D.C.’s Centuries-Long Disenfranchisement Is Unfair

By: Miriam Edelman

D.C.’s prolonged disenfranchisement is unfair. Throughout the past several decades, D.C. has tried to acquire at least partial voting representation in the U.S. Congress via different methods, including a Constitutional amendment, a simple Constitutional bill, a compromise bill, and statehood. Since these approaches have not been successful, D.C. residents still have zero voting representation in the U.S. Congress. Thus, since D.C. residents continue to pay taxes, they experience taxation without representation, the same situation that was crucial to the reason why the United States became a country nearly 250 years ago.

This piece focuses on the compromise bill, a tactic of the late 2000s that would have given the Democratic District of Columbia and Republican Utah each a vote in the House but would not have changed the Senate at all. Utah was the next state in line to get an extra seat. Utah had missed getting a fourth House seat from the 2000 census by only 857 people in the original count. A later count indicated that the margin was approximately 80 individuals. Utah tried to get a fourth seat, even suing the federal government so it could get that seat (instead of North Carolina getting a 13^th seat). In March 2002, Utah and North Carolina argued in the Supreme Court about this matter. Ultimately, Utah received its fourth seat when it was one of the seven states to gain a House seat as a result of the 2010 census.

The Washington Post referred to Representative Tom Davis (R-VA) as the “original architect of the D.C.-Utah bill” As then-Representative Henry Waxman (D-CA) said on the House Floor on March 22, 2007:

“There have been two champions of this legislation who deserve recognition. One is Congresswoman Norton, who has worked tirelessly on  behalf of her constituents to forge a compromise that has bipartisan  support. The second is the Ranking Minority Member of the Oversight and  Government Reform Committee, Representative Davis. Last year, as Chairman of the Committee, he led the charge for voting rights for the District.”

A little later that day, on the House Floor, Davis discussed the compromise bill:

”Four years ago, we saw a confluence of events that set the stage for the compromise we have before us today. Two injustices met to create this opportunity to correct both. On the one hand, a long-ignored  historical anomaly denies the citizens of the District of Columbia voting representation in the House of Representatives. On the other hand, a more recent problem with the census denies the citizens of Utah  the additional House vote that a true count would have yielded.”

“As it happens, one jurisdiction is predominantly Democratic, the other predominantly Republican. The circumstances opened the way to a politically neutral solution to both problems.”

“Throughout our Nation's history, it has been just this kind of win-win compromise that, however rooted in the fleeting circumstances of the day, provide enduring solutions to seemingly intractable problems.”

“Each of us swears to uphold the Constitution, its letter and spirit. That living document is at its heart the most fundamental right of citizens in a democracy. All the citizens. So we rely on the plenary power found in the District clause to restore the full right of citizenship to our disenfranchised countrymen and women.”

“After researching every possible avenue to right these wrongs and give the citizens of the District of Columbia and Utah, the next State that is eligible for a vote under the formula, the representation to which they are entitled, we concluded the approach before us today is both constitutionally sound and politically viable.”

“The former is our sworn duty. The latter is a practical imperative.”

“In 4 years, I have found no evidence that any Member of this body seriously plans to attempt retrocession or campaign for a constitutional amendment. There is a good reason for that: they are politically not viable. Most Members, including me, don't waste their time tilting at windmills.”

“By now, every Member is aware of the constitutional arguments. I ask that you think carefully about what you hear today. Every first-year law student in this country learns that you can't just read the Constitution once over literally to figure out what it means. But that is what the other side's arguments are. That is where it stops, and that is where it starts.”

“Those opposing this bill ignore 200 years of case law and clear instruction from the Court that this is a congressional matter and requires a congressional solution. Under their literal reading of the Constitution, District residents would have no right to a jury trial under the sixth amendment because you have to be a State to have that right.”

“D.C. residents would have no right to sue people from outside D.C. in the Federal courts; only people from States have that right under Article III, section 2.”

