District of Columbia vote in the United States House of Representatives

The District of Columbia has never had full voting representation in Congress. The district elects one Congressional Delegate (currently Eleanor Holmes Norton) who sits in the House of Representatives and votes in committee, but is barred from voting in the full House. Efforts are underway to give D.C. residents one full representative in the House, as if the district were a state. That proposal for a statute to enhance District of Columbia voting rights is called the "DC Vote" proposal. [ [http://www.dcvote.org/advocacy/dcvralegal.cfm DCVote.org] ]

Advocates of this approach contend that it is constitutional. Opponents assert that D.C. voting rights could only be constitutionally enhanced by other means.

The DC Vote proposal would not give the District of Columbia any representation in the Senate, but it would affect the Electoral College. Under the DC Vote proposal, the voting power of the district's citizens in presidential elections would remain at three electoral votes, pursuant to the 23rd Amendment. The DC Vote proposal, by awarding Utah another House seat, would give that state another electoral vote, at least temporarily.

Taxation and representation

The citizens of Washington, D.C., are able to vote in presidential elections, but they have no voting representative in Congress. Still, those citizens must pay federal taxes. The phrase "No taxation without representation!" was a rallying cry during the American Revolution, and it continues to be an argument in favor of granting D.C. a vote in the House. However, it is also an argument in favor of the various other solutions to this problem such as statehood, retrocession, and constitutional amendment.

The issue of taxation without representation in the District of Columbia is not new. For example, Chief Justice John Marshall addressed it in an 1820 opinion for the Supreme Court:

"The difference between requiring a continent, with an immense population, to submit to be taxed by a government having no common interest with it, separated from it by a vast ocean, restrained by no principle of apportionment, and associated with it by no common feelings; and permitting the representatives of the American people, under the restrictions of our constitution, to tax a part of the society...which has voluntarily relinquished the right of representation, and has adopted the whole body of Congress for its legitimate government, as is the case with the district, is too obvious not to present itself to the minds of all. Although in theory it might be more congenial to the spirit of our institutions to admit a representative from the district, it may be doubted whether, in fact, its interests would be rendered thereby the more secure; and certainly the constitution does not consider their want of a representative in Congress as exempting it from equal taxation." [ [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=18&invol=317 "Loughborough v. Blake", 18 U.S. 317 (1820)] (also mentioning that "representation is not made the foundation of taxation").]

In the years since Marshall wrote those words, the District of Columbia has achieved increased self-government, committee representation in the House of Representatives, as well as voting rights in presidential elections. Only citizens of Wyoming currently have more voting power per capita in presidential elections than D.C. citizens.

Primary constitutional provisions at issue

The "DC Vote" solution would give D.C. citizens a vote in Congress by a simple statute like the District of Columbia House Voting Rights Act of 2007, but the constitutionality of this solution is disputed. There is widespread agreement that similar results could be achieved constitutionally by (1) granting full statehood to Washington D.C., or (2) retroceding territory of Washington D.C. back to the State of Maryland, or (3) adopting a constitutional amendment granting Washington D.C. a vote in the House of Representatives.

Objections to the DC Vote proposal are primarily based upon the second sentence of the U.S. Constitution (after the Preamble), which states:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

One of the legal issues now is whether Congress has authority, by statute, to affect how () of the Constitution should be interpreted or applied. Proponents of a statute giving Washington D.C. a vote in the House say that Congress has the requisite authority under , Clause 17 of the Constitution:

The Congress shall have Power....To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States....

