District of Columbia voting rights

Satellite view of the District of Columbia in relation to the states of Maryland and Virginia.

Voting rights of citizens in the District of Columbia differ from the rights of citizens in each of the 50 U.S. states. The United States Constitution grants each state voting representation in both houses of the United States Congress. As the U.S. capital, the District of Columbia is a special federal district, not a state, and therefore does not have voting representation in the Congress. The Constitution grants the Congress exclusive jurisdiction over the District in "all cases whatsoever."

In the United States House of Representatives, the District is represented by a delegate, who is not allowed to vote on the House floor but can vote on procedural matters and in congressional committees. D.C. residents have no representation in the United States Senate. The Twenty-third Amendment to the United States Constitution, adopted in 1961, entitles the District to three electoral votes in the election of the President and Vice President of the United States.

The District's lack of voting representation in Congress has been an issue since the capital's founding. Numerous proposals have been introduced to change this situation, including legislation and constitutional amendments, returning the District to the state of Maryland, and making the District into a new state. All proposals have been met with political or constitutional challenges and there has been no change in the District's representation in the Congress.

History

See also: History of Washington, D.C.; District of Columbia home rule; and District of Columbia statehood movement

In 1783, a crowd of disbanded Revolutionary War soldiers angry about not having been paid gathered to protest outside the building where the Continental Congress was meeting. The soldiers blocked the door and initially refused to allow the delegates to leave. Despite requests from the Congress, the Pennsylvania state government declined to call out its militia to deal with the unruly mob, and so Congress was forced to abruptly adjourn to New Jersey. This led to the widespread belief that Congress needed control over the national capitol. As Madison wrote in The Federalist No. 43, "Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy." This belief resulted in the creation of a national capital, separate from any state, by the Constitution's District Clause.

The "District Clause" in Article I, Section 8, Clause 17 of the U.S. Constitution states:

[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.

In 1788, the land on which the District is formed was ceded by Maryland. In 1790, Congress passed the Residence Act placing the District on the Potomac River between the Anacostia and Connogochegue with the exact location chosen by President Washington. His selection was announced on January 24, 1791, and the Residence Act was amended to include land that Virginia had ceded in 1790. That land was returned to Virginia in 1847. The Congress did not officially move to the new federal capital until the first Monday in December 1800. During that time the District was governed by a combination of a federally appointed Board of Commissioners, the state legislatures and locally-elected governments.

On February 27, 1801, only a few months after moving to the District, Congress passed the District of Columbia Organic Act of 1801 and incorporated the new federal District under its sole authority as permitted by the District Clause, making Congress the supreme source of all local laws. Since the District of Columbia ceased being part of any state and was not a state itself, the District's residents lost voting representation in Congress, the Electoral College, and in the Constitutional amendment process — consequences that did not go without protest. In January 1801, a meeting of District citizens was held which resulted in a statement to Congress noting that as a result of the impending Organic Act "we shall be completely disfranchised in respect to the national government, while we retain no security for participating in the formation of even the most minute local regulations by which we are to be affected. We shall be reduced to that deprecated condition of which we pathetically complained in our charges against Great Britain, of being taxed without representation." The following year, the Board of Commissioners was abolished, the city of Washington was incorporated and a local government consisting of a locally elected 12-member council and a Mayor appointed by the President was put in place.

In 1812, the District was given greater home rule when the Mayor became an elected official, chosen from among the group of 12 elected council members and 8 aldermen, and in 1820 the Mayor became directly elected. Small modifications were made over the years, but in 1871 the District government was again dramatically modified, this time getting a government more similar to that of the territories. Under this new government, the Governor of the District was again appointed by the President, as were all members of one house of the District legislature. The territorial government was abolished in 1874 and replace by a presidentially appointed council.

In 1878, the District was given a permanent government, still consisting of a three-member council appointed by the President. It was later decided that this congressional act constituted the District's Constitution, making the District the only territory that had not been allowed to write its own Constitution.

In the 1950s, as part of the larger Civil Rights Movement, interest emerged in giving DC full representation. As a compromise, the Twenty-third Amendment was passed in 1961, granting the District a number of votes in the Electoral College in measure to their population, but no more than the smallest state. This right has been exercised by DC residents since the presidential election of 1964.

