner, Steve Michael, had launched a petition drive for a ballot initiative to legalize marijuana for seriously ill District residents. Michael, who had AIDS, died in May. Near the end of his life, he removed his name as sponsor of the drive and added Turner's, because he knew the sponsor must be a living D.C. voter. And he made Turner promise to keep the initiative alive.

Now, on Aug. 6, Turner flicked on the TV. It was past Hour Six of the droning debate on the D.C. budget.

On screen, Rep. Robert L. Barr Jr. (R-Ga.) rose to his feet. He started assailing "these drug legalization people" -- and Turner realized that Barr was talking about him. The former federal prosecutor introduced an amendment forbidding the city to spend money on a medical marijuana referendum.

Turner yelled at the television. What could this mean? He'd been gathering signatures for a year and a half -- was it all about to go down the drain?

The latest installment had begun in the long-running melodrama starring the District and its constitutional keeper, Congress. Each player -- the determined congressman, the outraged home rule partisans, the besieged D.C. delegate, the trapped bureaucrat, the earnest city lawyers -- acted out well-rehearsed roles.

The result: impasse.

Three weeks after D.C. voters cast their ballots in a legally valid referendum, those votes have not been counted. They may never be counted. What started as an argument over public health policy has blossomed into the most bizarre -- though perhaps inevitable -- consequence to date of the Founding Fathers' curious invention of a federal city-without-a-state.

Congress has imposed or vetoed laws and policies over the objections of the city's elected leaders many times before, but not since home rule has the right to run a local election been denied.

Congress passed Barr's amendment as part of the national budget last month, and President Clinton signed it into law. On Election Day, because the ballots had already been printed, residents were able to vote for or against Initiative 59, as the medical marijuana ballot question was called. But to comply with the new law, the election board's software specialist instructed the computer not to spit out the results.

The fight over Initiative 59 is now before a judge in U.S. District Court. Attorneys for the city and the American Civil Liberties Union have argued that the law violates the First Amendment right of District residents. A hearing is set for Dec. 18.

The ACLU initially sued the city to have the election results released. Never before, according to an ACLU lawyer, has the local chapter sued a defendant and had the defendant throw up its hands and say, in effect: You're right! We join you in this sagacious lawsuit against ourselves.

Turner, who moved to the city from Seattle five years ago, finds that out-of-towners have trouble understanding the District's circumscribed autonomy. "This is really driving it home for them," he said. "This really illustrates for people these aren't ethereal, abstract concepts. These affect people's day-to-day lives."

Barr's Trump Card

It all started with one congressman's outrage.

Barr saw permitting the medical use of marijuana as the first step toward letting anyone smoke dope. There was nothing he could do about the ballot initiatives scheduled in Alaska, Arizona, Oregon, Nevada and Washington state, and voters in those states approved medical marijuana measures this month.

But because he is a congressman, the Georgia Republican did have a trump card when it came to the District. He resolved to play it, because he had no doubt that voters in the city would support medical marijuana, too.

"Is there legitimate speculation to think, given Marion Barry's history and the liberal leanings of D.C. voters, that they've decided to fight drugs?" Barr said in a recent interview. "I doubt it."

Barr said his duty was to the people who elected him back home in Georgia's 7th District, which stretches from Atlanta to the Alabama line. "They don't want their taxpayer dollars used to legalize marijuana," he said.

With the end of the annual federal payment to the District, federal dollars increasingly go to specific uses, such as paying D.C.'s pension liability, not into the general budget that supports the board of elections. But one could argue that the federal contribution to pensions and other expenses frees locally raised dollars for purposes such as holding a referendum on medical marijuana.

According to election officials, the referendum cost less than $500.

Norton's Plea

Del. Eleanor Holmes Norton was bracing for Congress's annual attempt to attach amendments to the D.C. appropriations bill. The D.C. Democrat's job was to try to beat back the ones she believed intruded on home rule. By courtesy and custom, Norton received advance notice of proposed amendments. But she said she learned of Barr's amendment only after the budget debate was underway.

