ACSBlog: The Blog of the American Constitution Society

ACS is pleased to distribute an Issue Brief by Richard P. Bress and Lori Alvino McGill, both of Latham & Watkins LLP, entitled "Congressional Authority to Extend Voting Representation to the Citizens of the District of Columbia: The Constitutionality of H.R. 1905."  According to Bress & McGill, a bill to extend voting representation to D.C. residents is constitutional, despite some reports to the contrary:

The United States is the only democratic nation that deprives the residents of its capital city of voting representation in the national legislature. American citizens resident in the District of Columbia are represented in Congress only by a non-voting delegate to the House of Representatives. These residents pay federal income taxes, are subject to any military draft, and are required to obey Congress’s laws, but they have no say in the enactment of those laws. Because Congress also has authority over local District legislation, District residents have no voting representation in the body that controls the local budget to which they must adhere and the local laws that they are required to obey. District residents thus lack what has been recognized by the Supreme Court as perhaps the single most important of constitutional rights.

Congress is presently considering legislation that would eliminate this longstanding anomaly. The House recently approved H.R. 1905, The District of Columbia House Voting Rights Act of 2007 (“D.C. Voting Rights bill”), which would give District residents a voting representative in the House. The voting-rights bill, sponsored in various forms by Delegate Eleanor Holmes Norton (D-District of Columbia) and Representative Thomas M. Davis III (R-Virginia), would permanently increase the size of the House by two members: one for the District and one for Utah, the state next in line for an additional seat.

Although the D.C. Voting Rights bill has garnered considerable bipartisan support, it raises legitimate constitutional questions and has been the subject of a lively academic and political debate. This issue brief considers the questions raised in that debate, including those raised in a recent Congressional Research Service (“CRS”) report, and concludes that the proposed legislation is within Congress’s authority.

Those who argue that Congress lacks the power to enact the proposed legislation (and must therefore proceed via retrocession or constitutional amendment) rely principally on the fact that the plain text of the Constitution provides voting representation to citizens of “States”. That is not, however, the end of the constitutional story. Congress and the federal courts have on a number of occasions treated the District as if it were a state within the meaning of particular constitutional provisions.4

The history of and policies behind the Framers’ creation of the District, the purpose of the Framers’ enumeration of “States” in the Constitution’s provisions for congressional representation, and the fundamental importance of the franchise support the view that those who drafted the Constitution did not, by guaranteeing the vote to state residents, intend to withhold the vote from District residents. The Framers gave Congress plenary power over the District, including the power, for most purposes, to treat the District as though it were a state and District residents as though they were state residents. The relevant legal precedents suggest that this authority is sufficiently broad to give the District a voting representative in the House via simple legislation.

To read the entire Issue Brief, follow this link.