“The full faith and credit clause would not apply to D.C. because that only applies to States under a literal reading of the Constitution.”

“And the Federal Government would not be allowed to impose Federal taxes on the District. The Constitution says direct taxes shall be apportioned among the several States. Article I, section 2, clause 3.”

“But in each of these cases, the Supreme Court has held that Congress can consider the District a State for purposes of applying these fundamental provisions. If Congress has the authority to do so regarding these lesser rights and duty, there should be no question we have the same authority to protect the most sacred right of every American: to live and participate in a representative Republic.”

“It should also be pointed out that Congress granted voting representation in 1790 when it accepted the land that would become the Federal city. It then removed those rights, by statute, 10 years later. Those facts are undisputed. No amendment to the Constitution was

considered necessary then. And those opposing the bill today will not explain, only assert, the claimed need for a constitutional amendment to reverse a decision that was made through enactment of a statute.”

“This problem should be solved. A lot of people today will talk about the Framers and tell us that the Framers intended for the Federal city to have no direct representation.”

“Do you really believe that if the capital had stayed in New York, the city would have been disenfranchised? Do you believe that if the capital had stayed in Philadelphia, the city would have been disenfranchised? Of course not, and neither should the people of

Washington, D.C.”

“What we know is men and women who fought and died to create this country were willing to die for people who might disagree with them politically. D.C. residents are paying Federal taxes. They are fighting  and dying in the Middle East to bring democracy to that part of the world.”

“This is no mere legal or political science exercise. It's a crisis. Your fellow Americans are being denied the full rights and benefits of representative government. We have before us this unique moment in our history, the opportunity to fulfill the promise of the Constitution and make our democracy whole again.”

On May 15, 2007, Davis testified at the Senate Homeland Security and Governmental Affairs Committee’s hearing, entitled “Equal Representation in Congress: Providing Voting Rights to the District of Columbia.” At that hearing, he remarked:

“In talking about this legislation, the most important point I make is that no one can explain with a straight face why this  country, the capital of the free world, is willing to send  soldiers around the world to extend liberty to every corner of  the globe, yet Americans living in this Federal District, who  have fought and died in ten wars and pay Federal taxes, do not  have any representation in the Federal legislature. The United States is quite right to sacrifice for liberty around the world, but we need to walk the walk at home as well. The  District of Columbia House Voting Rights Act gives us a chance to do just that.”

“People continuously ask me why I don't support a constitutional amendment or campaign for retrocession. I have  two answers. First, I believe we should attempt what is  achievable. At the present time, we have made a strong case that Congress has the authority--at least with respect to the  House of Representatives--to remedy this problem and, by legislation, give the District a voting member in that body.”

“Second, I think every single day that passes with Americans  living in the District unrepresented is a travesty and an  indictment of our government. The day has long passed for  multi-year campaigns and pleas to unsympathetic partners.  Congress can solve this problem--and it should.”

“I think the Founders knew there would be unforeseen problems created in the ratification and everyday use of the  Constitution. In the District Clause, they gave Congress the flexibility to use its power to solve those kinds of problems.  All that is lacking now is the will to solve them.”

“Another question I am continually asked is: What about the Senate? Doesn't this bill start us down a slippery slope to  Senate representation? My answer is no. First of all, this action by this Congress does not obligate any future Congress to provide Senate representation. Moreover, since the basis of this legislation is the power of the Congress, no court can force us to exercise our prerogative against our will.”

“But, more importantly, remember the House and the Senate are intrinsically different bodies created for different purposes, representing different entities. It is easy to see the House and the Senate as simply two hurdles on the same track, and perhaps in some ways they are. But each hurdle is there for a different reason. This is old stuff to most of us, but when it comes to the District of Columbia and the House of Representatives, the difference is real.”

“James Madison put it best in Federalist Paper 39 when he explained the reason for having a bicameral legislative body. He said, ``The next relation is, to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is national, not federal.''

