Constitutional Experts Debate D.C. Vote
Last September, former D.C. Circuit Judges Patricia Wald and Ken Starr argued that the Constitution grants Congress the power to extent voting rights to D.C. residents:
Congress's specific power over the District of Columbia is one of the broadest of all its powers. In the words of the Constitution, "Congress shall have power . . . to exercise exclusive legislation in all cases whatsoever" over the District. In a 1984 case decided by the U.S. Court of Appeals for the D.C. Circuit, on which we both sat, Judge Abner Mikva noted that through this constitutional provision, the Framers gave Congress "a unique and sovereign power" over the District. In that same case, Judge (now Justice) Antonin Scalia wrote that the broad language of the power gave Congress "extraordinary and plenary" power over our nation's capital. And in another case, that same court held that this broad power gave Congress authority to "provide for the general welfare of citizens within the District of Columbia by any and every act of legislation which it may deem conducive to that end." It is hard to imagine a broader, more comprehensive congressional power than this; and it is also hard to imagine that the power could not be used to advance a fundamental principle of our Constitution -- that the right to vote should be extended to all citizens.
A recent report by the Congressional Research Service, however, takes the opposite viewpoint:
It is true that the power of the Congress over the District of Columbia has been described as “plenary.” To a large extent, this is because the power of the Congress over the District blends the limited powers of a national legislature with the broader powers associated with a local legislature. Thus, for instance, some constitutional restrictions that might bind Congress in the exercise of its national power would not apply to legislation which is limited to the District of Columbia. For example, when Congress created local courts for the District of Columbia, it acted pursuant to its power under the District Clause and thus was not bound by to comply with Article III requirements which generally apply to federal courts. Or, while there are limits to Congress ability to delegate its legislative authorities, such limitations do not apply when Congress delegates its local political authority over the District to District residents.It is not clear, however, that the power of Congress at issue in H.R. 328 would be easily characterized as falling within Congress’ power to legislate under the District Clause. While the existing practice of allowing District of Columbia residents to vote for a non-voting Delegate would appear to fall comfortably within its authority under the District Clause, giving such Delegate a vote in the House would arguably have an effect that went beyond District of Columbia. Such a change would not just affect the residents of the District of Columbia, but would also directly affect the structure of and the exercise of power by Congress. More significantly, if the Delegate were to cast the decisive vote on an issue of national import, then the instant legislation could have a significant effect nationwide.
ACS is hosting a lunchtime panel of legal experts on both sides of this issue this Thursday, February 15th, in Washington, D.C.
Written By:KipEsquire On February 13, 2007 5:24 PM Written By:rick On February 13, 2007 10:51 PM
Please note that there is discussion about moving our capitol to another state, the probable argument for the move will undoubtedly be along the lines of terrorism from the ocean. Can congress force the same constitutional authority after the move or could this be a ploy to escape the watchful authority of congress and the constitution in matters of white house policy?
It seems to me that the constitution either (a) bars D.C. from having a representative (since representatives are available only to "states"), under the specific constitutional provision cited by the CRS, or, (b) if that specific provision does not control (as Starr and Wald seem to say), then it permits D.C. residents to have a representative only to the extent permitted by general equal-protection principles.
The District of Columbia has fewer voters than all 50 states, and fewer people living in it than 49 of the 50 states (and in a few years, it will have fewer people than all 50 states).
An argument could be made that District residents should nevertheless receive a representative in the House.
But the District has 400,000 fewer people than Montana, which only has one representative in the House. The District's population is smaller than the size of the typical House district.
Why should the District also receive one representative, when its population is similar to cities like Las Vegas and El Paso, which don't have a representative all to themselves (they have to share their representative with surrounding suburbs)?
After all, in Baker v. Carr, the Supreme Court read into the constitution the principle that each vote should have roughly equal weight, and in Bolling v. Sharpe, the Court held that equal-protection principles are read into the Due Process Clause of the Fifth Amendment and thus govern the federal government as well.
Thus, a vote cast in the District should not count for more than a vote cast in El Paso, which has more people than the District, but doesn't have a representative all to itself.
To keep that from happening, perhaps the District should receive a representative who has only a fractional vote (like one-half of a vote), rather than a full vote, in the House -- allowing the representative to break ties that would otherwise occur, but not to tip the balance to a tie where a measure would otherwise pass (or fail) by one vote.
An easier issue is presented by the question of whether D.C. should be treated like a state when it comes to representation in the Senate (meaning it would receive 2 senators). It obviously should not receive full representation in the Senate.
Why should the District, which has less than 0.2 percent of the nation's population, fewer voters than any of the 50 states, and fewer residents than 49 of the 50 states, receive 2 percent of the senate (that is, 2 senators out of 102?)?
That's 10 times what it would be entitled to based on population alone.
It is already inequitable that underpopulated states like Wyoming and Vermont receive just as many senators as populous states like California and New York, meaning that the vote of an individual California voter has much less weight than the vote of a Vermont voter.
But that inequity, unfortunately, can't be changed, since the constitution mandates that the constitution can't be amended to dilute a state's equal representation in the Senate, and this specific provision overrides the more general equal-protection principle that each vote is entitled to equal weight.
But the District is not a state, so, thankfully, we don't have to put up with that unfair result with respect to the District.
Indeed, we don't have to give D.C. any senators at all.
Note that D.C. is already overrepresented in the Electoral College, where it receives 3 of 538 electoral votes (0.6 percent of the votes) even though it has only 0.2 percent of the nation's population.
That overrepresentation in the Electoral College arguably offsets its lack of representation in Congress.
