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D.C. Voting Rights Backers Gear Up for Bill’s Big Week

With the D.C. voting rights bill scheduled to be taken up in two House committees this week, advocates are gathering evidence that the measure itself is constitutional, a move that could preview future court battles.

Several legal scholars and even a Congressional Research Service report have argued in recent weeks that the District of Columbia House Voting Rights Act — a revised version of the bill to grant Washington, D.C., a full vote in the chamber — is unconstitutional because Congress does not have the authority to grant a non-state full Congressional representation.

But with a House vote on the measure expected by the end of March, supporters are readying themselves for constitutionality questions that could be brought up by Members, releasing documents showcasing support from legal scholars in favor of the bill.

“The Constitution is the last stand for people who oppose voting rights for D.C. under any circumstances, even when party equivalence is assured,” said Del. Eleanor Holmes Norton (D-D.C.), who sponsored the bill with Rep. Tom Davis (R-Va.).

A compromise measure, the voting rights bill would grant Democratic-leaning D.C. a House vote while giving solidly Republican Utah an at-large seat. The current bill replaces an earlier version that granted Utah a fourth district seat based on a redistricting map designed by the Utah Legislature in December.

But there was some concern that a fourth seat would force Utah’s three current House Members to run in a special election, just months after they won re-election. (Special elections would still need to be held for the new seat and D.C.’s Representative.)

The Oversight and Government Reform Committee is scheduled to mark up the bill at 10 a.m. Tuesday, with Judiciary holding a hearing on the matter at 10 a.m. Wednesday and a markup at the same time Thursday. A House vote will be held by the end of the month, Majority Leader Steny Hoyer (D-Md.) announced last week.

“The citizens of the District of Columbia have waited far too long for a fully recognized voice in the People’s House — an omission that is reminiscent of revolutionary times when Americans were forced to submit to ‘taxation without representation,’” Hoyer said in a statement Friday. “The new Democratic Majority promised to rectify this shortcoming of American democracy as one of our first orders of business, and we are now fulfilling that promise.”

Judiciary Chairman John Conyers (D-Mich.) and Oversight Chairman Henry Waxman (D-Calif.) also signed onto the bill. (Davis is ranking member of the Oversight Committee.)

One person expected to testify Wednesday is Georgetown professor Viet Dinh, who as an assistant attorney general helped craft the PATRIOT Act, Norton said. Dinh also is among 25 scholars who signed a letter sent to Members by advocacy group DC Vote arguing in favor of the constitutionality of the bill.

The measure should have support from Members on both sides of the aisle, although there will be some opposition from lawmakers who don’t want to give D.C. Congressional power, Norton said.

“The themes are well rehearsed,” Norton said. “It really comes down to which side you are on.”

If the measure makes its way to the Senate, Utah Sens. Bob Bennett (R) and Orrin Hatch (R) are expected to show support, Norton said, along with Sen. Joe Lieberman (ID-Conn.), who has previously worked on other D.C. voting rights measures.

“As a matter of Senatorial courtesy, if a matter affects only one state and those Senators [from that state] are for it, those matters are left to that state,” Norton said.

Looking ahead, both Norton and Ilir Zherka, executive director of DC Vote, said that if the bill is passed and signed into law, a judicial challenge is likely. But they added that shouldn’t stop Members from passing the measure, as Congress passes controversial measures all the time.

“People challenge those laws, but that doesn’t preclude or stop the Congress from acting, because if that was the case, the Congress wouldn’t take up any given number of bills,” Zherka said.

But Zherka’s group is preparing for those constitutional questions anyway.

Last week, DC Vote released a memo written by attorney Richard Bress, a partner in the firm Latham & Watkins and a former clerk to Supreme Court Associate Justice Antonin Scalia, who argues against a recent CRS report that said Congress lacks the ability to grant D.C. full representation.

In the 11-page memo, Bress argues that the framers of the Constitution did not intend to deprive D.C. residents of voting representation. In fact, the document’s District Clause gives Congress the power to exercise legislative power for the city.

“History suggests that the Constitution’s failure to provide explicitly for District residents’ voting representation in the House is the result of an inadvertent omission that can be remedied by congressional action,” Bress writes.

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