The D.C. Voting Rights Act.

The law, lawyers, and the court.
Jan. 28 2009 1:50 PM

Let Them Into the House

The D.C. Voting Rights Act is probably unconstitutional. Congress should pass it.

The United States Constitution.
The United States Constitution

As of this week, Washington, D.C., has its own state quarter and its best shot in memory at gaining the right to vote for one full-fledged member of Congress. Such a bill is currently working its way through the House and Senate. If the measure passes, there's a good chance the Supreme Court will strike it down as unconstitutional. But Congress should still pass and President Obama should still sign the District of Columbia House Voting Rights Act of 2009 as a major step toward ending the "taxation without representation" of D.C. residents.

Supporters of D.C. voting rights have pushed for years to get a bill like this through Congress. (D.C. residents already have a delegate, Eleanor Holmes Norton, who can serve on committees but when it counts can't vote on final bills.) The district's supporters came close in 2007 with a measure that also would have created a new congressional seat for Utah (which was next in line among the states, given congressional reapportionment earlier this decade). Despite this neat attempt at partisan balance (a Democrat for D.C., a Republican for Utah), Republicans filibustered the measure after a threatened veto by President George W. Bush. Things are different this time. President Barack Obama co-sponsored the 2007 version of the bill, and the current one in the Senate is worded identically. There's a chance supporters can muster 60 votes in the Senate to defeat a filibuster.

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If that political battle is won, the war will shift to the courts, where it faces uncertain prospects. The constitutional claim against the D.C. Voting Rights Act is that Congress lacks the power to create a new congressional seat for the district. There's a strong textual argument for this position, advanced by George Washington University law professor Jonathan Turley and others. Article I, Section 2 of the Constitution provides that "[t]he House of Representatives shall be composed of members chosen every second year by the people of the several states …" and there's no question that Washington, D.C., is not a state. Congress cannot amend the Constitution through ordinary legislation simply by calling D.C. a "state," and therefore the D.C. act is ostensibly unconstitutional. Supporters like Turley have backed up their arguments with extensive historical analysis based on the Framers' intent in giving the District of Columbia its odd status.

Perhaps surprisingly, some conservative heavy hitters (who tend to favor textualist and originalist interpretations of the Constitution) nonetheless have come out in favor of the constitutionality of the measure. Ken Starr has argued that Article I elsewhere, in what's called the District Clause, authorizes House representation for the district by providing that "[t]he Congress shall have power … to exercise exclusive legislation in all cases whatsoever" over the District of Columbia. Professor Viet Dinh, who worked as an assistant attorney general in the Bush administration, has made similar arguments that Congress' power under this Clause is plenary, and he backs it up with his own analysis of the Framers' intent.

The debate also centers on an obscure 1949 Supreme Court case, National Mutual Insurance Co. v. Tidewater Transfer Co.Tidewater considered the constitutionality of a 1940 congressional statute, which provided that federal courts should consider residents of Washington, D.C., as coming from "states" for purposes of "diversity jurisdiction." (That's the legal framework that allows federal courts to hear cases arising under state law when a resident of one state sues the resident of another.) In a fractured decision, the Supreme Court upheld the 1940 law, despite an earlier 1805 Supreme Court ruling holding that D.C. residents could not be considered residents of states for diversity jurisdiction purposes.

Three of the justices in the majority in Tidewater relied on Article I's District Clause in reaching their conclusion, and supporters of the current D.C. voting rights legislation say Tidewater supports their position that Congress, broadly speaking, has the power to treat D.C. as a state. Opponents counter that there was no majority opinion in Tidewater and that even the three justices who relied on the District Clause would have found the current voting rights legislation unconstitutional. These justices "took pains to note the limited aspect of their holding" as not extending to fundamental rights. The nonpartisan and well-respected Congressional Research Service read Tidewater this way in a 2007 report, noting that at least six of the Tidewater justices "authored opinions rejecting the proposition that Congress's power under the District Clause was sufficient to effectuate structural changes in federal government" and suggesting that perhaps all nine justices would have agreed on the unconstitutionality of the D.C. bill.

If the current D.C. voting rights law is indeed unconstitutional, then the only way to get D.C. a full House member is the way that gave district residents the right to vote for president: a constitutional amendment that would either make D.C. a state, give it a member of Congress (and possibly two senators) without making it a state, or merge D.C. back into a neighboring state, such as Maryland. But constitutional amendments are extremely difficult to pass, requiring a vote of two-thirds of Congress and three-fourths of the states. With a country preoccupied by the most serious economic troubles of our lifetimes and two wars, voting rights for D.C. is not at the top of the list. Despite broad public support for some form of voting rights for D.C., the forces of inertia are strong.

This is precisely why Congress should pass the current law, even if it is likely to be struck down by the Supreme Court. Rejection by the court would put the issue on the front burner. Obama could then push for quick passage of a constitutional amendment in Congress and the states. He could remind people that many of our most important advances to voting rights have come through constitutional amendment, including enfranchisement of African-Americans, women, 18-year-olds, D.C. residents (in presidential elections), and those too poor to pay a poll tax to vote in federal elections.

The lack of voting rights for residents of Washington, D.C., is an example of what law professors call "constitutional stupidities." Given this country's commitment to equal voting rights for all, there's no legitimate policy reason to deny congressional representation to the District's residents. If that's right, then the only argument I can see against a vote for the D.C. bill is that it could be viewed as violating the oath taken by members of Congress and the president to uphold the Constitution. But with legitimate arguments by credible legal scholars in favor of the bill, the constitutional question is not settled. Members of Congress can vote for D.C. voting rights in good conscience. Then we'll see what happens next.

Richard L. Hasen is a professor of law and political science at the UC–Irvine School of Law and is writing a book on campaign finance and political equality. Follow him on Twitter.

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