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Davis’ D.C. Proposal Could Falter in Court

A proposal under consideration by Rep. Tom Davis (D-Va.) to create a new House seat for the District of Columbia could run into some legal stumbling blocks, according to an analysis issued by the D.C. Appleseed Center for Law and Justice.

The analysis, prepared for the center by Latham & Watkins LLP, examined a plan to temporarily expand the House by two seats, adding new districts for Utah and D.C.

Under that proposal, Washington would essentially become Maryland’s 9th district, encompassing both the city’s entire population as well some Maryland residents.

“[W]e believe Representative Davis’s Maryland-based proposal is far less attractive as a matter of law and more likely to fail a legal challenge than would a proposal that simply gave the new seat to D.C. alone,” states the law firm’s analysis, submitted July 31 to the Government Reform Committee, which Davis chairs.

Davis, who plans to introduce voting rights legislation sometime this fall, has previously stated that he is considering numerous options and has not publically committed to any specific plan. A spokesman did not return telephone calls seeking comment.

According to the analysis, a copy of which was obtained by Roll Call, the proposal would violate constitutional requirements that House Members must be elected from the state they represent.

“[V]oting as members of a Maryland district, D.C. residents will be constitutionally prohibited from choosing as their Representative a fellow District resident, and must instead be represented by an inhabitant of Maryland,” the report states. “In other words, the proposal to give D.C. residents voting representation through a new Maryland-based district would mean that D.C. residents could not be represented by someone from D.C. — including Eleanor Holmes Norton.”

Norton, a Democrat, is the District’s seven-term Delegate to the House.

Despite concerns over legality of the specific proposal, the analysis calls the pairing of Utah and the District “a shrewd and sensible proposal.”

“While we’re very supportive of the idea of there being a bill, even though at the moment it’s limited to voting representation in the House … we think the particular proposal that Congressman Davis and his staff have been talking about is not the best way to go about it,” said Walter Smith, the Appleseed Center’s executive director.

Smith’s organization is supportive of Davis’ push for legislation to create a House seat, he said, rather than other options such as a constitutional amendment.

“We suggest that instead what he ought to do is make the new district simply Washington, D.C., and treat Washington, D.C., as if it were a state,” Smith said of the analysis.

Under such a modified proposal, Congress would consider the District as a state solely for the purpose of voting rights, Smith explained.

The Committee of the Capital City, another group that has submitted a voting rights proposal for the Virginia lawmaker’s consideration, however, disagrees with the Appleseed Center’s findings.

“The definition of what is a resident of Maryland can be determined by Congress,” said John Forster, the committee’s activities coordinator. “We believe that Congress by legislation can give us those voting rights.”

The group, which backs retrocession or “reunion” of the District to Maryland, has written a bill which, like the Davis measure, would create a 9th district in Maryland composed primarily of D.C. and also of Old Line State inhabitants. It would also give D.C. residents the right to vote for Maryland’s two Senate seats.

Under both proposals, the House would revert to 435 seats following the 2010 Census, but the D.C. district would remain unaffected during remapping.

Among the legal precedents used by the committee, Forster said, is the Uniform Overseas Citizen Absentee Voting Act, which allows U.S. residents living overseas to vote in federal elections.

However, the Appleseed Center’s analysis argues that a “world of difference” exists between D.C. residents and those living overseas.

“It is hard to see how Congress could claim the constitutional authority to ‘deem’ District residents to be Maryland residents for purposes of congressional representation,” the analysis states. “The political values underlying the system of proportionate representation would quickly lose their coherence if Congress were able to alter the apportionment by the addition to a State’s tally of persons who have no plausible claim actually to be residents of that State.”

Norton said the analysis raised some of the same issues she has asked the D.C. Voting Rights Lawyers Task Force to address.

That group, commissioned by Norton, could release its findings as early as today. In addition to Smith, the task force includes Jon Bouker, Norton’s former chief counsel, and Jamie Raskin, an American University law professor.

Norton, who declined to give specifics of the task force’s analysis, said it will be “more digestible by residents because it simply lays out what the issues are and indicates why those issues are troublesome.”

The Delegate has voiced her support for pairing Utah and the District but has expressed concern over changing the “geographic and political coherence of the District.”

“In my discussion with Tom Davis I have found him very open in trying to accommodate the concerns we have raised,” she added.

Norton, who described the pending Davis proposal as a “pathway” to full Congressional representation, said she continues to push for passage of the No Taxation Without Representation Act, which would provide both a House seat and two Senate seats for the District.

The bill has 80 co-sponsors in the House, and Sen. Joe Lieberman (D-Conn.) is the sponsor of a companion bill in the Senate that has garnered 15 co-sponsors.

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