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Too Clever by Half: the Unconstitutional D.C. Voting Rights Bill

One of the most anticipated pieces of holdover legislation for the 110th Congress is the D.C. Fair and Equal House Voting Rights Act, giving the District of Columbia a single vote in the House of Representatives and balancing that Democratic vote with a fourth district for Utah. While heralded as a historic and long-overdue reform for the District’s non-voting citizens, the legislation is a constitutional and practical nightmare. It is an example of being too clever by half — trying to do the right thing without doing it in the right way.

On its face, the bill would create a type of half-formed citizen, residents with a representative in the House but not the Senate. While the same logic could be used to create two Senators for the District, the sponsors insist that one Representative is sufficient. What is particularly annoying is that sponsors are framing this as a civil rights measure — as if allowing Rosa Parks to move to the middle of the bus would have been a civil rights victory.

The problem for the sponsors is the text of the Constitution, which clearly says that only states are allowed to have voting Members in the House. The District of Columbia was created for the express purpose of being a non-state. Indeed, the non-voting status of District residents was openly debated at the time and was repeatedly raised in the early years, particularly when a large amount of the District was retroceded back to Virginia in 1847.

This should be an easy constitutional question with both the constitutional text and history in agreement. That plain meaning, however, is plainly inconvenient for Members who do not want to deal with the difficult process of retroceding the District back to Maryland from whence it came. Instead sponsors have taken unprecedented liberties with one of the most fundamental parts of the Constitution: the rules governing who can vote on national legislation.

There are obvious risks to this gamble. After spending millions to secure each marginal seat in the midterm elections, the Democrats may spontaneously create a new GOP voting Member in a closely divided house while the District vote is struck down in litigation. Worse yet, if any votes turn on a single vote, a latter decision striking down the bill would create uncertainty as to the legitimacy of enacted legislation.

The Utah seat is in a better, but still not unassailable, legal position. In the original bill, the sponsors tried to create a new at-large seat for Utah. This, however, would have violated constitutional guarantees of one person-one vote with Utah citizens who would have not one but two Representatives in the House.

After this flaw was raised at the Judiciary Committee hearing, the sponsors arranged for Utah to create a stand-alone district. Even that change, however, may not end the controversy. The sponsors appear to want to enact the legislation and then fill the fourth seat in the 110th Congress. This would require the three current Members to resign to create vacancies. Yet, these would not be true vacancies because the districts would change. It is not clear how Congress could pretend that residents had voted in the new districts and then fill the vacancies. Technically, as new districts (like redistricted districts), the four Utah districts should be filled at the next regular election in two years for the 111th Congress.

Yet, the District seat remains the most controversial on a number of different levels — beyond its unconstitutionality. Like those “real gold watches” sold to suckers in New York for $10, this bill is not as good as it appears and could stop ticking in the very next Congress. For example, under this legislation, D.C. always would have one Congressional district regardless if the city grew to 2 million or shrank to 2,000 voters. In the same fashion, what Congress giveth, Congress can taketh away. In a future divided house, a new majority could just as easily return the residents to non-voting citizens. At the same time, the bill effectively would kill any real effort to give residents full representation in Congress.

The dangers of this legislation do not stop at its devastating impact on efforts to secure full representation for District residents. It would create dangerous precedent that a majority in Congress can spontaneously create new voting Members from federal enclaves. Roughly 30 percent of land in the United States (more than 659 million acres) is part of a federal enclave regulated under the same power as the District. The Supreme Court repeatedly has stated that the Congressional authority over other federal enclaves derives from the same basic source. Just consider Puerto Rico with a population of roughly eight times that of the District and one easily can imagine future efforts to create new votes in a closely divided house.

Then, there is the problem with the Senate. If Congress can create a new district in the House by majority will, it presumably could use the same authority in the Senate. In this way, a majority could manipulate voting by creating new voting entities to serve its short-term political interests.

There are alternatives to this ill-conceived plan. Like others, I have proposed one such alternative involving a retrocession to Maryland and a special status for the District. We can debate the merits of these different proposals, but we should commit ourselves to true reform, not impulse-buy legislation designed to satiate residents while denying them full representation.

It certainly is time to right this historical wrong, but, in our constitutional system, it often is more important how we do something than what we do. The enactment of this legislation will only trigger a constitutional challenge and a likely defeat of the District portion of the bill. If Members are truly sympathetic with District residents, they deserve better — they deserve full representation in Congress.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University Law School.

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