Posted By: Chrisanne Gultz, Jenn Hancock, Christopher Heo, Alexandra Hewlett, Chad Heywood and Duane Jones
April 3, 2015
Pursuant to the United States Constitution (Constitution), the District of Columbia (D.C.) has no voting representation in Congress. It has been afforded a non-voting Delegate but formal voting rights have been denied.
In response to D.C. having no formal voting rights, former Connecticut Senator Joe Lieberman stated that, “The United States is the only democracy in the world that denies voting representation to the people who live in its capital city.” To correct the situation, Lieberman and Orrin Hatch, Senator of Utah and current President Pro Tempore of the United States Senate, proposed in 2009 S. 160 during the 111th Congress, to give D.C. at least one seat in the House of Representatives, to increase the size of the House of Representatives from 435 to 437 members, and to call for redistricting state representative allocations on the basis of population.
Advocates of voting representation argue that as citizens of the United States, residents of D.C. should have the same right to determine how they are governed as citizens of a state. Furthermore, Justice Hugo Black, in his opinion in Wesburry v. Sanders, explained that the right to vote is fundamental. He stated that, “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” But, is it constitutional to afford D.C. voting rights in Congress through legislation?
Based on the language of the Constitution and the view taken by the current Conservative majority of the Supreme Court, any legislation affording D.C. voting rights in the House of Representatives would likely be considered constitutional. On the other hand, legislation affording D.C. voting rights in the Senate would be unconstitutional.
The History of District of Columbia Voting rights.
In 1783 during the Congressional meeting in Philadelphia, an anti-government protest of more than 400 soldiers of the Continental Army besieged the members in what has become known as the Pennsylvania Mutiny. This event emphasized the need for the national government not to rely on any state for its own security. Five years later, in 1788, James Madison addressed this issue in Federalist No. 43, in which he argued that the new federal government required authority over a national capital in order to provide for its maintenance and safety.
The framers of the Constitution established the Supremacy Clause which states in Article VI, cl. 2 that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land” (emphasis added). This indicates that the framers considered the Constitution to be supreme in everything that has been included within its framework, which would encompass the District Clause.
Article I, § 8, cl. 17, or the District Clause, permits the establishment of a “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.” Accordingly, the passage of the Permanent Seat of Government Act (Act) in July 16, 1790 established the area in which the District was to be placed. That Act was not without serious debate, which ultimately was only pacified with money to have the federal government assume the states’ Revolutionary War debt. It appears even the seat of government has its price. The Act also established the geographic size of “not exceeding ten miles square” which is the exact descriptive wording currently within Article I, § 8, cl. 17 indicating the framers intended at the time for the seat of government to be a “District” and not a “State.”
The framers could not have foreseen during post-Revolutionary War times there would be disenfranchisement of “the people” inhabiting the seat of government. In fact, James Madison’s Federalist No. 43 would tend to support the notion that the framer’s intention involved providing full voting rights to D.C. residents, “as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them.” Furthermore, the safety and maintenance of the D.C. as described in Federalist 43 was in response to the Pennsylvania Mutiny which occurred five years earlier.
On February 27, 1801, Congress adopted the District of Columbia Organic Act of 1801, which established a new territorial government for the whole District of Columbia. The Organic Act granted Congress exclusive control over D.C., causing the loss of voting rights of District residents because D.C. was no longer a part of any state.
In 1961, the 23rd Amendment was adopted, granting D.C. residents the right to vote for the President and Vice President and three votes in the Electoral College. As a result, 1964 was the first time that the residents of D.C. could participate in a presidential election. In 1971, Congress granted D.C. the right to elect a non-voting delegate to the House of Representatives. However, D.C. has no voting representation in Congress. It has been afforded a non-voting Delegate but has no formal voting rights.
