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Monday, March 2, 2009
By Dr. Steven Taylor

Via the LAT: D.C. vote clears one hurdle to face more

For the first time in three decades, the Senate last week approved a bill that would grant a House seat to the district, removing one of the largest hurdles to the measure. The bill passed with a substantial majority, 61 to 37.

[...]

The voting rights measure, the product of a legislative deal, would add two seats to the House: one for the strongly Democratic district, which currently has a nonvoting delegate in the chamber, and another that initially would be awarded to Republican-leaning Utah. That seat would later be apportioned according to the 2010 census.

I have been meaning to comment on this for a little while now, but hadn’t gotten around to it. There are really two key issues here, along with a number of ancillary ones. First and foremost is that simple fact that it is a travesty that the 588,292 citizens of the District1 have no representation in Congress–that’s more people that live in the state of Wyoming, and only slightly less than live in North Dakota or Vermont. There is no democratic reason to continue to deny those citizens representation in the House. The Senate is another matter that I shall leave alone for the moment.

Of course, one of the issues that has long blocked granting a seat to the citizens of the District is that fact that the seat will certainly be a Democratic one. Hence, the agreement noted above that would increase the House by two seats, and it just so happens the state in line for a new seat would be the very Republican one of Utah. As such, the chance for political compromise leads to the chance for a DC seat.

However, and this gets to the second key issue: while Congress has the power to increase the number of seats in the House via statute (the current number, 435, is based on statute), it is highly questionable (to put it mildly) that Congress can grant a voting seat in the House to a US territory, which is what DC is (it isn’t a state). As such, it is rather likely that the bill would be struck down by the Supreme Court should it make it out of the Congress:

Jonathan Turley, a professor at George Washington University Law School who has testified before Congress on this and similar legislation, says the Constitution clearly states that members of the House must come from states. And the district simply is not a state.

Any other determination, he warns, could result in other federal territories, such as Puerto Rico, seeking a similar accommodation.

“This would be a tragedy,” Turley said. “The sponsors will have vested years in this ill-conceived idea that will result in a stinging defeat in court.”

He thinks such a loss might cripple the movement for decades and that supporters should have pursued a constitutional amendment. But that strategy failed in 1978.

The main counter-argument will be the the District is unique, and not really a territory, but this strikes me as an argument that will likely not sway the Court.

Sphere: Related Content

  1. 2007 estimate according to the Census Bureau []
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13 Responses to “Two New House Seats?”

  1. Moonage Says:

    I am pleased to see a logical opinion on this.

    However, it would seem to me, having been a DC resident in the past, there is no need for the District of Columbia at all. If they want representation, simply eliminate the District entirely and give the land back to the states it was taken from.

    Seems a lot more logical and simple than dickering around with the Constitution.

    Another argument that could be made ( as I have made on my blog ), is that now, as a resident of a state that is not guaranteed an extra representative, I am now under-represented ( which is the argument DC is making ). By, what I would guess is guaranteeing Utah four representatives ( we are all guaranteed three already ), that is an unfair bias against my state. Additionally, there is no guarantee that Utah will keep all their representatives in the future, so the assumption this is equitable based on party lines is purely speculative. Which leads me to my final conclusion, the Constitution did not quarantee party equity. So, there are all kinds of arguments against this agreement, and only one for it. Solving the one issue is simple by a much simpler means ( getting rid of the District entirely ).

  2. Dr. Steven Taylor Says:

    There is a legit argument (that I didn’t have time to deal with in the post) of returning DC citizens to MD, VA or both for representational purposes.

    And you are right about the long-term fate of the Utah seat in question. It is simply a case of the partisan/political exigencies of the day.

    Either getting rid of the district or amending the constitution are the two best options, really.

  3. KipEsquire Says:

    The one “gotcha” that the pro-seat crowd can hang their hat on is that the Supreme Court has held that the District can be treated as a “state” for purposes of diversity jurisdiction under Article III.

    The problem there is that granting DJ to DC does not dilute access to federal courts to residents of bona fide States (in fact, it increases access).

    Granting a full voting House seat to the District, however, clearly reduces the voting power of every other (i.e., State-based) Representative. This Congress may not do.

  4. Senate Passes DC Voting Bill Says:

    [...] Steven Taylor and I are basically of the same mind on the recent passage by the Senate of a bill to give voting representation in the U.S. House of Representatives to residents of the District of Columbia. I’ve written numerous times over the past six years, so one can consult my DC category archives for much more. [...]

  5. Scholar in Training Says:

    A couple options here:

    1) Hope the Supreme Court doesn’t take up the case. Not likely.

    2) Stop collecting federal taxes from DC residents. Not likely.

    3) Let DC land become part Maryland, part Virginia. More likely than #1-#2.

