Skip to content

CRS Doubts Constitutionality of D.C. Bill

Perhaps previewing an expected legal challenge, a newly released Congressional Research Service report argues that current legislation does not give Congress the constitutional authority to grant a House vote to the Delegate from the District of Columbia.

There is very little case law on the issue, but what does exist indicates that Washington, D.C., is not a “state” for the purposes of representation, and the power Congress holds over D.C. is not enough to grant a House vote, the report reads.

The report specifically studies the constitutionality of the D.C. Fair and Equal House Voting Rights Act, which would grant Democratic-leaning D.C. a vote in the House while also giving one to Republican Utah. Introduced by Rep. Tom Davis (R-Va.) and D.C. Del. Eleanor Holmes Norton (D), the bill currently sits in the Judiciary Committee. No hearing on it has been scheduled yet.

Despite the report, Norton remains confident in the measure.

“No similar case has ever been considered by any court,” Norton said in a statement. “An unprecedented bill always raises constitutional issues, and we have always indicated that, not surprisingly, constitutional views on a novel bill like H.R. 328 are divided. … We believe that the weight of constitutional opinion is with the District.”

The question of constitutionality is nothing new. When a similar bill appeared before the Judiciary subcommittee on the Constitution in September 2006, scholars who had studied the issue testified that while granting the District a vote in the House is a noble goal, the Norton-Davis bill could violate the Constitution. And if the bill were to become law, it is expected to be challenged immediately in court, although exactly by whom is yet to be determined.

Some observers believe the CRS report is further proof that only a constitutional amendment will permanently bring full Congressional representation to the District, because the Norton-Davis bill is bound to be thrown out.

“What are we doing if, at the end of the day, this is declared unconstitutional and another two and a half years have gone by?” said Timothy Cooper, executive director of Worldrights, a non-governmental organization that specializes in human rights issues in China and the United States.

Cooper, a longtime proponent of D.C. voting rights, said the new Democratic-controlled Congress should have thrown out the current measure — an effort created to make headway when the Republicans were in control — to focus instead on passing a constitutional amendment, similar to the effort that brought presidential electoral votes to the District.

“It’s a new day in Congress, and it requires a new strategy,” Cooper said. “To carry forward a dusty strategy … is unsound.”

But supporters of the Norton-Davis bill argue bipartisanship remains important in the effort, and they say the Constitution is behind them.

These supporters frequently cite the ruling in National Mutual Insurance Co. of the District of Columbia v. Tidewater Transfer Co., a 1949 decision in which the Supreme Court found that Congress has the right to extend federal diversity jurisdiction to cases with one party from the District.

(Diversity jurisdiction deals with cases in which parties are from different states.)

But the justices’ limited focus in their ruling might serve instead to strike down the measure, according to the CRS report.

“The plurality opinion took pains to note the limited impact of their holding — parties in diversity suits with residents of the District of Columbia would have a more convenient forum to bring a law suit,” the report reads. “As noted, the plurality specifically limited the scope of its decision to cases which did not involve an extension of any fundamental right. Arguably, granting the Delegate a vote in the House does involve such an extension.”

But supporters of the Norton-Davis bill remained confident.

“We don’t think the CRS, or the Congress for that matter, is the arbiter of constitutionality,” said Ilir Zherka, executive director of DC Vote, adding that only the courts — where very little precedent has been established — are the forum for such debate.

“It’s unusual for someone at CRS to take this approach in an area that is completely undecided,” Zherka said. “This is not an area where there is case law. There isn’t clarity on this.”

In the meantime, continued discussion and lobbying for the measure will take place.

Hundreds of supporters, including D.C. Mayor Adrian Fenty (D), are expected to hit Capitol Hill on Thursday to lobby for the measure. That afternoon, the American Constitution Society for Law and Policy will host a forum on the constitutionality of the bill that will be moderated by Gilda Daniels, an assistant professor at the University of Baltimore School of Law.

The CRS report also analyzed the constitutionality of a recent House rules change that granted Norton and the four other Delegates a vote in the Committee of the Whole. Unlike with the Norton-Davis bill, the largely symbolic nature of that vote and past legal precedent likely will serve to uphold the rules change, according to the report.

Recent Stories

Senate spectrum bill markup scrapped over partisan differences

Rules on clean energy prevailing wage, apprenticeships finalized

Capitol Lens | Mega bites

Democrats hail Biden immigration moves that Trump brands ‘amnesty’

Capitol Ink | Plum assignment

Biden rules issued from now on vulnerable to repeal if he loses