Hans Haber. Contrary to your statement, the District of Columbia does NOT have fewer voters than all 50 states. Wyoming has fewer voters than DC. So there is no equal protection basis on which DC should get a fractional vote, if Wyoming, with fewer residents, gets a vote to itself. This seems to eliminate the factual basis for the argument for a fractional vote. The suggestion for a fractional vote for DC, a jurisdiction with an African-American majority, is very disturbing. The only precedent for fractional voting in the constitution that I recall was the clause that counted persons held in service (slaves) as three fifths of a person for apportionment, while of course denying them the right to vote. Fractional voting is a very bad idea in the light of this shameful aspect of our constitutional history.
Hans Haber. Overrepresentation in the Electoral College does not even to begin to offset DC's lack of representation in Congress. Presidents do not even have positive legislative powers under the Constitution. Unlike other governments, the administration cannot even introduce a bill, but must ask a Member to act for it. The President's only legislative role under the Constitution is to exercise a veto, and even that is subject to override. All other voters can appeal to a voting Representative and two voting Senators who are elected to represent them and them only. DC residents are represented by no one.
Hans Haber asks Why should the District, which has less than 0.2 percent of the nation's population, fewer voters than any of the 50 states, and fewer residents than 49 of the 50 states, receive 2 percent of the senate (that is, 2 senators out of 102?)?
This is kind of funny. The rules have applied to everyone else for over 200 years, but suddenly there is a problem with proportional representation, which must be imposed just on DC. This is like the National League, which has played with nine players on a side since 1876, suddenly telling the Washington Nationals that it is unfair for small cities to have the same number of players as large ones. So the league says the DC team can join, but only if it plays only three men at a time.
I think that is called changing the rules in the middle of the game, and enforcing the new rules only on the newcomer.
Hans Haber says DC has fewer voters than any of the 50 states, and fewer residents than 49 of the 50 states, thus distinguishing voters from residents. Just for the record, the Constitution expressly requires representation on the basis of persons, not voters. It is in section 2 of the Fourteenth Amendment, which provides for apportionment of representatives to the several states according to their respective numbers, counting the whole number of persons in each state.
Hans Bader writes that “Indeed, we don't have to give D.C. any senators at all.†That may well be, but I am asking for the principled basis for this position, not for the accidents of history.
I start from the principles that a government derives its just powers from the consent of the governed, and that all persons within its jurisdiction are entitled to equal protection of the laws. Denial of any vote whatsoever to DC violates these principles.
The arguments that DC is too small in area or population are irrelevant. The constitution does not deny representation because of size, since Rhode Island and Alaska are both represented, nor because of population, since Wyoming and California are both represented. The Constitution does not deny representation because there are some imbalances.
So it is not enough to say that DC is not a state, or the founders denied it a vote. The opponents of DC voting rights have not set out any principled reasons why DC should not vote.
I support DC voting rights, but I think the Davis-Norton bill is invalid because the only constitutional means are constitutional amendment, statehood, or retrocession with the consent of Maryland.
Hans Bader wrote that, after all, in Baker v. Carr, the Supreme Court read into the constitution the principle that each vote should have roughly equal weight, and in Bolling v. Sharpe, the Court held that equal-protection principles are read into the Due Process Clause of the Fifth Amendment and thus govern the federal government as well. Thus, a vote cast in the District should not count for more than a vote cast in El Paso, which has more people than the District, but doesn't have a representative all to itself.
I do not see how El Paso voters would have an equal protection argument against the Davis Norton bill. Each person there wopuld get one vote, just like each person in DC. In addition, the voters of El Paso get to vote for two Senators, giving them a voice in confirmations, treaties, and impeachment trials that is denied to DC. They help elect a Representative to a powerful state delegation. Their votes count for far more than DC votes would under Davis-Norton.
In fact, I think the equal protection argument would run the other way. The bill, if it ever passed and somehow survived judicial review under Article I and Amendment XIV, sec. 2, would deny equal protection to DC residents by excluding them from any voice in the selection of Senators.
The bill is based on the District Clause, which may have either local or national scope. In most cases, Congress acts locally, as if it were a state government exercising complete local police powers, and must accord equal protection to all within its DC jurisdiction. But it may use the clause on a national basis, as it did in Tidewater when it granted diversity jurisdiction over District litigants on an equal basis to federal courts throughout the country.
The Davis-Norton bill does not purport to treat DC as a state, but as a congressional district, by virtue of its powers under the District Clause. But this would be a national exercise of its powers, so it would have to grant equal protection to all within its national jurisdiction. The Davis Norton bill fails to do this because DC voters would not be protected equally in the Congress of the United States, since their exclusion from the Senate relegates them to inferior representation.
Hans Bader wrote that It is already inequitable that underpopulated states like Wyoming and Vermont receive just as many senators as populous states like California and New York, meaning that the vote of an individual California voter has much less weight than the vote of a Vermont voter.
But was this so-called inequitable system imposed on the country without the consent of its governed? The answer is clearly no.
After the constitutional convention, the large states unanimously consented to their equal representation in the Senate, regardless of population, by ratifying the Constitution in state conventions. Since that time, 37 other states have sought admission to the Union, fully aware of the equal Senate representation requirement, and have consented to it.
In each case, the Congress admitted the new state by a statute approved by both Houses and signed by the President. In each case, the large states, which were all fully represented in the House of Representative according to their respective numbers, gave their consent to the addition of more Senators. In each case it was signed by the President, who had been elected by an Electoral College where large states historically benefit by casting their votes as a bloc.
So it seems to be a principle of our nation that those who are governed may consent to some departures from strict numerical representation. The departures may not necessarily be inequitable if they serve important national purposes.
If Congress' supposed "plenary" power under the District Clause authorizes it to give D.C. one seat in the House, then it also gives it the power to give D.C 435 seats, or 43,500 seats.
That simply cannot be right.
"States" means "states." All else is sophistry.