Today, D.C. is far more populous than the framers could have imagined and now spans 68.3 square miles and is home to more than 658,000 people, making it the 23rd largest city in the United States. However, these residents continue to be denied the enjoyment of the same privileges as all other taxpayers in the United States. In other words, residents of D.C. have the duty to pay taxes and obeying the laws imposed by the government, without the fundamental right to vote for representation in the Congress which controls such matters. This undermines the theory of a democratic country that the Constitution is based on, as voting was and still is the basis of democracy.
Why Do the Parties Support or Oppose District of Columbia Voting Rights?
Proponents of D.C. voting rights claim that the legislative goal of the measure is to enfranchise the over 658,000 people living in D.C. Given the nation’s rhetorical commitment to equal rights for all and the importance of voting, this is an admirable goal. Democrats point out that it is ironic that the residents of our nation’s capital are denied congressional representation and argue that there is no legitimate policy reason for it. However, this could be done with greater constitutional certainty by assigning Maryland residential status to those living in D.C. and reducing D.C. city limits. Even more certain would be a Constitutional amendment. Therefore, the focus on a constitutionally ambiguous approach probably points to political motivations. Notably, the Democratic party has been the most supportive of measures to give D.C. statehood or representation in either the House or the Senate. It is politically advantageous for the Democratic Party to confer voting rights to D.C. residents who are typically socioeconomically disadvantaged and align with Democrats.
For those same reasons, opponents would prefer that D.C. voting rights measures fail. It would be a political loss for Republicans to allow D.C. to gain federal representation since it is probable that the Democrats would gain seats. Republicans argue that they have practical reasons for opposing D.C. representation. On March 20, 2007, the Senate Republican Policy Committee issued a position paper on a D.C. voting rights bill, H.R. 1433. That bill would have also created an additional seat for Utah to placate concern amongst Republicans about the assuredly Democratic seat to be created for D.C. However, Republicans remained concerned about the constitutionality of the measure and argued that the court battles would leave D.C. residents in “limbo” about their rights to federal representation. Instead, the committee suggested a Constitutional amendment as the best way to quickly and legally grant D.C. residents federal representation. Democrats argue that the constitutionality issue is an excuse to deny voting rights to the more than 658,000 people living in D.C., the majority of whom are African-American. The accusation is not entirely groundless given that when Lyndon B. Johnson considered D.C. statehood, the white Southern Democrat-led Congress resisted because they preferred to avoid an increase in black colleagues. However, the nation has come a long way since the 1960s in racial politics, so the primary motivation for blocking D.C. representation is likely more partisan than racial.
District of Columbia voting rights in the House of Representatives is Constitutional.
Article 1, § 2 Analysis
Giving D.C. voting rights in the House of Representatives by legislation would be constitutional. The composition of the House of Representatives is defined in Article I, § 2, cl. 1 of the Constitution and reads as follows: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each state shall have the qualifications requisite for Electors of the most numerous Branch of the state legislature” (emphasis added).
The language of Article I, § 2 is ambiguous on its face. Due to such ambiguity, most legislative proposals to give D.C. Congressional voting rights focus on the House, and not the Senate. The language must be analyzed in depth to better understand the meaning of the clause. The most important part of this clause, in regards to the current issue, is that which reads “the people of the several states.” The meaning of this clause may differ based on the jurisprudential view taken; of which there are two: Secular Natural Law and Formalism. However, either view arrives at the conclusion that giving D.C. voting rights in the House of Representatives is constitutional.
Secular natural law was the predominant idea at the time of the creation of the Constitution. Law, rather than being divinely ordained or interpreted, exists inherently in nature and is to be discovered. Natural law proposes inalienable rights, including the right to vote, which are retained by the people and not given to them by their government. Secular Natural thinkers believe that the language of the Constitution is not meant to create law but instead affirms existing natural law.
Article I, § 2, cl. 1 states that Representatives are chosen by “the people of the several states.” Accordingly, Natural law thinkers would interpret this phrase to apply to the people themselves, and not the state governments. Therefore, any legislation giving D.C. voting rights in the House of Representatives would not be contradictory to the Constitution.
