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Report Backs Utah Element of D.C. Bill

With opponents of the D.C. voting rights bill amping up their concerns about the measure’s constitutionality in the days leading up to Friday’s floor vote, a new Congressional Research Service report upholds the legal reasoning behind a political compromise that is the “other” major piece of the legislation.

Tuesday’s report indicated that Congress’ authority to create an at-large seat in Republican-leaning Utah — which was added to the bill as a way of balancing what is expected to be a Democratic seat in D.C. — likely would be upheld if challenged in federal court.

When Rep. Tom Davis (R-Va.) first introduced legislation in the 108th Congress to give Washington, D.C., a voting seat in the House of Representatives, it was trumpeted by many as a voting rights bill that both Republicans and Democrats finally could get behind because it was a solution to two representational injustices.

Davis’ bill, which was the basis for the legislation he eventually co-sponsored with D.C. Del. Eleanor Holmes Norton (D) in the 109th Congress and introduced again this year, essentially gives D.C. a vote in exchange for a vote in Utah, a state that narrowly failed to secure a fourth Congressional seat after the 2000 Census.

(The Rules Committee was scheduled to prepare the bill for floor action Wednesday evening.)

Opponents of the bill, most notably the White House, largely base their opposition on constitutional concerns with the section of the legislation dealing with D.C.

According to a statement of administration policy released this week by the Office of Management and Budget, the Constitution “limits representation in the House to representatives of States. … The District of Columbia is not a State. Accordingly, congressional representation for the District of Columbia would require a constitutional amendment.”

A previous CRS report stated that there is very little case law on the D.C. issue, but what does exist indicates that the District is not a “state” for the purposes of representation and the power Congress holds over the city is not enough to grant a House vote.

But a secondary concern, dealing with the Utah component of the bill, also has been voiced by some Members and legal scholars, most notably by Rep. Jim Sensenbrenner (R-Wis.), who chaired the Judiciary Committee in the 109th Congress. Sensenbrenner said much of his concern surrounds giving Utah an at-large seat, which he argued would go against the “one person, one vote” premise that has been upheld by the Supreme Court.

During the 109th, the language of the bill was changed to give Utah a 4th district to address Sensenbrenner’s concern, and the Utah Legislature even held a special session to design a new Congressional map.

But when the bill was reintroduced this year, the at-large seat was brought back, in part so current Utah Reps. Rob Bishop (R), Jim Matheson (D) and Chris Cannon (R) wouldn’t have to campaign in a special election so soon after being re-elected.

Tuesday’s CRS report contends that the creation of an at-large seat would not create conflict with the “one person, one vote” standard.

When the Supreme Court first applied the idea, it was in the context of evaluating the constitutionality of a Georgia remapping statute that created a district with two to three times as many residents as the state’s nine other districts, the CRS report states. In striking down the statute, the Supreme Court stated that “as nearly as is practicable, one man’s vote in a congressional election is to be worth as much as another’s.”

The report notes that under the Davis-Norton bill, “each Utah voter would have the opportunity to vote both for a candidate to represent his or her congressional district as well as for a candidate to represent the state at-large. Each person’s vote for an at-large candidate would be of equal worth. Further, each person’s vote for an at-large candidate would not affect the value of his or her vote for a candidate representing a congressional district.

“Accordingly, all Utah residents’ votes would have equal value, thereby appearing to comport with the one person, one vote principal.”

At a recent Congressional hearing on the D.C. bill, Richard Bress, a partner in the firm Latham & Watkins and a former clerk to Supreme Court Associate Justice Antonin Scalia, said that he too saw no problem with the Utah component of the D.C. vote bill.

“What matters for purposes of proportionate representation is the weight of each person’s vote, not the number of times they pull the lever in the voting booth,” he said. “The proposed at-large election would not give residents of Utah more or less voting power than the residents of other states with single-Member districts.”