Chief Justice John Marshall wrote as long ago as 1805 that Congress can use its Article I power to give DC citizens access to federal courts in order to sue citizens of other states, even though that jurisdiction is not explicitly catalogued in . ["Hepburn v. Ellzey", [http://press-pubs.uchicago.edu/founders/documents/a1_8_17s12.html 6 U.S. 445] (1805): "The question in this case is, whether the plaintiffs, as residents of the District of Columbia, can maintain an action in the circuit court of the United States for the district of Virginia. This depends on the act of congress describing the jurisdiction of that court.... this is a subject for legislative, not for judicial consideration." It is unclear whether Marshall believed that the catalogue of controversies in Article III was not exclusive, or instead believed that Congress could use its Article I power to convert controversies involving D.C. citizens into federal questions (that would then be covered by the catalogue in Article III).] Congress eventually granted such jurisdiction, in 1940, and that act was later upheld by the Supreme Court."National Mutual Insurance v. Tidewater", [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=337&invol=582 337 U.S. 582] (1949). This was a 5-4 decision, and the five justices in the majority could not agree on the rationale. Justice Jackson, joined by Justices Black and Burton, wrote: "We ... decline to overrule the opinion of Chief Justice Marshall, and we hold that the District of Columbia is not a state within Article III of the Constitution. In other words, cases between citizens of the District and those of the states were not included in the catalogue of controversies over which the Congress could give jurisdiction to the federal courts by virtue of Art. III. This conclusion does not, however, determine that Congress lacks power under other provisions of the Constitution to enact this legislation." This last contention was opposed by every other justice, who argued that it would allow Congress to circumvent the "case or controversy" requirement of Article III. The other two judges in the majority (besides Jackson, Black, and Burton) were Justices Rutledge and Murphy who argued that Washington D.C. is a "state" within the meaning of Article III, Section 2; all seven of the other justices disagreed with Rutledge and Murphy on this point.]

There are other pertinent constitutional provisions as well. The following words can be found in both of the original unamended Constitution, as well as in Section 2 of the Fourteenth Amendment: "Representatives ... shall be apportioned among the several States ... according to their respective Numbers...."

The Twenty-third Amendment to the United States Constitution is also relevant, since it gives D.C. residents a vote in presidential elections as "if it were a state." Likewise, is relevant, since it gives Congress power to grant statehood:

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

These are the primary pertinent parts of the Constitution. But, there are other constitutional provisions that may come into play too (e.g. the provisions in Article V related to new amendments).

Legal arguments for and against

Professor Jonathan Turley testified on September 14, 2006, at House Judiciary Committee Hearings on this subject, [House Judiciary Committee, Subcommittee on the Constitution, [http://judiciary.house.gov/Hearings.aspx?ID=153 Legislative Hearing on H.R. 5388, the "District of Columbia Fair and Equal House Voting Rights Act of 2006] ] and Turley has also been quoted in the press:

Jonathan Turley, George Washington University law professor, believes the D.C. portion of the bill is "flagrantly unconstitutional" because the Constitution gives representation to "the people of the several states."

It would take a constitutional amendment to give the district unquestioned congressional and Senate representation, he said. Addressing it legislatively means another Congress could always revoke the voting privilege later.

"This is the equivalent of having Rosa Parks go to the middle of the bus, the ultimate compromise of principle," he said, referring to the civil rights protest Parks launched when she refused to move to the back of a bus, as required by Jim Crow laws. "Either D.C. residents are entitled to be full citizens or not." [Johanna Neuman, [http://www.latimes.com/news/nationworld/nation/la-na-dcvote22nov22,1,4035948.story?coll=la-headlines-nation&track=crosspromo Plan would give D.C. a House vote] , Los Angeles Times (November 22, 2006)]

