Voting Rights Tangle in D.C.

Research Fellow John C. Fortier
On Thursday, residents of the District of Columbia will walk the halls of Congress to advocate for the D.C. Voting Rights Act. D.C. residents should be represented in Congress, but the proposed bill to grant such representation by simple legislation is unconstitutional. If the bill does pass into law, all of the hours of advocacy will be wasted when the courts strike it down.

The District has 580,000 residents who, like other U.S. citizens, pay taxes, fight in wars, and vote in presidential elections. But unlike citizens in states, District residents have no voting representatives in the House or Senate.

D.C. congressional representation is being addressed in two ways in the 110th Congress. First, Democrats amended House rules, as they did in 1993, to allow delegates from D.C. and the territories to vote in committees and the committee of the whole, as long as the delegate votes do not actually count toward final passage of a bill.

Republicans complained bitterly about the 1993 policy, brought suit against it, and ultimately reversed it when they took over the majority in the 104th Congress. Columnist George Will has recently taken up the case that such a procedure is unconstitutional. But Will is wrong. Leaving aside the wisdom of such a proposal, federal courts in Michel v. Anderson ruled that delegates may be permitted to vote in committees and the committee of the whole. The courts’ reasoning mirrored a quip by then-Rep. Bob Walker (R-Pa.), who noted that “when they vote when it counts, it does not count, and when it does not count, it counts.”

In other words, Congress has the right to design its committees and other internal structures as it sees fit. The only constitutional requirement is that the representatives who vote on final passage of a bill are those who represent states.

The other D.C. voting proposal is more ambitious and constitutionally dubious. Rep. Tom Davis (R-Va.) and Del. Eleanor Holmes Norton (D-D.C.) have introduced a revised version of a bill they sponsored in the 109th Congress. The bill increases the size of the House to 437 members and gives the two new seats to the District of Columbia and Utah, the state that barely missed out on a seat in the last reapportionment.

The problem with this approach is that it is not Congress but rather the Constitution that specifies what entities are represented in Congress. The Constitution says explicitly that only states shall have representatives, and the District of Columbia is not a state. Similarly, the original Constitution provided for people to vote through their states in the electoral college. D.C. residents did not participate in the election of a president until the 23rd Amendment changed the Constitution to allow it. Congress could not have given the presidential vote to D.C. residents by simple legislation.

The advocates for this approach rely heavily on the seat-of-government clause that gives Congress power to “to exercise exclusive Legislation in all cases whatsoever” when governing the District. But this great legislative power is akin to the power a state government has to govern over its people, not a power to override the Constitution.

There are only three constitutional ways for D.C. to gain representation in Congress. First, D.C. could be admitted as a state. Second, the Constitution could be amended to give House and/or Senate representation to the District. Third, D.C. could be ceded back to Maryland, just as Arlington and Alexandria were ceded back to Virginia in the 19th century.

All legitimate constitutional options, all difficult to accomplish, but the only possibilities for District citizens to have representation in Congress.

John C. Fortier is a research fellow at AEI.

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