To vote or not to vote? That definitely is the question posed to the District of Columbia Court of Appeals when it comes to the legal definition of marriage within the District. But it’s mind-boggling that anyone even had to ask this question when the right of the people to vote is so obviously beyond question.
In 1977, by an overwhelming margin (83 percent), you (the residents of the District) went to the ballot box and voted to amend your charter - your “constitution” for the District. You voted to give yourselves the right to vote on any piece of legislation passed by the D.C. Council or any other piece of legislation you wanted to pass except on monetary matters. The language you enacted is clear: “The electors of the District of Columbia may propose laws (except laws appropriating funds) and present such proposed laws directly to the registered qualified electors of the District of Columbia for their approval or disapproval.” It doesn’t get any clearer than that.
With this vote, as has been described by the District courts, you, the citizens, made yourselves a co-extensive legislative power in the District. You, not the council, have the last and final word. Whether right or wrong, popular or unpopular, wise or unwise, you, the people, get the final say. If the council can pass it, you can repeal it. If you want to pass it, the council can’t stop you (again, except for appropriations matters). This is the system of government you put into place (with the approval of Congress), and it has been that way for almost the entire time the District has had home rule - until now.
Enter the new era of voting rights in the District, when the council thinks that it must no longer subject itself to your authority and oversight. Yes, your District government no longer respects your right to vote, as evidenced in arguments before the District Court of Appeals on Tuesday in the hotly contested case over the Marriage Initiative of 2009. In this case, the District government is arguing that it gets to determine what you, the citizens, do or don’t get to vote on.
In its brief to the court, the District’s attorney general even said that the council gets to determine what items are and are not “appropriate for direct democracy.” Such is their twisted interpretation of the charter language that, to you and me, is abundantly clear and does not give the council the ability to deny your right to vote. The council thinks that if it doesn’t want opposition on something, the members don’t have to endure it. They cast themselves as your new Big Brother, and under their regime, you only get to vote with their permission. The last time we saw that form of democracy was within the Soviet Union, where everyone went to vote, but the only person on the ballot was the Communist Party candidate.
The hope and expectation of the Alliance Defense Fund is that the District Court of Appeals will uphold your right to vote and restore a legitimate, democratic process to the District. A ruling against the people would be especially atrocious in the very place that the world looks to as the cradle of liberty.
Austin R. Nimocks is senior legal counsel with the Alliance Defense Fund and argued in favor of the people’s right to vote before the District of Columbia Court of Appeals on May