Other constitutional law experts have reached a different conclusion. For example, Patricia Wald and Kenneth Starr have written: "There is nothing in our Constitution's history or its fundamental principles suggesting that the Framers intended to deny the precious right to vote to those who live in the capital of the great democracy they founded." [Patricia Wald and Kenneth Starr, [http://www.washingtonpost.com/wp-dyn/content/article/2006/09/15/AR2006091500935.html Congress Has the Authority to Do Right by D.C.] , "Washington Post" (September 17, 2006). "Contra" Matthew Franck, [http://article.nationalreview.com/?q=YzlmZDJiYzY2MThjZjA3Yzg0YzJlMTUyYmYwYTNlMDA= Hammering to Fit] , "National Review" (September 18, 2006)(rebutting Wald and Starr)] Viet Dinh and Adam Charnes have also written on this subject, in favor of a statutorily granted House vote to the District of Columbia.Viet Dinh and Adam Charnes, [http://www.dcvote.org/pdfs/congress/vietdinh112004.pdf The Authority of Congress to Enact Legislation to Provide the District of Columbia With Voting Representation in the House of Representatives] (November 2004)] Turley calls the analyses of Starr and Dinh, "uncharacteristically liberal interpretations of the text of Article I."Jonathan Turley, [http://judiciary.house.gov/media/pdfs/turley091406.pdf Statement for the Record] , Legislative Hearing on H.R. 5388, the "District of Columbia Fair and Equal House Voting Rights Act of 2006 (September 14, 2006). It seems to be an uncharacteristic interpretation even for Wald. See "Representation for the District of Columbia: Hearings Before the Subcomm. on Civil and Constitutional Rights of the Comm. on the Judiciary", 95th Cong. 131 (1978) (statement of Assistant Attorney General Patricia M. Wald opining that "Article I was in part intended precisely to distinguish the Federal District from the States," and that "we do not believe that the word 'State' as used in Article I can fairly be construed to include the District under any theory of 'nominal statehood'").]

Supporters of the DC Vote solution rely on the Supreme Court’s opinion in "National Mutual Insurance v. Tidewater" for the idea that Washington D.C. can be treated as a "state" for purposes of Article I of the Constitution. However, opponents of the DC Vote solution argue that seven of nine justices in the "Tidewater" case rejected the view that Washington, D.C., is a “state” for purposes of Article III of the Constitution. Supporters of the DC Vote solution also rely on "Tidewater" for the idea that the language of Article III ("judicial Power shall extend to...") allows Congress to extend the judicial power farther than what is spelled out in Article III, and therefore they say that the language of Article I ("House of Representatives shall be composed of...") should likewise allow Congress to supplement the composition of the House beyond what is spelled out in Article I. However, opponents of the DC Vote solution argue that six of nine justices in the "Tidewater" case rejected the view that the language of Article III can be supplemented in that way; also, the language of Article I ("shall be composed of") is different from the language in Article III ("shall extend to").

Even in the absence of an enfranchising federal statute, some DC citizens have argued that their disenfranchisement is unconstitutional. But, that argument was rejected in the case of "Adams v. Clinton", [ [http://www.dccitizensfordemocracy.org/98-1665-majority.htm "Adams v. Clinton", 90 F. Supp. 2d 35 (2000), aff’d, 531 U.S. 941 (2000)] , (citations omitted)] in which the federal district court stated:

Such evidence as does exist ... indicates a contemporary understanding that residents of the District would not have a vote in the national Congress. At the New York ratifying convention, for example, Thomas Tredwell argued that " [t] he plan of the federal city, sir, departs from every principle of freedom . . . subjecting the inhabitants of that district to the exclusive legislation of Congress, in whose appointment they have no share or vote."

In contrast, there is no direct evidence that any of the framers believed that citizens of the federal district could have a vote in Congress. According to John Fortier, "Only the people of the states may choose members of Congress, and the District of Columbia is not a state. This language is confirmed again and again in the Constitution...." [John Fortier, [http://www.hillnews.com/thehill/export/TheHill/Comment/JohnFortier/051706.html D.C. Colony] , "The Hill" (May 17, 2006).]

