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Full Representation for Washington — the Constitutional Way

The fact that the U.S. citizens who are residents of our nation’s capital are not fully represented in Congress has been a blot on our nation’s democratic ideals for more than 200 years. Unfortunately, politics from both sides of the aisle has gotten in the way of addressing this issue. Our oath of office demands that the remedy be constitutional. Justice demands that this failure of democracy be remedied.

The anomaly of District of Columbia residents being disenfranchised in the national government that resides in their midst did not arise when the District was formed in 1791 from areas ceded by Maryland and Virginia. The disenfranchisement didn’t start until 1800, when Congress cut off the District from future enactments of the Maryland and Virginia legislatures.

Although it’s not widely realized, this loss of voting rights was not unique. Residents of several other federal enclaves, such as military bases and veterans’ homes, were similarly disenfranchised, and for the same reason: Once the federal government assumed full jurisdiction, the areas no longer were considered parts of the states that ceded them. Since federal representation under the Constitution came exclusively through states, there was no longer a mechanism to provide that representation.

Over the years, Congress addressed various other problems caused by the lack of state law in federal enclaves through partial retrocessions of its exclusive authority, such as the Buck Act of 1940, which permitted states that ceded federal enclaves (other than D.C.) to tax enclave residents. Finally, in 1970, the Supreme Court ruled that state authority in those federal enclaves had become great enough that the states could no longer constitutionally deny enclave residents voting rights, including federal voting rights.

The Norton-Davis bill, H.R. 328, runs afoul of the basic constitutional principle that Congressional representation has to come through states. Although Congress’ authority over the District of Columbia, as with other federal enclaves and territories, may be “majestic in scope,” Congress must still abide by other parts of the Constitution. Congress can no more constitutionally create voting Representatives or Senators for D.C. or a territory than it could enact a bill of attainder or ex post facto law for D.C. or other federal enclaves or territories.

There is, however, a way to get there from here. My bill, the D.C. Voting Rights Restoration Act (H.R. 492), on the other hand, stays within constitutional bounds by providing federal representation to D.C. residents through Maryland, which ceded the current District of Columbia (the Virginia portion was ceded back in 1846). It is, in effect, a partial retrocession of authority, in this case for purposes of federal elections, like the many partial retrocessions Congress has made with regard to other federal enclaves.

Just as the Uniformed and Overseas Citizens Absentee Voting Act does for U.S. citizens living abroad, H.R. 492 would restore federal (but not state) voting rights for D.C. residents, reversing Congress’ 1800 removal of those rights. Like H.R. 328, my bill adds a House seat for Utah and permanently expands the House to 437 Members. But unlike H.R. 328, H.R. 492 remedies the entire injustice, not just part of it, by permitting D.C. residents to vote for, run for and be elected as Senators, Representatives and presidential electors from Maryland. (To avoid double voting, H.R. 492 provides that Congress use its 23rd Amendment powers to not provide for the appointment of D.C.’s own presidential electors.)

Of course, H.R. 492 is not the only constitutional means of providing Congressional representation for D.C. residents. For example, Congress has the power to admit new states. A bill to admit all but the central federal core of the District of Columbia as the “State of New Columbia” was defeated by a Democrat-controlled House of Representatives in November 1993 by a vote of 153-277. Also, the Constitution can be amended to provide for Congressional representation. In 1978, Congress actually passed a constitutional amendment that would have provided two Senators and a Representative for D.C. However, the proposal failed to become part of the Constitution when it was not ratified by the required three-quarters of the states within seven years.

The problem, as I see it, with any proposal that provides two Senators for one federal city is one of fairness. And the unfairness involved goes beyond mere partisanship. Yes, D.C. still has more people than Wyoming (and no other state), but Wyoming is the most extreme example of overrepresentation in the Senate. When my home county (Orange County) has more people than 21 states, and the other county I represent (Los Angeles County) has more people than 42 states, and both have to share their Senators with the rest of California, I don’t think it’s too much to ask that Washington, D.C., also share its Senate representation. The idea of two Senators for just one city exacerbates the gross overrepresentation of areas that have less than 2 percent of my state’s population.

Understandably, most Members have not paid attention to a debate that all too often seemed to be just theoretical. But now that the House appears poised to act on D.C. voting rights, I hope Members of both chambers of Congress will consider all proposals, including the one that solves the entire problem within constitutional bounds.

Rep. Dana Rohrabacher (R-Calif.) was a member of the District of Columbia Committee from 1989 to 1995.

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