The District of Columbia Home Rule Act of 1973 devolved certain congressional powers over the District to a local government administered by an elected mayor, currently Muriel Bowser, and the thirteen-member Council of the District of Columbia. However, the Congress retains the right to review and overturn any of the District's laws. Each of the city's eight wards elects a single member of the council, and five members, including the chairman, are elected at large.

In 1980, District voters approved the call of a constitutional convention to draft a proposed state constitution, just as U.S. territories had done prior to their admission as states. The proposed constitution was ratified by District voters in 1982 for a new state to be called "New Columbia", but the Congress has not granted statehood to the District.

Pursuant to that proposed state constitution, the District still selects members of a shadow congressional delegation, consisting of two shadow Senators and a shadow Representative, to lobby the Congress to grant statehood. These positions are not officially recognized by the Congress. Additionally, until May 2008, the Congress prohibited the District from spending any funds on lobbying for voting representation or statehood.

On December 29, 2003, The Inter-American Commission on Human Rights of the Organization of American States concluded that the United States is violating the District of Columbia's rights under Articles II and XX of the American Declaration of the Rights and Duties of Man by denying District of Columbia citizens an effective opportunity to participate in the Congress. The commission reiterated the following recommendation to the United States: "Provide the Petitioners with an effective remedy, which includes adopting the legislative or other measures necessary to guarantee to the Petitioners the effective right to participate, directly or through freely chosen representatives and in general conditions of equality, in their national legislature".

A 2005 poll paid for by the advocacy group D.C. Vote, but conducted by the non-partisan polling firm KRC Research, found that 82% of 1,007 adults believed that D.C. should have full congressional voting representation. A 2007 Washington Post poll of 788 adults found that 61% of those adults supported granting the District "a full voting" Representative.

Arguments for and against

There are arguments for and against giving the District of Columbia voting representation in the Congress.

Consent of the governed

Advocates of voting representation for the District of Columbia argue that as citizens living in the United States, the more than 600,000 residents of Washington, D.C., should have the same right to determine how they are governed as citizens of a state. At least as early as 1776, George Mason wrote in the Virginia Declaration of Rights:

VI. That elections of members to serve as representatives of the people, in assembly, ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage, and cannot be taxed or deprived of their property for public uses without their own consent, or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the public good.

VII. That all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.

Justice Hugo Black described the right to vote as fundamental in Wesberry v. Sanders, 376 U.S. 1 (1964). He wrote, "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined."

The Uniformed and Overseas Citizens Absentee Voting Act allows U.S. citizens to vote absentee for their home state's Congressional representatives from anywhere else in the world. If a U.S. citizen were to move to the District, that person would lose the ability to vote for a member of the Congress. U.S. citizens who have permanently left the United States are still permitted to vote absentee for the Congress in the state where they last held residency. Scholars have argued that if U.S. citizens who are residents of other countries are allowed to vote in federal elections, then the Congress can extend the same rights to residents of the nation's capital.

Constitutional provisions

The primary objection to legislative proposals to grant the District voting rights is that some provisions of the Constitution suggest that such an action would be unconstitutional. How the House of Representatives is to be composed is described in Article I, Section 2:

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. No Person shall be a Representative ... who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. Representatives ... shall be apportioned among the several States which may be included within this Union, according to their respective Numbers[.]

Section 2 of the Fourteenth Amendment reaffirms Article I, Section 2 in that regard when it says:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

In addition, the Seventeenth Amendment correspondingly describes the election of "two Senators from each State". Those who believe D.C. voting rights legislation would be unconstitutional point out that the District of Columbia is not a U.S. state. Advocates of voting rights legislation claim that Article I, Section 8, Clause 17 (the District Clause), which grants Congress "exclusive" legislative authority over the District, also allows the Congress to pass legislation that would grant D.C. voting representation in the Congress. The District is entitled to three electors in the Electoral College, pursuant to the Twenty-third Amendment which says the District is to have:

A number of electors equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State[.]

