GET YOUR HANDS OFF THOSE BALLOTS

Good morning, and welcome to Democracy Held Hostage, Day 9.

My fellow Americans, who'd have thunk that the results of a free and fair
vote held nine days ago right here in the United States of America, the
land of the free, would be unknown to this day -- would be impounded, in
fact -- because Congress canceled the ballot initiative in question? Flat
out told the national capital to kiss its sweet electoral dreams goodbye?

As they say, if you live long enough, you see everything.

"Every single moment this vote is not counted is an injury to you, to me,
to everyone in this room," John M. Ferren, the District's corporation
counsel, told a federal judge on Monday, trying to coax him into ruling
that Congress had committed democracide and to let the city's results go.

Free the District 137,523!

That was the number of city citizens who went to the polls, foolishly
assuming they, too, were Americans who could decide for themselves -- as
Alaskans, Arizonans, Nevadans and state of Washingtonians did last week --
whether doctors ought to be able to recommend the use of marijuana to ease
the pain of serious illness, the issue posed by Initiative 59.

By now, we've long since heard answers from Alaska, Arizona, Nevada and
Washington state (yes, everywhere), but only silence leaks from the
District.

"Nobody heard us," Ferren told the judge, adding in reference to the four
states, "We'd like to be in their company."

It just doesn't get any better than this. In the long and sorry history of
Congress slashing the rights of District residents -- because it can, not
because it's right -- this is the encapsulating moment. A city that sought
to settle an issue by the most democratic means possible, a vote of its
people, has been thwarted by 535 men and women who surely view themselves
as the very symbol of liberty.

And do you hear any screams from beyond the city's confines?

If some junta in some banana republic canceled an election, you can bet
that the networks, the newsweeklies and the big and famous newspapers would
be all over that puppy, reporting the shocking insult to basic human
rights. But Alice P. Miller, the executive director of the Board of
Elections and Ethics, says no out-of-town media heavies
have queried her about how 137,523 citizens of this country have had their
votes snuffed.

That denial is "an offense to us as human beings," Ferren told the judge.

It started with U.S. Rep. Robert L. Barr Jr., a Georgia Republican
perhaps better known for craving the impeachment of President Lewinsky.
Barr proposed an amendment to stop the District from using money to conduct
the marijuana portion of the Nov. 3 election. Even though Miller says that
the cost of printing, advertising and tabulating Initiative 59 would be
less than $500, the amendment passed.

Barr didn't return a phone call seeking clarification of how Congress might
square the murder of an election with America's image as the very model of
the modern major democracy. But why should Barr call back? He doesn't have
to explain himself to city residents. They're not his constituents. They're
nobody's, at least nobody with formal power on the Hill.

Unfortunately for him, and Congress, final passage of the amendment didn't
come until after the city's ballots were printed, Miller says, so it was
too late to keep citizens from encountering Initiative 59 in the voting
booth and deciding it up or down. But it wasn't too late to stop the
release of the results.

Miller & Co. told the election board computer to skip Initiative 59 as it
disgorged results on Election Night for mayor, council and the other races
Congress somehow forgot to cancel as well. The board felt that not
releasing the results was a neutral act, and it's supposed to be neutral.
Besides, producing a tally could be construed as breaking the law, even
though that would require spending, oh, a dime's worth of paper. Congress
might get mad and do something terrible to the District.

Something additional, I mean.

So no human knows the outcome of the vote, Miller said. Only the computer
does. It sits in a locked, darkened, glass-walled cubicle at the election
board at One Judiciary Square. It isn't talking.

Here's the best part: Congress didn't need the Barr Amendment. Any
initiative passed by District residents must be reviewed by Congress
anyway. Maybe Congress felt that to exercise that power and overturn
certified election results would look ugly. But if there was no election at
all, no cold, clear numbers reflecting the wishes of real humans, it would
look better.

It doesn't.

Ferren and the American Civil Liberties Union argued in court Monday that
Congress has violated the First Amendment by denying District residents the
right to speak freely. That is what an election is: collective speech, the
sum of a community's thoughts about issues and candidates. In the
District's case, Congress can reject that speech after the fact by
overturning a law or an initiative -- an outrage, but legal -- but it
shouldn't be able to prevent the speech from taking place, which is what it
did.

Well, U.S. District Judge Richard W. Roberts wasn't bummed. He refused to
order the results released. He boldly scheduled a hearing.

It'll be Dec. 18. That'll be Democracy Held Hostage, Day 45.

To reach me on the Internet: twomeys@washpost.com