On the other hand, Formalism rejects the notion of natural law and instead proposes that the force of law comes from authoritative declarations. Under this idea, law is created when it is written down, such as a physical Constitution. Therefore, rights do not exist if they are not protected explicitly in the Constitution. A Formalist, such as Justice Scalia, would interpret words as they are written at face. This idea was popular in the late 19th and early 20th centuries and has seen a resurgence in the conservative majority of the modern Court as neo-formalism.
Formalist analysis of this language leads to the same conclusion as the natural secular law analysis. Of particular importance when analyzing with a formalist viewpoint is the phrase “of the several states.” Though it could be argued that D.C. is not a state and therefore does not fall within the meaning of this phrase, this does not fit the strict textual analysis that a formalist would apply. The presence of the word “several” before “states” shows that this phrase is looking at the combination of all the states as one entity, which means it is, in effect, referring to the country as a whole. Because D.C. most assuredly has people residing there and because D.C. is also part of the country, the phrase “people of the several states” would not be violated by any legislation giving D.C. voting rights in the House of Representatives. Therefore, any such legislation would not violate Article 1, § 2, cl. 1 and would therefore be constitutional.
District of Columbia Voting Rights in the Senate is Unconstitutional.
Giving D.C. voting rights in the Senate by legislation would be unconstitutional. The composition of the Senate is defined in Article I, § 3, cl. 1 of the Constitution and reads as follows: “The Senate of the United States shall be composed of two Senators from each State…and each Senator shall have one Vote.” (emphasis added). This clause shows that the voting members of the senate must be from each state. Therefore, legislation that gives the D.C., which is not a state, voting rights in the Senate would likely be found unconstitutional.
The language of Article I, § 3 of the Constitution is unambiguous on its face, however it should still be analyzed in some depth to fully understand the meaning of this clause. The most important part of this clause, in regards to the present issue, is that which reads “from each State.” The meaning of “State” in this clause may differ based on what kind of jurisprudential view is taken and in order to better understand the intent of the framers of the Constitution in constructing this clause, it is important to take different views in analyzing this portion of the Constitution.
An example of the differing views on the meaning of “state” can be found in The Civil Rights Cases of 1883. These cases addressed the constitutionality of legislation passed by the then radical Republican Congress that sought to enforce the 14th Amendment through legislation. One of the underlying issues in these cases was whether the meaning of “State” in § 1 of the 14th Amendment referred to the people of the state, a secular natural law view taken by the Congress, or referred to the state government, the formalist view taken by the Supreme Court.
In applying these interpretations to the status of the D.C., two differing conclusions can be drawn. If adopting a secular natural law view, state would refer to the people of the D.C. and not any formal state government. Assuming that legislation was passed by Congress that expressly allowed D.C. to have voting rights in the Senate, a likely argument to uphold the constitutionality of such legislative action would be grounded in the secular natural law view that the people of the D.C. make it a state. Although such an interpretation may be found to be somewhat valid by itself, looking at the entire Article shows that this secular natural law view of the meaning of “state” for the purposes of Senatorial representation may not have been intended. This is evidenced by the wording in Article I, § 2, cl. 1 which expressly describes what the secular natural law view is intending regarding the meaning of “state” when it says “by the People of the several States…” which is different from what is found in Article I, § 3, cl. 1. Articulating this in Article I, § 2, cl. 1 but not in § 3, cl. 1 shows that the framers of the Constitution likely sought to specify the “state” they were referring to in their construction. Because the secular natural law view is expressed in § 2 but not in § 3, it can be surmised that the meaning of “state” in § 3 refers to the state government and not the people.
It should be noted that there is a way to interpret the formalist view of “state” meaning “state government” under the secular natural law theory such that “state government” actually refers to the people. James Madison expressed in Federalist No. 10 that state governments are comprised of representatives in order to counter the majoritarian difficulty. In Madison’s writings, the representatives are supposed to be extensions of the people, therefore the government which is made up of those representatives can be construed to be, at its core, the people. If this view is taken and applied to the language of Article I, § 3, cl. 1, it can be inferred that, although the clause says only “state” without any mention of “people” as articulated in Article I, § 2, cl. 1 could still be said to ultimately refer to the people of the state.
