[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]





                  DISTRICT OF COLUMBIA FAIR AND EQUAL 
                    HOUSE VOTING RIGHTS ACT OF 2006

=======================================================================

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                                   ON

                               H.R. 5388

                               __________

                           SEPTEMBER 14, 2006

                               __________

                           Serial No. 109-140

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


                                 _____

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel

                                 ------                                

                    Subcommittee on the Constitution

                      STEVE CHABOT, Ohio, Chairman

TRENT FRANKS, Arizona                JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee        JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama              ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana          MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin                CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida

                     Paul B. Taylor, Chief Counsel

                      E. Stewart Jeffries, Counsel

                          Hilary Funk, Counsel

                 Kimberly Betz, Full Committee Counsel

           David Lachmann, Minority Professional Staff Member


                            C O N T E N T S

                              ----------                              

                           SEPTEMBER 14, 2006

                           OPENING STATEMENT

                                                                   Page
The Honorable Steve Chabot, a Representative in Congress from the 
  State of Ohio, and Chairman, Subcommittee on the Constitution..     1
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Ranking Member, Subcommittee on the 
  Constitution...................................................     4
The Honorable Eleanor Holmes Norton, a Representative in Congress 
  from the District of Columbia..................................     5
The Honorable Tom Davis, a Representative in Congress from the 
  State of Virginia..............................................     5
The Honorable Chris Cannon, a Representative in Congress from the 
  State of Utah, and Member, Committee on the Judiciary..........     7
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Member, Subcommittee on the 
  Constitution...................................................     8
The Honorable Steve King, a Representative in Congress from the 
  State of Iowa, and Member, Subcommittee on the Constitution....     9
The Honorable Robert C. Scott, a Representative in Congress from 
  the State of Virginia, and Member, Subcommittee on the 
  Constitution...................................................     9
The Honorable Melvin L, Watt, a Representative in Congress from 
  the State of North Carolina, and Member, Subcommittee on the 
  Constitution...................................................    10
The Honorable Chris Van Hollen, a Representative in Congress from 
  the State of Maryland, and Member, Subcommittee on the 
  Constitution...................................................    10

                               WITNESSES

The Honorable Jon M. Huntsman, Jr., Governor of Utah
  Oral Testimony.................................................    12
  Prepared Statement.............................................    13
Dr. John Fortier, Research Fellow, American Enterprise Institute
  Oral Testimony.................................................    14
  Prepared Statement.............................................    16
Mr. Adam H. Charnes, Attorney, Kilpatrick Stockton LLP
  Oral Testimony.................................................    20
  Prepared Statement.............................................    23
Mr. Jonathan Turley, J.B. & Maurice C. Shapiro Professor of 
  Public Interest Law, The George Washington University Law 
  School
  Oral Testimony.................................................    49
  Prepared Statement.............................................    51

