This just arrived and VIP can claim victory.
U.S. District Judge Richard Roberts ruled that 1) the Barr amendment (prohibiting the District from "conducting any ballot initiative" that would reduce penalties associated with marijuana) on its face did not prevent the counting of votes and the certification of election results, and 2) even if the Barr amendment were broadly construed to apply to the counting and certification of votes, that would violate the First Amendment rights of D.C. voters.
Although Judge Roberts characterized his ruling as based on the First Amendment (in that he equated voting as a First Amendment right as opposed to a right independent of the First Amendment), he essentially adopted our argument on two points (although he didn't cite our brief or mention VIP):
First, under the Constitution's structure, "the way government accomplishes its purposes matters. In legislating for the District, Congress is as bound by the Constitution as when it legislates for the country as a whole." Also, "Congress's power over the District did not change the fundamental nature and meaning of the acts of lawful voting and communicating voting results."
Second, "to cast a lawful vote only to be told that the vote will not be counted or released is to rob the vote of any communicative meaning whatsoever. Speaking within the context of a congressional election, the Supreme Court specifically stated that 'obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted.' [citing United States v. Classic and emphasis by Judge Roberts]. If the Barr Amendment were to keep the votes on Initiative 59 from being released and certified, the vote would be a muzzled expression and a meaningless right. Such a restriction on the vote would be severe and would appropriately trigger strict scrutiny."
I note that the ACLU made a strictly first amendment "right to communicate through voting" argument; we argued that there is a fundamental right to have lawfully cast votes counted and certified as part of the right to vote, and cited Classic (which the ACLU did not). In essence, the Judge melded the ACLU's argument and our own.
Interestingly, the Judge distinguished between voting (as the "election") and counting and certifying, which he characterized as after the fact ministerial acts. That may be useful in our early voting litigation.