“And I would remind my friends that when this was written and in the first 12 years of the Constitution, the members of the District were among the several States and voted for the House of Representatives.”

“Madison goes on to state, ``The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress.''”

“So the House represents people, Senators represent States. Our body is national in nature; yours is Federal in nature.”

“It is likely the only road to Senate representation is actual statehood--not the other way around. But, at any rate, giving the District a voting member in the House neither advances nor hinders the statehood effort. But it does give the District representation under the Constitution today.”

“By now, every member is aware of the constitutional arguments. I ask that you think carefully about what you hear today. Every first year law student in this country learns that you cannot just read the Constitution and figure out what it means. But that is where the other side's argument starts and stops on this issue.”

“Those opposing this bill ignore 200 years of case law and clear instruction from the court that this is a congressional matter and requires a congressional solution. Under their reading:”

“District residents would have no right to a jury trial. You have to be from a State to have that right;”

“District residents would have no right to sue people from outside the District in the Federal courts under diversity. Only people from States have that right;”

“The Full Faith and Credit clause would not apply to the District. That applies only between States;”

“The Federal Government would not be allowed to impose Federal taxes on District residents. The Constitution says direct taxes shall be apportioned among the several States;”

“The District would be able to pass laws which interfere with interstate commerce. The Commerce Clause only allows Congress to regulate commerce among the several States. But they apply it to the District under the District Clause.”

“In each of these cases the Supreme Court has held that Congress can consider the District a ``state'' for purposes of applying those fundamental provisions. Now, if Congress has the authority to do so regarding those constitutionally granted rights and duties, there should be no question we have the same authority to protect the most sacred right of every American--to live and participate in a representative republic.”

“As the Senate considers what the House has done and decides how it will proceed, it is my hope you will look for ways to agree with the House on this matter; that instead of looking for potholes you will look for roads. Of course, there are potholes in the road, and some today will point them out to you. But at its core, the Constitution is a road to guaranteeing liberty and dignity under the consent of the governed. Now is not the time to fail to walk that road.”

On April 19, 2007 during the House Floor debate on a similar bill, Congressman Lamar Smith (R-TX) said:

“Mr. Speaker, let me be clear. Any Member who votes for this bill is voting to grant D.C. residents more voting power in the House of Representatives than any of their own constituents now enjoy. That is because this latest version of the bill fails to eliminate the position of D.C. Delegate.”

“The D.C. Delegate can, of course, vote in committee, which means that if this bill passes, D.C. residents will have two votes in committee and one on the House floor. That would give D.C. residents more voting power in the House than any other voter in the country.”

“That is obviously unfair, and I think we all know it.”

Most likely, D.C. did not want extra representation in the House. At that time, some D.C. residents wanted statehood. As Roll Call reported,

“Groups like the Stand Up! for Democracy in D.C. Coalition and the DC Statehood Green Party have argued that only self-determination and self-government — statehood — will end the second-class citizenship of D.C. residents.”

D.C. continues to want to be a state. As Roll Call reported in early 2007, “Poll after poll has shown that an overwhelming majority of D.C. residents desire statehood. On Jan. 3, they applauded Mayor Adrian Fenty’s (D) inaugural speech when he demanded statehood for the nation’s capital.” While running for Mayor, Fenty said he would not be a White House guest at President Bush’s Congressional speech since Bush did not support D.C.’s quest for Congressional voting representation. Fenty decided to attend Bush’s January 2007 speech as a guest of then-Speaker of the House Nancy Pelosi, not the White House. He had received invitations from both. Fellow Democrat Former Mayor Anthony Williams sat with Bush’s wife during Bush’s speech.

What actually is blatantly unfair is that for hundreds of years, D.C. residents have had no voting representation in the U.S. Congress. Since Congress must approve almost everything passed by the D.C. government, D.C. residents have basically no control over local issues and very little influence on national and international matter. Let’s end this unfairness by making D.C. a state.