Support the DC Voting Rights Act Thursday

by Keith

comments

1. While I appreciate that on some level it seems unfortunate that Washington has grown to a population level where its lack of voting power has become a minor social justice / disenfranchisement issue, and while I appreciate that liberals are perhaps not the most enamoured with the Constitution of all possible thinkers, don’t you feel that there is are both very strong textual and purposive arguments why D.C. cannot and should not have voting representation in the Congress?

   I recognize that there is a democratic quandry posed by a polity a half-million people strong having less voice in Congress than the numerically-inferior state of Wyoming, and I am not opposed to resolving that quandry. I cannot, however, agree that D.C. can be given voting representation in Congress without a Constitutional amendment, and substantively, I would argue that even if that procedural aspect were not an insurmountable hurdle (that it is, I presume, is the cause for the focus on statutory remedies) normatively, whatever the solution to D.C.’s representation might be, it is not the granting of, in essence statehood (I would also have opposed the 23rd Amendment for this reason) to the American capital. That would defeat the precise purpose for which the capital was placed in a Federal district.

   Thus, are any of the alternatives (for example, recession to Maryland) palatable to you? Do you accept the argument that the Federal capital should not be in any specific state, and if not, why not?

   —Simon • 12:02 am, May 31

2. Simon, you might want to look at the various papers and resources linked from the DC Vote site. It’s clearly not true that DC residents can’t be given voting representation in Congress without amending the Constitution, since in 1846 those DC residents living in what is now Arlington were given representation, when the portion of the District they lived in was retroceded to Virginia.

   Retrocession to Maryland would be acceptable to me, since all I’m interested in is having two senators and a representative, just like all other American taxpayers. But I think it’s not acceptable to most Marylanders and most DC residents, so it seems no more politically possible than the various other options.

   I don’t see what problems you think would be caused by giving DC residents the same say in how their federal tax money is spent that everyone else has. Other democracies give residents of their capitals representation in their national legislatures, and what ill effects has it caused? Most of the people associated with the federal government live in the surrounding suburbs in Maryland and Virginia anyway, where they have representation, so I don’t understand what good it does to disenfranchise those of us who live in the city (many of whom don’t work for the government).

   —Keith • 12:35 am, May 31

3. Keith,
   I don’t see a problem in giving DC residents the same say in how their federal tax money is spent that everyone else has. Although it may seem only a semantic difference, I would hasten to highlight the difference between giving DC residents representation in Congress and giving D.C. qua D.C. representation in Congress. As you point out, retrocession has the practical effect of the former, and for reasons I’ll return to in a moment, I support that; however, I cannot support the latter proposition, giving D.C. qua D.C. representation in Congress, and I do not think it is quite as simple as it is being presented by those more sympathetic to the idea than am I (see, e.g., V. Dinh, The Authority of Congress to Enact Legislation to Provide the District of Columbia with Voting Representation in the House of Representatives) (PDF).

   While certainly “[i]t’s clearly not true that DC residents can’t be given voting representation in Congress,” equally, it clearly is true that D.C. can’t be given voting representation in Congress without amending the Constitution, any more than can be a territory. Congress may be comprised solely of the representatives of states, and none other; Art. I §2 (”The House of Representatives shall be composed of members chosen every second year by the people of the several states”; “No person shall be a Representative . . . who shall not, when elected, be an inhabitant of that state in which he shall be chosen”; “Representatives . . . shall be apportioned among the several states which may be included within this union“) (emphases added) (cf. Amdt. 14 §2) (”Representatives shall be apportioned among the several states according to their respective numbers“); Art. I §3 (”The Senate of the United States shall be composed of two Senators from each state”; “No person shall be a Senator . . . who shall not, when elected, be an inhabitant of that state for which he shall be chosen“) (emphasis added). Non-voting representatives may also be unconstitutional, existing in something of a gray area, but while I would argue that there are ways around that problem, the issue of voting representation is black-and-white: under the Constitution as amended, only states may be represented in Congress.

   Which will merit the obvious rejoinder: simply make D.C. a state. There are a panoply of normative and practical objections to this, some of which I will return to in a moment, but first, I should point out that I am sceptical that creating D.C. as a state does not face constitutional obstacles. “The Congress shall have power . . . To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States.” Art. I §8. The cession of territory was to be permanent, one of the objects of creating a single seat of government being to end the days of the itinerant Congress. Maryland and Virginia ceded the territory with the understanding that (a) that cession was permanent and that (b) it was to be used for the seat of government. “[I]t is to be appropriated to this use with the consent of the State ceding it,” The Federalist, No. 43 (emphasis added). Those states therefore did not renounce all claims to future uses of that land, should, for example, the seat of government move. Consequentially, I believe that should the land cease to be used as part of the Federal district - if it were to be created as a state, for example - the territory would automatically revert to the jurisdiction of Maryland, and thus be governed by Art. IV §3 (”no new states shall be formed or erected within the jurisdiction of any other state“). Thus, the consent of Maryland would be needed as much to erect D.C. as a state as to retrocede the affected area to Maryland.