The constitutional argument about whether Congress can provide the District of Columbia with a voting member in the House of Representatives, but not in the Senate, is heavily debated by each side. In Hepburn v. Ellzey (1805), the Supreme Court held that the right of residents of the District to sue residents of other states is not explicitly stated in Article III, Section 2. In National Mutual Insurance Co. v. Tidewater Transfer Co., Inc, 337 U.S. 582 (1949), the Supreme Court held that Congress could grant residents of the District of Columbia a right to sue residents of other states. However, opponents of the constitutionality of the legislation to grant D.C. voting rights point out that seven of the nine Justices in Tidewater rejected the view that the District is a “state” for other constitutional purposes. Opponents have also pointed out that if the power of Congress to "exercise exclusive legislation" over the District is used to supersede other sections of the Constitution, then the powers granted to Congress could potentially be unlimited.

On January 24, 2007, the Congressional Research Service (CRS) issued a report 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."

Tax arguments

Unlike residents of U.S. territories such as Puerto Rico or Guam, which also have non-voting delegates, citizens of the District of Columbia are subject to all U.S. federal taxes. In the financial year 2007, D.C. residents and businesses paid $20.4 billion in federal taxes; more than the taxes collected from 19 states and the highest federal taxes per capita. This situation has given rise to the use of the phrase "Taxation Without Representation" by those in favor of granting D.C. voting representation in the Congress. The slogan currently appears on the city's vehicle license plates. The issue of taxation without representation in the District of Columbia is not new. For example, in Loughborough v. Blake 18 U.S. 317 (1820), the Supreme Court said:

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.

In 1971, Susan Breakefield sued to recover three years of income taxes she paid to the District of Columbia because she said she was a victim of taxation without representation. Breakefield lost her case before both the District of Columbia Tax Court and the United States Court of Appeals, and the Supreme Court refused to hear the case.

Opponents of D.C. voting rights point out that Congress appropriates money directly to the D.C. government to help offset some of the city's costs. However, proponents of a tax-centric view against D.C. representation do not apply the same logic to the 32 states that received more money from the federal government in 2005 than they paid in taxes. Additionally, the federal government is exempt from paying city property taxes and the Congress prohibits the District from imposing a commuter tax on non-residents who work in the city. Limiting these revenue sources strains the local government's finances. Like the 50 states, D.C. receives federal grants for assistance programs such as Medicare, accounting for approximately 26% of the city's total revenue. Congress also appropriates money to the District's government to help offset some of the city's security costs; these funds totaled $38 million in 2007, approximately 0.5% of the District's budget. In addition to those funds, the U.S. government provides other services. For example, the federal government operates the District's court system, which had a budget of $272 million in 2008. Additionally, all federal law enforcement agencies, such as the U.S. Park Police, have jurisdiction in the city and help provide security. In total, the federal government provided about 33% of the District's general revenue. On average, federal funds formed about 30% of the states' general revenues in 2007.

Political considerations

Opponents of D.C. voting rights have also contended that the city is too small to warrant representation in the House and Senate. However, sponsors of voting rights legislation point out that both Wyoming and Vermont have a smaller population than the District of Columbia.

In modern times, all elections held in the district have been overwhelmingly won by the Democratic Party. The Democrats' support of increased D.C. representation in Congress and the Republicans' opposition to it have been alleged to be purely for self-serving reasons.

Human rights

Since 2006, the United Nations Human Rights Committee report has cited the United States for denying DC residents voting rights in violation of the International Covenant on Civil and Political Rights, a treaty the United States ratified in 1992.

Proposed reforms

Advocates for D.C. voting rights have proposed several, competing reforms to increase the District's representation in the Congress. These proposals generally involve either treating D.C. more like a state or allowing the state of Maryland to take back the land it ceded to form the District.

Legislation

Several bills have been introduced in Congress to grant the District of Columbia voting representation in one or both houses of Congress. As detailed above, the primary issue with all legislative proposals is whether the Congress has the constitutional authority to grant the District voting representation. Members of Congress in support of the bills claim that constitutional concerns should not prohibit the legislation's passage, but rather should be left to the courts. A secondary criticism of a legislative remedy is that any law granting representation to the District could be undone in the future. Additionally, recent legislative proposals deal with granting representation in the House of Representatives only, which would still leave the issue of Senate representation for District residents unresolved. Thus far, no bill granting the District voting representation has successfully passed both houses of Congress. A summary of legislation proposed since 2003 is provided below.