Norton, who cannot vote in Congress, raced to the Republican side of the aisle, where Barr was standing in line for the microphone to introduce his proposal. She begged him to drop the idea. He refused.

That left Norton with a decision to make: Should she request a roll-call vote, forcing members to go on the record?

She suspected the Republicans were looking for ways to embarrass Democrats. She didn't expect to win, so why put her allies on the hook? In an election year, a vote to let D.C. residents vote on medical marijuana easily could be depicted as support for medical marijuana itself, something many Democrats in fact oppose.

Barr's amendment was approved by a voice vote.

"This will go down in the annals of history as one of the most outrageous acts that Congress has ever done," Norton said last week.

The Activist's View

The medical community is undecided on the value of marijuana, and some doctors warn that its side effects may harm people whose immune systems are compromised.

Steve Michael resisted using marijuana until a few months before he died. By then, his body was wasting away for lack of nourishment, and doctors warned that he would suffer multiple organ failure if he couldn't keep some food down.

Michael smoked a small amount of marijuana, according to Turner, and it helped him start eating again.

But Turner remains skeptical of pot advocates who have an overly expansive view of the wonders of the weed. The drive to get the initiative on the ballot was never about advocating this particular medicine, he said. He sees it as a patients rights issue -- letting patients have access to a broader array of palliatives.

The initiative would change D.C. law to legalize possession and distribution of marijuana if recommended by a physician for serious illnesses, and it would require the city to provide affordable distribution to poor patients.

A National Institutes of Health panel said last year that there is evidence marijuana may be medically useful but that proof that it is more effective than legal drugs would require further study. A study this month in the journal Archives of Ophthalmology denied that marijuana is effective in treating glaucoma, one of the conditions that advocates say it helps.

The Bureaucrat's Dilemma

Alice P. Miller, executive director of the D.C. Board of Elections and Ethics, heard about Barr's amendment the day after Clinton signed the federal budget.

"Now what do we do?" she wondered.

One thing she couldn't do was stop the vote. Ballots had been printed, and technicians had begun the painstaking three-week process of combing the elections software for bugs. The software could not be manipulated to ignore medical marijuana votes.

Miller knew she must not appear to be leaning toward the home rule advocates on one side or Congress on the other. She had to follow the law.

But which law: Barr's amendment, instructing her not to spend money on an election, or home rule, bidding her to conduct elections?

The three-person elections board, to which Miller reports, decided it would not certify the result of the medical marijuana vote -- whatever the result happened to be. And it would stiff the printer for $165, the cost of printing the ballot question.

The Counsel's Call

When he heard of Barr's amendment a few days later, D.C. Corporation Counsel John M. Ferren said, "It took me a millisecond to realize this was unconstitutional, and there was no way I would support that."

Art Spitzer, legal director of the local ACLU, had alerted Ferren that the ACLU planned to sue the elections board for release of the results. As the District's chief lawyer, it is Ferren's duty to defend the city when it gets sued.

But Ferren, a former D.C. Court of Appeals judge, also is an advocate of home rule and a student of the constitution.

He decided to file papers joining the ACLU lawsuit. "I am offended," he said, "that my own vote cannot be counted."

The Rejected Check

After the polls closed, the activists went ahead with their post-election gathering in a house on Capitol Hill. It was neither a victory dance nor a wake. It was limbo.

Turner didn't know whether he had fulfilled his promise to his partner, Michael.

A preliminary hearing in the lawsuit came six days after the election. Turner sat at the plaintiff's table, flanked by attorneys, including Ferren and Spitzer.

This week, the Justice Department announced that it would enter the case to defend the constitutionality of Barr's amendment.

Also this week, U.S. Capitol Police officers ejected Turner and about 14 pro-democracy demonstrators from Barr's office, where they presented a check for $1.64 to pay for the labor of pushing a button on the computer to print out the election results.

Barr's staff refused to accept the check.

© Copyright 1998 The Washington Post Company

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