   If one of the purposes of creating a Federal district was to end the itinerant government, the primary motivation was to “render[] [the Federal government] independent of the individual states,” (The Antifederalist, No. 7). “The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. Without it . . . a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy . . . [T]he government would be both too great a public pledge to be left in the hands of a single State . . . [and to do so would ] abridge [the Federal govt.’s] necessary independence,” The Federalist, No. 43). The Federal government’s operations were designed to render it independent of the states, and thus it is that we have, for example, Federal courts, a Federal police service, direct federal taxation, and, of course, the Federal district. The Framers chose to remedy the principal defect of the Articles of Confederation by redering the federal government independent of the states; they could just have easily rendered the Federal government dependent on state co-operation for these functions, (see, e.g., Printz v.United States, 521 U.S. 898, 976) (1997) (Breyer, dissenting),but - in my opinion, wisely - they did not. To render the seat of government of a federation the dependancy of a single state is unwise, and should not be entertained.

   Which leaves, of course, retrocession to Maryland. I have to admit that I am not sure from where the lack of enthusiasm you report for this option comes from. In the eleven Presidential elections since the ratification of the 23rd Amendment, Maryland and the District of Columbia have only diverged only twice - in 1972 and 1988 - on which candidate they backed. Moreover, while it’s true that people split tickets, taking the 2004 vote as a measure, retroceding the entire population of the District to Maryland would increase Maryland’s GOP vote by a measly 21,000, and its Democratic vote by a reverberating 203,000. This poses no threat whatsoever to the majorities of Maryland’s senators, and would probably obliterate any possibility of another Republican winning the governorship in that State. All three of the Maryland Congressional districts adjacent to the Federal district - the Fourth, Fifth and Eighth - are occupied by Democrats. Thus, I would suggest that as hard as it is to predict such matters, incorporating DC into Maryland would barely change the status quo for the U.S. Senate, period, or for next Presidential election and the next three House elections. Presumably in the 2010 reapportionment, the 10% uptick in Maryland’s population resulting from incorporating the district will increase its allotment of seats in the House of Representatives and electoral college, which gives both Republicans and democrats incentives to back this plan: it will increase Democratic representation in the House (which will happen whatever plan is adopted) but leaving the Senate untampered with.

   As I see it, retrocession of the bulk of the district - while not ideal - is the most practical means of correcting the disenfranchisement of D.C. residents. It is the most likely plan to succeed; it is also that which most aptly balances enfranchisement against the design of the Constitution. It will not fully satisfy everyone; the Democrats will not get the two extra Senators they would no doubt like and which would accrue from statehood,but on the other hand, they should like (and Republicans will not) that they will gain extra voting power in the House and electoral college.

   —Simon • 6:58 pm, May 31

4. The issue of constitutionality is important, of course. Any proposal that’s unconstitutional would require a constitutional amendment, so that would make it harder to implement. It would also be an indicator that it should be given extra thought. But constitutionality doesn’t really indicate much about its morality or whether it’s a good idea.

   I’d prefer retrocession (or any of several other solutions) to this bill, which is only a partial solution. But since retrocession isn’t on the table I’m willing to take what I can get.

   I don’t understand what you see as the essential difference between having the residents of my apartment building be in Maryland and having them be in a new state formed from all of what’s now the District except for the federal enclave. It doesn’t seem to affect the government one way or another. Also, many, many federal government buildings and employees are in states right now, and that doesn’t seem to have caused a disaster.

   In your analysis of retrocession, you’re forgetting that it would actually help the Republicans in the electoral college. Maryland would presumably get one more elector, but the three for DC would go away. (Yes, that would require a constitutional amendment to undo the 23rd amendment, but I assume that once retrocession had taken place it would be a trivial exercise to get people to agree to remove the three electoral votes from the uninhabited federal enclave.)

   Why do you find it surprising that many DC residents don’t want DC to be incorporated into Maryland, and many Marylanders feel the same way? People often have strong attachments to the places where they live. Indiana and Kentucky are both blue states, but I imagine the inhabitants of either would be strongly opposed to combining them. Geographic divisions aren’t only about congressional representation — they’re also a part of people’s identity.

   —Keith • 8:34 am, June 1

5. DC voters have spoken on this issue and favor statehood. The leadership in the House favors a vote. What do you do with this plurality? Go for what you can get and build on that. Politics is not about precident, and the DC Fair Act may provide an easy solution to a problem of fairness. Many solutions abound, but the reality and practicality must be weighed.

   —andy • 11:17 pm, June 13

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