                                APPENDIX

               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Steve Chabot, a 
  Representative in Congress from the State of Ohio, and 
  Chairman, Subcommittee on the Constitution.....................    93
Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas.............   100
Letter from Greg J. Curtis, Speaker of the House, and Josh L. 
  Valentine, President of the Senate, Utah Legislature, to 
  Chairman F. James Sensenbrenner, Jr. in support of H.R. 5388, 
  September 13, 2006.............................................   104
Testimony of Anthony A. Williams, Mayor, District of Columbia....   105
Statement of the District of Columbia Affairs Section of the 
  District of Columbia Bar.......................................   110
Statement of Charles Orndorff, the Conservative Caucus, Inc......   115
Statement of the American Bar Association........................   122
Letter from Lawrence H. Mirel, Wiley Rein and Fielding LLP, to 
  Chairman Chabot and Ranking Member Nadler, September 20, 2006..   125
Statement of Lawrence H. Mirel, Wiley Rein and Fielding LLP......   128
Testimony of the DC Statehood Green Party........................   154
Latham and Watkins LLP, ``Supplemental Analysis Regarding 
  Possible D.C. Voting Legislation by Representative Thomas M. 
  Davis, III (R-VA),''...........................................   158
Latham and Watkins LLP, ``Analysis Regarding Possible D.C. Voting 
  Legislation by Representative Thomas M. Davis, III (R-VA),''...   161
Memorandum from Congressional Research Service, 
  ``Constitutionality of Congress Creating an At-Large Seat for a 
  Member of Congress''...........................................   166
Letter in support of H.R. 5388 from Robert C. Keithan, Director, 
  Unitarian Universalist Association of Congregations, to 
  Representative Tom Davis, May 18, 2006.........................   170
Letter in support of H.R. 5388 from Kay J. Maxwell, President, 
  League of Women Voters, to Members of the House Judiciary 
  Committee, May 31, 2006........................................   171
Letter in support of H.R. 5388 from Marc H. Morial, President and 
  CEO, National Urban League, June 12, 2006......................   172
Letter in support of H.R. 5388 from Robert D. Evans, Director, 
  American Bar Association, to Chairman F. James Sensenbrenner, 
  Jr., June 16, 2006.............................................   173
Letter in support of H.R. 5388 from Dr. Clark Lobenstein, 
  Executive Director, the InterFaith Conference of Metropolitan 
  Washington, to Chairman F. James Sensenbrenner, Jr., June 21, 
  2006...........................................................   177
Letter in support of H.R. 5388 from Joslyn N. Williams, 
  President, Metropolitan Washington Council, AFL-CIO, June 27, 
  2006...........................................................   178
Letter in support of H.R. 5388 from Melvin S. Lipman, President, 
  American Humanist Association, July 14, 2006...................   180
Letter regarding H.R. 5388 from Ronald Jackson, Executive 
  Director of D.C. Catholic Conference, and Michael Scott, 
  Coordinator of D.C. Legislative Network, the Archdiocese of 
  Washington, July 20, 2006......................................   181
Letter in support if H.R. 5388 from Patricia M. Wald to Chairman 
  F. James Sensenbrenner, Jr., July 25. 2006.....................   182
``Jewish Organizations Support H.R. 5388,'' Letter in Support of 
  H.R. 5388, July 25, 2006.......................................   183
Letter in support of H.R. 5388 from the Leadership Conference of 
  Civil Rights, September 13, 2006...............................   184
Memo in support of H.R. 5388 from the Leadership Conference on 
  Civil Rights...................................................   186
Letter in support of H.R. 5388 from Ralph G. Neas, President, and 
  Tanya Clay House, Director of Public Policy, People for the 
  American Way, September 13, 2006...............................   188
``Reform Jewish Leader Urges Committee to Support Congressional 
  Representation for Washington, D.C. Residents..................   189
Letter in support of H.R. 5388 from Rabbi David Saperstein, 
  Director and Counsel, Religious Action Center of Reform 
  Judaism, September 13, 2006....................................   190
Letter in support of H.R. 5388 from Hilary O. Shelton, Director, 
  National Association for the Advancement of Colored People 
  (NAACP) to Members of the House Commitee on the Judiciary, 
  September 13, 2006.............................................   191
``Interfaith Coalition Supports H.R. 5388,'' Letter in support of 
  H.R. 5388 from a broad coalition of religious organizations, 
  September 13, 2006.............................................   193
Letter in support of H.R. 5388 from Richard T. Foltin, 
  Legislative Director and Counsel, and David Berstein, Executive 
  Director of the Washington Chapter, The American Jewish 
  Committee, September 14, 2006..................................   194
Letter in support of H.R. 5388 from Chellie Pingree, President 
  and CEO, Common Cause, September 20, 2006......................   195
``Support Democracy in Our Nation's Capital,'' The Coalition to 
  Stop Gun Violence..............................................   196