    4) Amend constitution similar to 23rd amendment to allow DC voters. Most likely scenario.

    I like #2 the best and #4 second best.

  6. Brett Says:

    I’m not so confident the court would overturn the law. It sort of reminds me of the situation surrounding the Saxbe fix. For example, it is certainly “unconstitutional” for Hillary Clinton to be SOS, according to the letter of the Constitution, since she voted to increase the pay of the position. However, it has been generally regarded that the Saxbe fix is within the spirit of the Constitution; that is, it prevents members of Congress from profiting from their own actions in Congress.

    I think DC votes could be seen much the same way. Surely the founders never foresaw that the District would boast such a large residential population, outnumbering even some states. While this law may violate the “letter” of the Constitution, I think that a strong legal argument could be made that it fulfills the spirit of the Constitution. Due process and equal protection are key parts of our cosntitutional system. Without voting rights, it must be remembered that the District is without these. And the district is at the mercy of Congress when it comes to passing legislation. Congress can overturn the will of the DC city council on a whim, and in so doing overturn the democratic will of the district. For this reason, many issues that have majority support on the DC council, such as gay marriage, have not been approved. They are simply afraid that Congress would overturn their vote. I think a strong argument will be made that this situation is unfair, insofar as the district does not have a vote in Congress.

    Either way, I would not be surprised if this ends up being a 5-4 vote in the Supreme Court. I can definitely see several members of the Court who might side with the District on this case.

  7. Dr. Steven Taylor Says:

    Perhaps–and I think you are right that some of the Court would side with DC . However, in the Saxbe fix situation, there is actually a fix. In this case, I there isn’t really even a fig leaf of getting around the constitutional provisions in question.

    Indeed, if we are going to go “spirit of the constitution” here, the DC side would definitely lose, I should think.

  8. Moonage Says:

    Sometimes the “spirit of the Constitution” is open to interpretation. In this case, it specifically mentions “states” and does not include territories or anything resembling definitions of governance that did exist at the time. Because of that, I truly think they intended the power of the federal government to be decided by members of congress who were elected by the voters of their states and had no intention of carvign out a “district” from within existing states. All other non-state bodies governed by the US are outside of the contiguous United States. In this case, I truly think designating a “district” was a mistake. It had its logic, but it solved no real problem. So, undoing the fix would not do anyone any real harm. And, it would solve the issue of taxation without representation. We could call it the Moonage Fix. But the bottom line is this “fix” runs all over many key points of the original Constitution as they have it now. Simply giving DC a representative was one thing, politically rigging the entire Congress to benefit a political party completely another. I think when the Court looks at it in its entirity, siding with DC is a given for several members, however, even the most liberal judges would have a serious issue with the Utah part of the legislation.

  9. Max Lybbert Says:

    I’m curious to see this play out. On the one hand, I wonder if the House could have done this without a law, as the House has control over its internal affairs and comes up with its own parliamentary procedures, and it seems to me that one such procedure could be “DC gets a vote” (before this law it was “DC gets a nonvoting representative”).

    Then again, the Constitution mentions the creation of DC and it seems pretty obvious that DC was to be nonvoting by design.

  10. King Politics Says:

    This is tough. Intuitively, we all want representation for DC, but Turley makes a convincing argument. I’m all for amending the constitution but I can imagine that effort failing, which is a real shame.

  11. MSS Says:

    The unseemly thing is that this alleged victory (for now at least) for small-d democratic principle was secured only through a logroll. Make that two logrolls: Not only do Republicans get a safe extra seat (and electoral vote) in Utah, but they also got to overturn Washington’s gun-control law. So DC residents finally get representation in one half of the bicameral federal legislature, but the federal legislature tells them they can’t retain an important piece of legislation that their own elected representatives passed on their behalf.

    And, yes, Puerto Rico should be represented, too, as should the Virgin Islands, Guam, and all the rest. Unless they become independent, they are subject to federal law. There is no other federation that tolerates territorial units not having representation–even the Andaman Islands are represented in the Lok Sabha, Yukon Territory has a seat in the Canadian House of Commons, and every other federal capital has representation in its federal legislature.

    This disenfranchisement should shame Americans, though I concede that Americans are hard to shame when it comes to the serious shortcomings of their alleged great democracy.

  12. Ted Craig Says:

    I believe the state of Virginia already took back its part of D.C. several years ago. That means the simplest solution is making D.C. part of Maryland. But that would reduce Baltimore to the second largest city in the state, so it’s probably not going to happen.

  13. Moonage Says:

    Indeed they did. Learn something every day! However, Baltimore has a population of 651k, DC less than 600k. So, Baltimore has nothing to fear. So, the solution just got simpler.

    Someone tell Joe Liberman we have a much simpler solution to the problem than dicking around with the Constitution.

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