February 12, 2007
Voting Rights Bill Faces Constitutional Questions
This coming Thursday voting rights activists will fan out in the halls of Congress, hoping to convince staffers and members alike that legislation to grant the District a voting seat in the House of Representatives should be passed, and passed quickly. But they may face a challenge beyond what mere lobbying can resolve -- the U.S. Constitution.
In an op-ed published in the Post's Outlook section yesterday, Jeffrey L. Farrow, former co-chair of the President's Interagency Group on Puerto Rico from 1994 to 2001, warned that the legislation pending before the House -- which would grant both the District and Utah an additional voting seat -- was unconstitutional. He wrote:
District residents deserve a vote in the House -- but the bill is misguided. It is based on a novel interpretation of the Constitution. The theory is: Congress has such power concerning the District that it can ignore provisions of the Constitution when legislating regarding the District; in this case the provision that says the House is made up of representatives of the states.Essentially, until the District is made a state or a constitutional amendement is passed to grant it representatives and senators (an approach that was tried in 1978, but failed after the necessary number of states voted not to ratify), no amount of congressional intervention will fully enfranchise the city's 600,000 residents. Farrow's opinion follows that of the Congressional Research Service, which laid out the legal case against the legislation in a Jan. 24 report (found here in .PDF format). The report noted: "Although not beyond question, it would appear likely that Congress does not have authority to grant voting representation in the House of Representatives to the Delegate from the District of Columbia."
Voting rights activists see the case differently and have lined up a number of legal experts to vouch for the legislation's constitutionality. Writing in the Post last September, former solicitor general Kenneth Starr and former chief judge on the U.S. Court of Appeals for the D.C. Circuit Patricia Wald sided with the District, writing on the legislation: "It is consistent with fundamental constitutional principles; it is consistent with the language of Congress's constitutional power; and it is consistent with the governing legal precedents." Other legal backers include Viet Dinh, a former Assistant Attorney General from 2001 to 2003, and the D.C. Appleseed Center for Law and Justice.
At this point, it doesn't look like legal questions will derail the legislation. Most Democrats seem to side with the proposal, and a number Republicans have been swayed by knowing that a solidly red state like Utah would balance off the District's predictable Democratic tendencies. But chances are that this will end up before the courts, further delaying -- and maybe even doing away with -- a move towards resolving the District's second-class status. So no matter how hard the District and its residents lobby, it may be a while before they have a vote to call their own.
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If we're going to split semantic hairs and define what "state" means, I suggest District residents declare themselve a commonwealth like Virginia. And then secede from the Union. What follows will be the sort of infotainment that makes for a smashing film, starring Wesley Snipes as Adrian Fenty, Viveca Fox as Eleanor Holmes Norton, Susan Sarandon as Nancy Pelosi, and Ed Begley Junior as Jim Graham.
I've read that pro-vote bill and I thought it was stretching the precedent a bit. Nonetheless, I think they have enough of a case for them to get to the supreme court and lose.
All of which will play right into the hands of the pro-state crowd that is either publicly or privately against this bill. Nothing's more harmful to activists then partial success.
well written martin...sucks we're so screwed here. how 600,000 people can pay taxes, be drafted to fight in war, but not be allowed a representative vote should be unconstitutional.
"I've read that pro-vote bill and I thought it was stretching the precedent a bit. Nonetheless, I think they have enough of a case for them to get to the supreme court and lose."
Following that, all the bills passed in the meantime will be invalidated, creating legal pandemonium ...
Can hardly wait.
"Following that, all the bills passed in the meantime will be invalidated, creating legal pandemonium"
Well, I don't think that would be the case. First of all, bills in the house are rarely passed with a two vote margin. So they could invalidate the two congressmen's vote without invalidating legislation passed when they had the vote. Second, I kind of doubt they'd (the two congressmen that is) be allowed to fully vote until it was settled anyway.
As a DC resident I don't just see why residents advocate to rejoin Maryland (a la Arlington and Virgina). Thus we would get a representative and vote for senators. Sure there are cultural differences between MD and DC, but those differences exist between any large city and the surrounding area.
Sure there are cultural differences between MD and DC, but those differences exist between any large city and the surrounding area.
Nate, i think you'd be hard pressed to find any cultural differences between NE and SE DC and most of PG county. as a matter of fact, i think most would find it hard to determine where DC ends and where PG starts.
