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  •   Georgia Cites Barry Case In Defense of Drug Tests

    By Joan Biskupic
    Washington Post Staff Writer
    Wednesday, January 15, 1997; Page A06

    Mayor Marion Barry made them do it.

    That's what Georgia state officials told the Supreme Court in defending their decision to require candidates for state office to submit to drug tests.

    The question for the justices, who heard oral arguments in the dispute yesterday, is whether the law violates a person's constitutional protection against unreasonable intrusions into his or her private life. The state law forces anyone running for statewide or legislative office to take a drug test and file a certificate indicating the results were negative before being able to get on the ballot.

    At stake is not only the fate of a unique Georgia law but broad federal principles that protect individuals who have done nothing to arouse suspicion from being subjected to government searches, mandatory drug tests or other means of ferreting out illegal behavior.

    Georgia argues that it needs to be able to test political candidates for drug use in part to save its state from the fate that befell the District of Columbia when Barry was convicted of cocaine possession in 1990.

    "Mayor Barry serves as a prime example of how the public's confidence and trust in its elected officials can be easily abused by such officials' involvement with illegal drugs," Georgia's brief says. "Surely Georgia has an important and legitimate interest in avoiding to the extent possible the identical problems."

    In oral arguments yesterday, Georgia Assistant Attorney General Patricia Guilday did not single out Barry but emphasized the need for public confidence in politicians.

    She said that as voters assess a candidate's integrity, "the information that a negative drug test gives to the public is significant."

    Three members of the Libertarian Party challenged the law in 1994 as a violation of their Fourth Amendment right to be free from unreasonable searches. (The high court previously has held that requiring a urine specimen is a "search" within the meaning of the Fourth Amendment.) The challengers also said the tests infringed on their First Amendment right to refuse such a test as a form of symbolic expression.

    "This test . . . involves cheap symbolism," said Walker L. Chandler, who represented himself and the other Libertarian candidates at the court yesterday. Chandler protested the drug test but took it anyway to get on the ballot for lieutenant governor. He lost the election.

    Overall, while many of the justices were frustrated by the arguments of Chandler – who presented himself as an earnest opponent of intrusive government but foundered on basic constitutional questions – they appeared more sympathetic to his position than to the state's.

    Justice Ruth Bader Ginsburg questioned whether the urine test, which can be taken any time during a 30-day period, was truly more symbolic than a means of catching illegal drug users. As such, she suggested, the government's interest would fail to override an individual's right to be protected from arbitrary intrusion.

    "Doesn't the Constitution come first?" Ginsburg asked.

    "Is there a special need here?" Justice Sandra Day O'Connor asked skeptically of the state's targeting political candidates to fight drug trafficking.

    Prior high court rulings generally have allowed drug searches only when there is some reason for government officers to suspect wrongdoing. But in recent years the court has upheld random drug testing for jobs in which the public's safety may be endangered.

    In 1995, a majority also ruled that public schools may force student athletes to submit to drug tests as a condition of participating in sports, arguing that students have fewer protections from searches than adults.

    Lower federal courts ruled against Chandler. The 11th U.S. Circuit Court of Appeals said candidates "must expect the voters to demand some disclosures about their physical, emotional, and mental fitness for the position" and concluded that governmental interests outweighed the intrusions on privacy.

    In his appeal, Chandler said no evidence exists of a problem with Georgia candidates using drugs. Perhaps reflecting the state's asserted worries about the District's problem, Chief Justice William H. Rehnquist asked Chandler whether it would be sufficient for Georgia to show that another state (the chief used Alabama) had a problem with officials using illegal drugs. Chandler said no.

    Justice Antonin Scalia, who attempted to carry much of Chandler's argument for him, said at one point, "This court looks a little more closely at totally suspicion-less searches, doesn't it?"

    Georgia argues in Chandler v. Miller that any burden on an individual is surpassed by the state's interests in fighting the scourge of illegal drugs. Guilday also said that the Constitution gives states great leeway to determine election conditions.

    © Copyright 1997 The Washington Post Company

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