Even if a statute could legitimately give the District of Columbia a vote in only one of the two houses of Congress, questions would remain about the legitimacy of apportioning an additional representative for Utah] During his 2004 campaign for President, Senator John Kerry declined to support the DC Vote proposal: "I would not sign the congressman's bill into law because I think that bill would create all kinds of side issues about reapportionment across the country....Given the current games that have been played with that, I think that would be very dangerous." [Spencer S. Hsu, [http://www.washingtonpost.com/wp-dyn/articles/A28362-2004May14.html Kerry Skeptical of Bill on D.C. Vote] , Washington Post (May 15, 2004)]

On January 24, 2007, the Congressional Research Service (CRS) issued a report [Thomas, Kenneth. [http://www.opencrs.com/rpts/RL33824_20070124.pdf CRS Report for Congress: The Constitutionality of Awarding the Delegate for the District of Columbia a Vote in the House of Representatives of the Committee of the Whole] .] on this subject. According to the CRS, "it would appear likely that the Congress does not have authority to grant voting representation in the House of Representatives to the District." [Sheridan, Mary Beth. " [http://www.washingtonpost.com/wp-dyn/content/article/2007/02/12/AR2007021201462.html Report Questions Constitutionality of Giving D.C. a Vote] ," "Washington Post" (2007-02-13).]

Legislation

Bills to give Washington, D.C., full voting representation in the House of Representatives have been introduced in the past, and such a bill is also pending.

District of Columbia Fair and Equal House Voting Rights Act of 2006

The "District of Columbia Fair and Equal House Voting Rights Act of 2006" (USBill|109|H.R.|5388) was a bill to give the District of Columbia voting representation in the United States House of Representatives. The bill was proposed by Rep. Thomas M. Davis (R) of Virginia. This bill was not brought up for a vote in the 109th Congress. [See [http://www.npr.org/templates/story/story.php?storyId=5398824 Plan Would Bring House Vote to D.C.] , NPR (May 11, 2006)]

District of Columbia House Voting Rights Act of 2007

In the 110th Congress, the "DC Fair and Equal House Voting Rights Act of 2007" (USBill|110|H.R.|328) would give the District of Columbia its first and only representative in the House of Representatives with full voting privileges. [cite news | author= Sheridan, Mary Beth | url=http://www.washingtonpost.com/wp-dyn/content/article/2007/01/09/AR2007010901512.html | title=Bill to Give D.C. a Full Vote Is Revived] | publisher=Washington Post | date=2007-01-10] The number of House members may be altered by statute, and has generally increased through the nation's history.

The bill would eliminate the District's congressional delegate seat, and permanently increase the size of the House by two seats, from 435 to 437. One new seat would go to the District of Columbia, and would almost certainly be occupied by a Democrat. Another new seat would go to Utah until the reapportionment due to take place following the 2010 census. Utah fell just a few hundred residents short of a fourth House seat in the 2000 census, and the Utah seat would almost certainly go to a Republican.

This change would thus have an impact on the Electoral College: while the District's number of electoral votes would remain unchanged, Utah would gain one additional elector until the reapportionment due to take place following the 2010 census as stated above. Since the District already has one electoral vote for the House member it would have if it were a state, and two electoral votes for the Senators it would have if it were a state, the bill would create only one more electoral vote, which would go to whichever state has the new seat. One additional electoral vote would also bring the total number of electoral votes to 539, making a tie less likely. Under this proposal, the District would be treated differently than a state for purposes of House representation — the bill specifically states that the number of House members from the District cannot exceed one, regardless of population. This is consistent with how the District is treated under the Twenty-third Amendment, which limits the District's electoral votes to the number which the least-populous state is eligible to cast, i.e., one for its representative and one each for each senator.

On March 13, 2007, USBill|110|H.R.|1433, the "District of Columbia House Voting Rights Act of 2007" passed the House Committee on Oversight and Government Reform by a vote of 24-5.cite news | title=Bill to Give D.C. Full House Vote Advances | author=Sheridan, Mary Beth | publisher=Washington Post | date=March 14, 2007 | page=B01 | url=http://www.washingtonpost.com/wp-dyn/content/article/2007/03/13/AR2007031300760.html] .