 
  DISTRICT OF COLUMBIA FAIR AND EQUAL HOUSE VOTING RIGHTS ACT OF 2006

                              ----------                              


                      THURSDAY, SEPTEMBER 14, 2006

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:12 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Steve 
Chabot (Chairman of the Subcommittee) presiding.
    Mr. Chabot. The Committee will come to order.
    This is the Constitution Subcommittee. I am Steve Chabot, 
the Chairman of the Committee. We wish everybody a good 
afternoon, and we welcome you to the House Subcommittee on the 
Constitution's legislative hearing on H.R. 5388, the ``District 
of Columbia Fair and Equal House Voting Rights Act of 2006.''
    The District of Columbia was created by article I, section 
8, clause 17 of the United States Constitution, which provides 
that ``Congress shall have power to exercise exclusive 
legislation in all cases whatsoever over such district, as may, 
by cession of particular states and the acceptance of Congress, 
become the seat of the government of the United States.''
    The rationale for this provision was set forth by James 
Madison in Federalist Paper No. 43, in which he wrote, ``The 
indispensable necessity of complete authority at the seat of 
Government carries its own evidence with it. It is a power 
exercised by every legislature of the union, I might say of the 
world, by virtue of its general supremacy. Without it, the 
public authority might be insulted and its proceedings 
interrupted with impunity.''
    The emphasis for creating a capital city separate from the 
control of any State occurred in 1783, when a crowd of 
Revolutionary War soldiers protested outside the building in 
Philadelphia in which the Continental Congress was meeting. The 
Continental Congress requested assistance from the State of 
Pennsylvania, but that State's government refused to send the 
militia, forcing the Congress to retreat to New Jersey.
    The actual creation of the District of Columbia occurred 
during the first Congress, when that body accepted the 
cessions, land, of Maryland and Virginia. From 1780 until the 
capital officially moved to the District of Columbia in 1800, 
the residents of the District were able to vote for the 
representatives and senators of the States from which they had 
been seated.
    Once the District was formally adopted as the seat of 
Government, however, the residents of the District ceased to 
have voting representation in Congress. Evidence of the 
Founders' intent with respect to representational rights of 
District residents is sparse. Whatever the intent of the 
Founders, the residents of the District have sought 
representation for years.
    For example, in 1978, Congress passed an amendment to the 
Constitution that would have given the District of Columbia 
voting representation in both the House and the Senate. 
However, that resolution only received the approval of 16 of 
the 38 States necessary to ratify an amendment to the 
Constitution, and it expired in 1985.
    District residents also sought to obtain voting 
representation through the courts. In 2000, the United States 
District Court for the District of Columbia held that District 
residents did not have a constitutional right to representation 
in Congress. The court held that the language of article I, 
section 2 of the Constitution ``makes clear just how deeply 
congressional representation is tied to the structure of 
statehood.''
    While acknowledging that the court could not give relief to 
District residents, the court did urge a political solution to 
the problem. H.R. 5388 represents one possible political 
solution.
    Introduced by Representative Tom Davis of Virginia on May 
16, 2006, the bill has 40 cosponsors, including Delegate 
Eleanor Holmes Norton, who is with us today. H.R. 5388 would 
permanently increase the size of the House of Representatives 
to 437 Members from 435, which it is now, and would give one 
additional seat to the District of Columbia.
    The bill would give the other seat to Utah, which missed 
out on an additional representative in the House by 
approximately 800 residents during the 2000 apportionment. The 
Utah seat would be at-large, meaning that Utah residents would 
vote both for their geographic representative and for the 
statewide at-large representative, until the next apportionment 
prior to 2012 congressional elections.
    The bill also contains a non-severability clause, which 
ensures that if any section of the bill is struck down as 
unconstitutional, the whole bill will be rendered ineffective.
    Many commentators have noted that H.R. 5388 is a novel 
solution to what has been a pernicious and vexing problem for 
Congress for the last 200 years. However, that novelty also 
leads to new and challenging constitutional questions.
    For instance, in granting the District of Columbia a seat 