As can be seen, the meaning of “State” in Article I, § 3 of the Constitution depends on whether a formalist view or a secular natural law view is taken. Under the formalist view, any legislation giving D.C. voting rights in the Senate would most likely be considered unconstitutional because D.C. is not a state in the formalist sense. Under the secular natural law view, however, giving these voting rights to D.C. would be constitutional because the state is considered the people which means a formal state government is not required. Based on the fact that the current Supreme Court consists of a conservative majority that is likely to take a formalist view of the language in Article I, § 3, any legislation that is passed giving D.C. voting rights in the Senate would likely be found to be unconstitutional.
Other Constitutional Considerations.
There has been one instance where D.C. was able to secure voting rights as if they were a state, however this was not done through legislation and was, instead, done through Constitutional amendment. The 23rd Amendment deals with the “District” and the number of electors for President and Vice-President. The amendment states: “A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State,” (emphasis added).
The wording of “if it were a State” in this amendment, as written by Congress, seems to be a reaffirmation of the framers’ intent to make the seat of government a district and not a state. This intent is seen in more detail when looking at considerations of the House of Representatives when they discussed the adoption of the 23rd Amendment. The House specifically wanted to ensure that the amendment “would not make the District of Columbia a State. It would not give the District of Columbia any other attributes of a State…” before agreeing to pass the amendment. (H.R. Rep. No. 1698, 86th Cong., 2d Sess. 1, 2 (1960)).
However, this argument that the 23rd Amendment intended for DC to not be a state through the words “if it were a State” is not persuasive. Amendments are permitted because the original Constitution did not provide for a certain liberty or right, in this case voting rights for the District of Columbia. It is unlikely that in the process of providing for a certain liberty or right an amendment would also preclude a possible future exercise of something related to that right. Furthermore, the word “if” suggests there might have been an intent to allow the district to become a state in the future, because giving it rights as if it were a state would seem to suggest that Congress was willing to move towards recognizing D.C. as a state. A good illustration of this idea can be found in a paraphrasing of the “Duck Test.” “If it looks like a State, operates like a State, and votes like a State, then it must be a State.” (emphasis added)
It seems that Congress adopted a formalist interpretation of the phrase “if it were a State” when adopting the 23rd Amendment. This interpretation seems to show Congress did not think D.C. could be considered a state when applying parts of the Constitution. This interpretation, however, is not persuasive. Although the intent to not allow D.C. to ever be considered a state was present at the time of adopting the amendment, this amendment cannot supersede what was originally meant by the framers at the time of the adoption of the constitution, such as the language found in Article 1. Because the purpose of constitutional amendments is to provide for a certain liberty or right that was not granted in the original constitution, should D.C. not be able to secure voting rights through legislation due to constitutional limitations, it seems possible for an amendment to be passed to allow D.C. voting rights in Congress, just like the 23rd Amendment did in providing them voting rights in the electoral college.
In conclusion, legislation giving D.C. voting rights in the House of Representatives would be considered constitutional and similar legislation for the Senate would be found unconstitutional. The reason for this discrepancy is the way the constitution structures the selection of representatives and senators. The House is chosen by “the people of the several states” whereas the Senate is by the “states.” This would not make a difference to a secular natural law thinker who would conceptualize these two phrases as an anomaly, namely that the state means ‘the people of the several states’.
However, under the current jurisprudential theory of neo-formalism the term state would be the institutional body of the state and not the people of the states. Thus, the neo-formalist would see a bill for voting rights in the Senate as unconstitutional. However, even neo-formalist could not see ‘the people of the several states’ as meaning the states themselves. Moreover, it might be argued that neo-formalist would not even concede this much because it says people of the several states and the people of D.C. are not a part of any institutional body that a neo-formalist would recognize as a state. Thus, under current jurisprudential standings a neo-formalist courts would likely find that a bill for voting rights for D.C. in the house would be constitutional and the Senate unconstitutional.