Proposals during administration of George W. Bush

The Justice Department during the administration of President George W. Bush took the position that “explicit provisions of the Constitution do not permit Congress to grant congressional representation to the District through legislation.” Various such proposals were considered by the Congress during Bush's tenure:

• The No Taxation Without Representation Act of 2003 (H.R. 1285 and S. 617) would have treated D.C. as if it were a state for the purposes of voting representation in the Congress, including the addition of two new senators; however, the bill never made it out of committee.
• The District of Columbia Fair and Equal House Voting Rights Act of 2006 (H.R. 5388) would have granted the District of Columbia voting representation in the House of Representatives only. This bill never made it out of committee.
• The District of Columbia Fair and Equal House Voting Rights Act of 2007 (H.R. 328) was the first to propose granting the District of Columbia voting representation in the House of Representatives while also temporarily adding an extra seat to Republican-leaning Utah to increase the membership of the House by two. The addition of an extra seat for Utah was meant to entice conservative lawmakers into voting for the bill by balancing the addition of a likely-Democratic representative from the District. The bill still did not make it out of committee.
• The District of Columbia House Voting Rights Act of 2007 (H.R. 1433) was essentially the same bill as H.R. 328 introduced previously in the same Congress. This bill would still have added two additional seats to the House of Representatives, one for the District of Columbia and a second for Utah. The bill passed two committee hearings before finally being incorporated into a second bill of the same name. The new bill (H.R. 1905) passed the full House of Representatives in a vote of 214 to 177. The bill was then referred to the Senate (S. 1257) where it passed in committee. However, the bill could only get 57 of the 60 votes needed to break a Republican filibuster and consequently failed on the floor of the Senate. Following the defeated 2007 bill, voting rights advocates were hopeful that Democratic Party gains in both the House of Representatives and the Senate during the November 2008 elections would help pass the bill during the 111th Congress. Barack Obama, a Senate co-sponsor of the 2007 bill, said during his presidential campaign that he would sign such a bill if it were passed by the Congress while he was President.

Proposal during administration of Barack Obama

On January 6, 2009, Senators Joe Lieberman of Connecticut and Senator Orrin Hatch of Utah, and D.C. Delegate Eleanor Holmes Norton introduced in the House the District of Columbia House Voting Rights Act of 2009 (H.R. 157 and S. 160). On February 26, 2009, the Senate passed S. 160 by a vote of 61–37. However, before passing the bill, the Senate adopted an amendment by Senator John Ensign that would have removed the authority of the District of Columbia to prohibit or unduly burden the ability of its residents to possess guns in their homes, on their property, or at their places of business. The Ensign amendment would have also repealed District legislation requiring gun registration, the District's ban on semiautomatic weapons, and the District's criminal penalties for possession of an unregistered handgun. Following the Senate's passage of the bill, as amended, House Majority Leader Steny Hoyer said on March 4 that he had postponed a House vote on the bill for at least a week, but it quickly became clear there were not enough votes to bring the bill to the floor without any amendments. Despite Hoyer's efforts to have the amendment's supporters withdraw it and propose it as separate legislation, and Norton's efforts to achieve consensus within the District's political community, where there is strong opposition to Ensign's amendment, Hoyer had to announce on June 9 that the bill was on hold indefinitely. In April 2010, the bill rather abruptly returned to the agenda, but the week a vote was expected, Hoyer declared the bill was unlikely to be passed during the 111th Congress. District politicians reiterated their opposition to the House passing the bill with Ensign's amendment. The House bill was reintroduced in the 112th Congress as H.R.267.

The Justice Department has split over the constitutionality of legislation to give the District of Columbia voting representation in the House of Representatives. The Office of Legal Counsel reported to Attorney General Eric Holder that the proposed legislation would be unconstitutional, but Holder overrode that determination and instead obtained an opinion from officials of the United States Solicitor General's office that the legislation could be defended if it were challenged after its enactment.