in the House of Representatives, the bill potentially puts two 
sections of the Constitution in conflict. On one hand, 
supporters of the bill claim that the District Clause gives 
Congress plenary authority over the District of Columbia, 
including the power to give it representation in the House of 
Representatives.
    On the other hand, some scholars point to the language of 
article I, section 2, that the House of Representatives shall 
be ``chosen by the people of the several states,'' and maintain 
that the District, as a non-State, cannot be given voting 
representation merely through exercise of the District Clause.
    Similarly, H.R. 5388's grant of an at-large seat to the 
State of Utah also pits two constitutional principles against 
each other. Under the Constitution, Congress enjoys wide 
authority both to apportion the seats of the House of 
Representatives and to make or alter regulations relating to 
the times, places and manner of holding elections.
    However, the Supreme Court has held that article I, section 
2 of the Constitution requires that, ``As nearly as 
practicable, one man's vote in a congressional election is to 
be worth as much as another's.''
    The question then arises whether this principle of one 
person, one vote, is violated by a bill that some might 
characterize as giving one person two votes, in the State of 
Utah, for a period of 6 years.
    These are complicated and interesting issues, and we are 
fortunate to have a distinguished panel of experts with us 
today that can help us to understand the constitutional 
implications of this legislation.
    I also would like to thank the Governor of Utah for 
appearing before this Subcommittee to explain the importance of 
the bill to his State, Utah.
    Finally, I would note that this legislation is supported by 
many civil rights groups, including the Leadership Conference 
on Civil Rights. And we have the distinguished gentleman, Wade 
Henderson, here with us this afternoon that we worked very 
closely with during the hearings and legislative consideration 
of the Voting Rights Act reauthorization, which the President 
signed into law this July. And Mr. Henderson and many other 
civil rights leaders were present with us at that ceremony.
    And we appreciated your involvement in that, Mr. Henderson.
    As always, we look forward to working with our friends in 
the civil rights community to ensure that all voices are heard 
in this process.
    I also would like to acknowledge the presence of a number 
of other people. One of those people, who has just entered the 
room, Mr. Tom Davis, who represents one of the districts in 
Virginia. And Mr. Davis, as I had mentioned before, is the 
principal sponsor of this legislation.
    We also have Delegate Eleanor Holmes Norton, who 
represents, obviously, the District of Columbia and has done so 
so ably for quite a number of years now.
    We also have Chris Cannon here, as well.
    I mention these particular Members because they are not 
Members of this Subcommittee, but are--at least Mr. Davis is a 
Member of the Judiciary Committee. The other two I mentioned 
are not--the Judiciary Committee, but not the Subcommittee.
    I apologize. Mr. Cannon is a Member of the Judiciary 
Committee, but not this Subcommittee. And, actually, he is the 
Chairman of one of the Judiciary Subcommittees, as well.
    And I want to reiterate the Committee's policy as it 
relates to non-Member participation, which is as follows. By 
unanimous consent, non-Judiciary Committee Members may submit 
statements for the record. They may also participate in the 
question-and-answer portion of the hearing and in opening 
statements, as well, but their time must be yielded by a 
Subcommittee Member.
    Judiciary Committee Members who are not Members of the 
Subcommittee may also participate under these same rules.
    Without objection, the non-Members of the Subcommittee will 
be permitted to submit statements for the record and they may 
ask questions, subject to being yielded time by another Member 
of the Subcommittee, as well.
    And I want to reiterate that this is generally not the 
Committee's policy to have non-Members sit on the dais. So the 
events today don't necessarily bind any future actions of the 
Committee, but welcome them here to the dais this afternoon.
    I would also like to recognize several other Members, 
distinguished people who are here, and not in any particular 
order. But I guess it is, since we will acknowledge and thank 
the Mayor of Washington, D.C., Mayor Anthony Williams, for 
being with us this afternoon and for his service to the 
community over these years.
    We have Councilmember Carol Schwartz here with us, as well; 
Councilmember Dave Catania--I hope I am pronouncing that 
correct; Councilmember Adrian Fenty, who prevailed in the 
Democratic primary for mayor this year, as well.
    And congratulations on that.
