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Congress Has Rare Opportunity to Make Things Right for D.C.

The D.C. Fair and Equal House Voting Rights Act, which would give the citizens of the nation’s capital a vote in the House of Representatives, engenders only one question: How could a bill that affords so little be so late in coming in a country with our professed principles?

Polls show 82 percent of the American people favor representation in both houses for the District of Columbia. It is hardly a surprise that the American people would believe that fellow citizens, who are second in federal income taxes and have served in all of our country’s wars, should have equal representation in Congress. Inevitably, the first Democratic Congress of the 21st century is expected to go at least as far as H.R. 328 and seat D.C. in the 110th Congress.

Our bill concedes to a virtual historical mandate that additional representation requires political balance. I am grateful that Rep. Tom Davis (R-Va.) found that balance, modeled most recently on Alaska and Hawaii, both admitted to the Union in 1959 after Congress assured itself that their entry would benefit both parties. Republican Utah, which would get a fourth district, barely missed getting a new seat in 2000, and the District has missed the mark by two centuries.

Our bill went further in the past Republican Congress session than many expected, with 15 Democrats and 14 Republicans supporting the bill in the Government Reform Committee, followed by a markup hearing in the Judiciary Committee, the committee of jurisdiction. After requiring Utah to draw a new map, the then-chairman of the committee, Rep. Jim Sensenbrenner (R-Wis.), waived markup, but Davis was unable to get his leadership to take the bill to the floor in the final days of the lame-duck session. The two Utah Senators were prepared to get the bill passed by unanimous consent in their chamber.

Unlike the Republican Party, which largely has resisted D.C. voting rights, the Democrats now come face-to-face with a bill that reflects their long-stated principles. After more than a century of denying basic rights, the Democrats became the equal rights party 40 years ago. Led by the civil rights movement, the District got today’s partial home rule and a Delegate. Democrats embraced the District, which was a virtual colony governed by presidentially appointed commissioners until 1974, and in Democratic platforms and endless Congressional speeches have supported full voting rights. Democrats know well that the world views the issue as an international human rights violation — the denial of representation in the national legislature for a majority African-American jurisdiction where racial segregation was federally required until recent decades.

The arguments against the bill are well rehearsed — too little (the “all or nothing” argument); too much (the constitutional argument) and the wrong way (a mixture of the two). The bill is too little. Statehood is the answer because it provides a wholesale remedy, curing both interference into local affairs and denial of full Congressional representation. To their credit, the last time Democrats controlled the Congress, they gave the District a two-day debate and vote on statehood, and almost two-thirds of the Democrats and one Republican voted “yes” on my statehood bill. No vote was taken in the Senate. However, the District, a city carrying state costs, gave up some (but by no means all) of the costs in 1997. Statehood must therefore be delayed.

Unprecedented bills always attract claims of unconstitutionality that often are no more than political cover by opponents. There is some respectable opinion against the bill on constitutional grounds. Fortunately, the District has the better argument. Republican scholars Kenneth Starr (former Court of Appeals judge and special prosecutor under former President Bill Clinton) and Viet Dinh (former assistant attorney general under then-Attorney General John Ashcroft) both have testified that our bill is constitutional.

Although D.C. is not a state, as Dinh testified, the District meets the constitutional standard of status for House representation because “since the birth of the Republic, courts have repeatedly affirmed treatment of the District [as] a ‘state’ for a wide variety of statutory, treaty, and even constitutional purposes.” Starr testified that the District Clause, which gives Congress authority “[t]o exercise exclusive legislation in all cases whatsoever,” is “majestic in its scope” and authorizes Congress to enact our bill.

Most telling is the certainty that the framers did not and could not have intended to deny voting rights to the residents of the new capital. In accepting the land for the District, the first Congress, by law, guaranteed that the existing laws of the donor states, Maryland and Virginia, would be observed until jurisdiction passed to Congress, which would then, “by law provide” the laws for the District.

Until Congress took jurisdiction, for 10 years citizens living in the District continued to exercise their Congressional voting rights “not because they were citizens of those states,” Dinh testified, “[but because] their voting rights derived from Congressional action under the District Clause recognizing and ratifying the ceding states’ law as the applicable law.” Particularly considering the premium the framers placed on local control and their skepticism of federal power, it is unthinkable that Maryland and Virginia would have agreed to the sacrifice of the basic rights of their citizens as they donated the land or that framers would have required it.

Finally, it is too late to argue that the answer is to have the city vote with or as a part of Maryland. Even if constitutionally permissible, the political wishes of that state are even more formidable than the District’s challenge in the Congress.

The only real obstacles to H.R. 328 are political. The bill was vetted and negotiated for four years and fealty to the District’s rights has been a virtual Democratic Greek chorus. Now this is one of those rare moments where we have gotten what we wished for.

Del. Eleanor Holmes Norton (D-D.C.) is a member of the Oversight and Government Reform Committee.

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