The House Judiciary Committee approved H.R. 1433 on March 15 by a vote of 21-13, whereupon the White House announced its opposition. [cite news | author=Struglinski, Suzanne & Bernick, Robert | url=http://deseretnews.com/dn/view/0,1249,660203827,00.html | title=White House opposes bill that would give Utah a 4th congressional seat | publisher=Deseret News | date=2007-03-16]

A new version of the bill - USBill|110|H.R.|1905 - was passed by the full House on April 19 by a vote of 241-177.

This new version is technically pending in the Senate (see below regarding Cloture). [ [http://clerk.house.gov/evs/2007/roll231.xml House Roll Call Vote] ] [cite news | title=House Approves A Full D.C. Seat: Biggest Step Toward Vote Since '70s; Bill Faces High Hurdles in the Senate | author=Sheridan, Mary Beth |coauthors=Woodlee, Yolonda | publisher=Washington Post | date=2007-04-20 | page=A01 | url=http://www.washingtonpost.com/wp-dyn/content/article/2007/04/19/AR2007041902849.html] [cite web | title=From CQ Today: House Passes D.C. Voting Rights Bill | author=Michael Teitelbaum |coauthors=Richard Rubin | publisher=New York Times | date=April 19, 2007 | url=http://www.nytimes.com/cq/2007/04/19/cq_2595.html] The Senate bill is sponsored by Joseph Lieberman of Connecticut, and Orrin Hatch of Utah. [Sheriden, Mary Beth. " [http://www.washingtonpost.com/wp-dyn/content/article/2007/05/01/AR2007050101267_pf.html D.C. Vote Bill Gets Key GOP Support] " in "Washington Post" (2007-05-02).] Lieberman chaired a committee hearing of the U.S. Senate Committee on Homeland Security and Governmental Affairs on May 15, [ [http://www.senate.gov/~govt-aff/index.cfm?Fuseaction=Hearings.Detail&HearingID=444 May 15 Senate Hearing.] ] and the Senate bill (USBill|110|S.|1257) cleared that committee in June 2007 by a vote of 9-1, with Senator Susan Collins of Maine saying that the questions about constitutionality should not delay passage of the bill. [U.S. Senate Committee on Homeland Security and Governmental Affairs, [http://www.senate.gov/~govt-aff/index.cfm?FuseAction=PressReleases.Detail&Affiliation=C&PressRelease_id=1483&Month=6&Year=2007 Press Release] (2007-06-13).] The Senate Judiciary Committee had a similar hearing on May 23. [ [http://www.judiciary.senate.gov/hearing.cfm?id=2789 May 23 Senate hearing.] ]

The Senate considered ending debate (invoke cloture) on this bill on September 18, 2007. The motion failed, because only 57 Senators voted for the motion (60 needed for passage). [ [http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110&session=1&vote=00339 U.S. Senate: Legislation & Records Home > Votes > Roll Call Vote ] ]

References

ee also

*District of Columbia home rule
*District of Columbia voting rights
*Retrocession (District of Columbia)

External links

*Fauntroy, Michael. " [http://www.dcvote.org/trellis/denial/DistrictofColumbiaDelegatestoCongress.cfm History and powers of DC's Delegate to Congress] ", Congressional Research Service (2001-04-04).
*Will, George. [http://www.washingtonpost.com/wp-dyn/content/article/2007/03/28/AR2007032801879.html The Seat Congress Can't Offer] , "Washington Post" (2007-03-29).
*Pence, Mike. [http://www.humanevents.com/article.php?id=19858 Why I Voted for D.C. Representation in the House] , "Human Events" (2007-03-17).
*"Wall Street Journal". [http://www.opinionjournal.com/editorial/feature.html?id=110009822 D.C. Con] , editorial (2007-03-23).
*"Los Angeles Times". [http://www.latimes.com/news/printedition/asection/la-ed-dcvote23mar23,1,3223092.story?coll=la-news-a_section Give D.C. representation] , editorial (2007-03-23).