    And we have Shadow Senator Paul Strauss with us this 
afternoon. We have Mary Cheh, who won the Democratic primary in 
Ward 3.
    And have I failed to recognize any other members of the 
council? If so, I apologize. Having been a member of Cincinnati 
City Council myself, I definitely want to recognize others.
    I am sorry. Kwame Brown is also here, another Member of 
Council.
    So we welcome you all here this afternoon and thank you for 
attending.
    At this time, I would recognize the gentleman from New 
York, Mr. Nadler, who is the Ranking Member, to make an opening 
statement, if he would like to do so.
    Mr. Nadler. Thank you, Mr. Chairman. I am interested to 
hear that, like the Supreme Court case of Bush v. Gore, our 
proceedings today have no precedental value.
    Mr. Chairman, I want to welcome our distinguished witnesses 
and also welcome our colleagues who have worked so very hard in 
the cause of equal voting rights for the citizens of the 
District of Columbia.
    The District is ably represented by our colleague, Eleanor 
Holmes Norton, who has been a tireless advocate for the 
citizens of our Nation's Capital. The gentleman from Virginia, 
Mr. Davis, has likewise taken on this cause and deserves great 
credit for his work to move this effort forward.
    We will hear arguments concerning some of the very 
difficult legal issues surrounding the approach to D.C. voting 
rights taken in this bill, as well as questions arising from 
the portions of this bill pertaining to Utah. I look forward to 
that testimony.
    Some of these legal issues are quite challenging, and we 
owe it to the citizens of the District and of Utah, as well as 
the rest of the nation, to get it right.
    But before we get into the technical questions, I want to 
just reiterate the basic and most important thing at stake 
here. It is a disgrace, a blot on our nation, that the citizens 
of our Capital City do not have a voice in Congress.
    Whatever technical issues there may be with respect to 
rectifying this problem, we must never lose sight of the fact 
that our democracy is permanently stained by the 
disenfranchised group of citizens who pay taxes, serve in our 
wars, work in our Government and bear all the responsibilities 
of citizenship.
    Whether you took a cab to work or rode the Metro or bought 
a cup of coffee or walked on a sidewalk or were protected by a 
police officer or got a parking ticket or participated in this 
hearing, your safety, your livelihood, every aspect of your 
life, including this hearing, was made possible by people who 
have no vote in our democracy. There is no excuse for that.
    If we are to have the audacity to hold ourselves out to the 
world as a beacon of freedom and democracy, if we want to 
lecture other countries about the importance of freedom and 
democracy, as this Congress and the President regularly like to 
do, we need to clean up our own House and Senate.
    So I thank you, Mr. Chairman. I welcome our witnesses and 
our colleagues, and I look forward to the testimony.
    And I yield the balance of my time to the gentlelady from 
the District of Columbia.
    Ms. Norton. I thank the gentleman for his kindness in 
yielding.
    I certainly wanted time to thank Chairman Sensenbrenner and 
Chairman Chabot for their courtesies, especially you, Mr. 
Chabot, for presiding at this hearing and for your work to 
prepare us.
    I would like to certainly thank all of the witnesses who 
have come forward. You are going to be very helpful to us.
    I want to especially thank Governor Huntsman, who had to 
come further than most of us, for coming all the way from Utah.
    I would be remiss, Mr. Chairman, if I did not thank you for 
your work on the recently reauthorized Voting Rights Act. And 
if I didn't tell you how much that work means on its own for 
the District of Columbia, I need to tell you, sir, that the 
residents of the District of Columbia identify with your work 
on the Voting Rights Act and see a direct link between that 
work and the denial of voting rights for 200 years.
    For the people who live here, this is a district that is 
two-thirds African-American, but of every background, we have 
been denied the right to vote.
    I want to acknowledge the presence of the godmother of the 
civil rights movement, who, with John Lewis, the only two who 
are living, and who designed the work that led to march on 
Washington and the civil rights statutes.
    We hope for a bipartisan solution, the same solution that 
Chairman Davis and I have spent 4 years in crafting.
    And I thank you for all your courtesies.
    Mr. Chabot. Does the gentleman yield back? The gentleman 
actually has a little more time.
    Mr. Nadler. Yes, I yield back.
    Mr. Chabot. Okay, the gentleman yields back.
    The gentleman from Arizona, a Member of the Committee, Mr. 
Franks, is recognized for 5 minutes.