Retrocession

Main article: District of Columbia retrocession

The process of reuniting the District of Columbia with the state of Maryland is referred to as retrocession. The District was originally formed out of parts of both Maryland and Virginia which they had ceded to the Congress. However, Virginia's portion was returned to that state in 1846; all the land in present-day D.C. was once part of Maryland. If both the Congress and the Maryland state legislature agreed, jurisdiction over the District of Columbia could be returned to Maryland, possibly excluding a small tract of land immediately surrounding the United States Capitol, the White House and the Supreme Court building. If the District were returned to Maryland, citizens in D.C. would gain voting representation in the Congress as residents of Maryland. The main problem with any of these proposals is that the state of Maryland does not currently want to take the District back. Further, although the U.S. Constitution does not specify a minimum size for the District, retrocession may require a constitutional amendment, as the District's role as the seat of government is mandated by the Constitution's District Clause. Retrocession could also alter the idea of a separate national capital as envisioned by the Founding Fathers. It may also violate the Twenty-third Amendment to the United States Constitution's granting of votes in the electoral college, as they would still be constitutionally granted to the district.

A proposal related to retrocession was the "District of Columbia Voting Rights Restoration Act of 2004" (H.R. 3709), which would have treated the residents of the District as residents of Maryland for the purposes of congressional representation. Maryland's congressional delegation would then be apportioned accordingly to include the population of the District. Those in favor of such a plan argue that the Congress already has the necessary authority to pass such legislation without the constitutional concerns of other proposed remedies. From the foundation of the District in 1790 until the passage of the Organic Act of 1801, citizens living in D.C. continued to vote for members of Congress in Maryland or Virginia; legal scholars therefore propose that the Congress has the power to restore those voting rights while maintaining the integrity of the federal district. However, the proposed legislation never made it out of committee.

Amendment process

Given the potential constitutional problems with legislation granting the District voting representation in the Congress, scholars have proposed that amending the U.S. Constitution would be the appropriate manner to grant D.C. full representation.

District of Columbia Voting Rights Amendment

Main article: District of Columbia Voting Rights Amendment

In 1978, the Congress proposed the District of Columbia Voting Rights Amendment. This amendment would have required that the District of Columbia be "treated as though it were a State" regarding congressional representation, presidential elections (to a greater extent than under the Twenty-third Amendment, in that if its population were to exceed that of states entitled to only one Representative, and hence only three electoral votes, then it would receive the same number of electors to which it would be entitled if it were a state of that size) and the constitutional amendment process. The amendment had to be ratified within seven years in order to be adopted. The amendment was ratified by only 16 states, short of the requisite three-fourths (38) of the states, and so it expired in 1985. The amendment has never subsequently been resubmitted for ratification.

Murkowski proposal

Senator Lisa Murkowski believed the District of Columbia House Voting Rights Act of 2009 would be unconstitutional if adopted and so she proposed a constitutional amendment to provide the District with one representative. Unlike the District of Columbia Voting Rights Amendment, Murkowski's proposal would not have provided the District any Senators or a role in the constitutional amendment process. Her proposal was referred to the Senate Judiciary Committee.

Statehood

Main article: District of Columbia statehood movement

Article IV, Section 3, Clause 1 of the Constitution gives the Congress power to grant statehood. If the District were to become a state, congressional authority over the city would be terminated and residents would have full voting representation in both houses of the Congress. However, there are a number of constitutional considerations with any such statehood proposal.

In 1980, local citizens passed an initiative calling for a constitutional convention for a new state. In 1982, voters ratified the constitution of a new state to be called "New Columbia". This campaign for statehood stalled. After the District of Columbia Voting Rights Amendment expired in 1985, another constitution for the state of New Columbia was drafted in 1987. The House of Representatives last voted on D.C. statehood in November 1993 and the proposal was defeated by a vote of 277 to 153. Further, like retrocession, it has been argued that D.C. statehood would violate the Constitution's District Clause and erode the principle of a separate federal territory as the seat of the federal government and so would require a constitutional amendment.

See also

• Voting rights in the United States
• Uniformed and Overseas Citizens Absentee Voting Act
• Federal voting rights in Puerto Rico

External links

• D.C. Statehood Green Party
• DC Vote
• DC Represent
• Cityhood for DC
• The Founder’s Constitution: Article 1, Section 8, Clause 17