Same goes for most of MoCo - Connecticut Ave out to Chevy Chase or Wisconsin out to Bethesda, or Georgia Ave out to Silver Spring.
Cultural difference is most visible in the city to recent white transplants who in the past 5 years or so have moved to places like logan circle and columbia heights. And I'm not fully convinced that people like that even understand DC culture.
Simple reason why retrocession won't work.
MD doesn't want us back because we'd be adding one more massive failed school system and tons of other mess to their state.
And VA doesn't want the blacks and homosexuals in DC to be VA residents.
And DC residents don't want to be under the regressive and socially retarded laws in VA.
From a legal standpoint, I don't really see how retrocession would be any more legal than giving DC the vote as is.
You'd think Annapolis would want the tourist revenues generated by DC. Anyone have any ideas how much that is? And what about the millions in tax revenues generated by some of the highest priced real estate this side of Manhattan? How about that billion-plus dollar school budget? I'm sure Annapolis would love to declare victory in the DCPS battle, then send that cash elsewhere. Sure, you've got a big indigent population, but PG County absorbed much of that during DC's boom years anyway when they cut social programs.
The Constitution mentions DC along with other federal enclaves. All the other enclaves have voting rights within the states out of which they are created. Therefore, it would clearly be constitutional for DC residents to be given the vote as if DC was still part of Maryland. Doing so would not require making DC any more a part of maryland than it is now, since Congress has exclusive jurisdiction. Of course: Maryland--well Baltimore--might not like DC diluting votes for Senate. On the other hand, the MD Legislature might love having another 65 square miles to gerrymander. Yes: DC would not necessarily get a single representative--but then again, neither does Baltimore.
Jim
On the retrocession issue, the precedent is the return of Arlington and Alexandria to Virginia in 1846, but only after the Virginia legislature gave its consent. The legality of the retrocession was never formally determined by the Supreme Court, but the precedent requires maryland's consent.
And Maryland does not, in fact, want DC. Surveys showed that only 20 percent favor it. And no more that 20 % in DC favor it. So it is out. That is the answer.
Jim Titus. That is a good argument, but unfortunately it has been raised in the courts and it lost. The case was Adams v. Clinton. Google it. The District is different from the enclaves. That is the law.
The Davis Norton bill, sadly, is clearly unconstitional, and the next likely anvil to drop on it will be the Justice Department's testimony on the proposed bill in House or Senate Judiciary. If Justice finds it unconstitutional, you can expect a veto. It is very unlikely ever to get to the courts, let alone the Supreme Court. The only constitutional means for DC voting are constsitutional amendment, retrocession with the consent of Maryland, and statehood.
QUOTEWriting in the Post last September, former solicitor general Kenneth Starr and former chief judge on the U.S. Court of Appeals for the D.C. Circuit Patricia Wald sided with the District, writing on the legislation: "It is consistent with fundamental constitutional principles; it is consistent with the language of Congress's constitutional power; and it is consistent with the governing legal precedents." Other legal backers include Viet Dinh, a former Assistant Attorney General from 2001 to 2003. UNQUOTE
This is very funny. Judge Wald was in the Justice Department in 1978 and testified that a constitutional amendment was necessary to give DC voting representation. Her amendment failed, getting only 16 states. Why the flip flop? Dinh! The Washington Post reported that the Government Reform committee paid him, repeat PAID! him, $25,000 for his opinion. Neither Starr, nor Wald, nor Dinh showed up to answer questions at the House Judiciary Committee last year. Why not?
If you want to settle for a single voting Rep in the House, and no Senators, just put it into a Constitutional Amendment, with a law saying Utah gets its extra Rep and Electoral Vote on the day the Amendment is ratified. If there is bipartisan support, it will sail through.
I do not necessarily favor this, but I absolutely want it sent to DC voters for a referendum. Proposed Amendment One Representative shall be apportioned to the district constituting the seat of government of the United States, upon approval of this Article by a referendum of its people.
This solves all the constitutional issues, and the Rep would be permanent, not subject to removal by a future repeal of Davis norton.
What do you think?
Why did it not pass in 1978 - where they mostly republican states that voted against ratifying what would be perceived as a heavily democratic district - even under a Democratic Presidency?
BODYGUARDS Only 16 states ratified, and many never even brought it to a vote in the required 7 years. Republican states voted no or did not vote because it would have given the Democrats twonew Senators.