    Mr. Franks. Thank you, Mr. Chairman. I would like to yield 
2\1/2\ minutes to Mr. Davis, please.
    Mr. Davis. I thank my friend for yielding.
    I think the bill before this Subcommittee is unique and a 
creative legislative solution, which provides a win-win 
opportunity to the Congress. I hope the Subcommittee will 
consider this with an open mind.
    For 205 years, the citizens of the District have been 
denied the right to elect their own fully empowered 
representative to the nation's legislature. This historical 
anomaly has happened for a number of reasons: inattention, 
misunderstanding, a lack of political opportunity, and a lack 
of will to compromise to achieve the greater good.
    I have long stated it is simply wrong for the District to 
have no directly elected national representation. Let's be 
real. How can you argue with a straight face that the Nation's 
Capital shouldn't have some direct congressional 
representation? For more than two centuries, D.C. residents 
have fought in 10 wars, have paid billions of dollars in 
Federal Taxes. They have sacrificed and shed blood to help 
bring democratic freedoms to people in distant lands.
    Today, American men and women are fighting for democracy in 
Baghdad, and here in the Nation's Capital, residents lack the 
most basic democratic right of all.
    What possible purpose does this denial of rights serve? It 
doesn't make the Federal district stronger. It doesn't 
reinforce or reaffirm congressional authority over D.C. 
affairs. In fact, it undermines it and offers political 
ammunition to tyrants around the world to fire our way.
    In spite of my concerns, I was long frustrated by the lack 
of any politically acceptable solution to this problem. That 
all changed after the 2000 census, when Utah missed picking up 
a new seat by less than a thousand people.
    Utah, as you know, contested this apportionment and lost in 
court. As I looked at the situation, I realized the 
predominance of Republicans in Utah and Democrats in the 
District and thought we might be able to fit them together.
    The D.C. Fair Act would permanently increase the size of 
Congress by two Members. The plan is intended to be partisan-
neutral. It takes political concerns off the table, or at least 
it should.
    After answering the political question, we moved on to 
address whether Congress, independent of a constitutional 
amendment, had the authority to give the District a voting 
Member. Through hearing testimony and expert opinions, we have 
established, by clear authority of Congress, to direct the 
political affairs of the District.
    As Ken Starr, a former appeals court judge here in the 
District, stood before my Committee, the authority of the 
Congress, he said, is awesome with respect to the District.
    We have also received the expert opinion of Viet Dinh, a 
Georgetown law professor and former Assistant Attorney General, 
asserting the power of Congress.
    Some legal scholars will disagree, but the courts have 
never struck down a congressional exercise of the District 
Clause. There is no reason to think the court would act 
differently in this case.
    It is now essentially a matter of political will as to 
whether D.C. receives a voting Member of Congress or not.
    And today I received a letter from our former colleague, 
J.C. Watts, offering his support. ``Your proposed legislation 
does a great job of balancing the achievable with the 
desirable,'' he wrote.
    The District is a wholly unique political entity. It isn't 
a State; it isn't a territory. States and territories have 
unique constitutional status, but so does the District. The 
District was formed to create a seat of Government, where the 
Federal Government could exist without interference from any 
one State. In a real sense, the District exists to create a 
safe place for democracy.
    I want to thank Eleanor Holmes Norton, Mayor Williams, the 
council, who have come a long way from the control board days, 
for their interest in this legislation, and my Ranking Member, 
Henry Waxman, for bringing this, and to you, Mr. Chairman, and 
to Chairman Sensenbrenner, for making this hearing possible 
today.
    Mr. Chabot. Thank you very much. The gentleman yields back 
to the gentleman from Arizona.
    Mr. Franks. Mr. Chairman, I would like to yield the 
remainder of my time to Mr. Cannon, please.
    Mr. Cannon. I thank the gentleman from Arizona.
    And, Mr. Chairman, thank you for holding this hearing.
    I would like to first associate myself with the comments 
made by the gentleman from Virginia, and also I would very much 
like to thank him for his leadership and work on this issue.
    I would also like to thank the delegate from the District 
of Columbia, Ms. Holmes Norton, for her work on this issue.
    As Mr. Davis said and, by the way, as Mr. Nadler said, as 
he was making his point--I would associate myself with his 
comment--that it is unconscionable that we have people who 
fight and die and live and serve in America without being able 
to vote.
    And so, as Mr. Davis pointed out, it is a matter now of 
political will. I think, having polled many of my Republican 
colleagues, that the Republicans have the will to do this. I 
think, also, the Democrats have the will to do it. And so I 
think this is a good day for America.
    I would also like to thank my governor for taking the time 
to come here today. This is a mark of how important this issue 
is Utah. I have literally known the Governor his whole life and 
almost all of my life. His gray hair notwithstanding, I am a 
little bit older, but he is a good friend and understands this 
issue and understands the importance of this issue.
    So I appreciate your being here, Mr. Governor.
    I have taken the position that this bill is good as it is. 
It currently contains an at-large provision. That makes my life 
easier, frankly. That means I don't have to run for re-
election, and Rob Bishop's and Jim Matheson's lives, as well.
    But I have also said that the important thing here is to 
actually have a new district in Utah and the voting rights in 
the District of Columbia. And so I am looking very much forward 
today to the insights and information we are going to get from 
this panel as to what is appropriate as we frame this issue for 
final passage on the floor.
    And I would just reiterate again in closing, before I yield 
back, how pleased I am to see that this issue has come to 
fruition, that the political will is here and that people in 
the District will actually have a vote.
    I have always thought this is an abomination that they did 
not, a historical anomaly that we can correct now. And it is 
also appropriate for Utah to have, as the next State that would 
get a seat, to have that additional seat.
    So I want to thank you, Mr. Chairman, again, for holding 
this hearing, and yield back the balance of any time that Mr. 
Franks has yielded to me.
    Mr. Chabot. The time has long since expired. So thank you 
very much. The gentleman's time has expired.
    We have been joined by several additional persons who we 
want to recognize this afternoon. We have another Member of 
Council, Vincent Gray, who just won the Democratic primary for 
D.C. Council Chairman and is also currently a Member of 
Council.
    We have been joined by Nancy Zirkin, also with the 
Leadership Conference on Civil Rights; Hilary Shelton, who is 
the head of the D.C. NAACP chapter.
    And we are so pleased to be joined by Ms. Dorothy Hite. For 
nearly half a century, Dorothy Hite has given leadership to the 
struggle for equality and human rights for all people. Her life 
exemplifies her passionate commitment for a just society and 
her vision of a better world.
    And we welcome you here this afternoon, Ms. Hite.
    I would, at this time, like to recognize the distinguished 
gentleman from Michigan, who is the Ranking Member of the Full 
Judiciary Committee. The gentleman from Michigan, Mr. Conyers, 
is recognized.
    Mr. Conyers. Thank you so much, Chairman Chabot.
    I only wish that we could get the photograph of everybody 
in this room right now, because this is a most historic and 
distinguished coming together of experts, Government officials, 
lovers of democracy, the witnesses, everybody.
    And I have got a picture, a jazz picture, where they number 
everybody in the room and then you identify, ``Gosh, I didn't 
know he was here or she was there,'' because we are at a 
historic moment.
    And for Chairman Chabot and to Jerry Nadler and Bobby 
Scott, Mel Watt, all of you here, here we are back in the 
Subcommittee on the Constitution of the United States House of 
Representatives Judiciary Committee. This is exactly where we 
were several months ago when the Voter Rights Act extension of 
1965 was taken up and worked on and deliberated.
    And there were as many imponderables, as much difficulty, 
as many constitutional questions as there are surrounding the 
discussion that will shortly take place here. We are up to it. 
We can handle it. We have done it before in this Subcommittee, 
and we will be doing it again, with your help.
    I go back a little ways in this, too, because I remember 
the late Joe Rawl, and what a wonderful spirit it is to have 
him watching over us. And Walter Fauntroy, for almost 20 years, 
who worked on this subject before us.
    There have been many that have sewn the seeds and laid the 
path that bring us right here where we are today. The 
Constitution gives the Congress the authority to rectify the 
issues.
    We will be in the courts, we know, but that doesn't bother 
anybody that I know within these walls today. But on the heels 
of the Voting Rights Act reauthorization, we must now address 
this longstanding voter inequity that we all know too much 
about already.
    The Congress, in a bipartisan spirit, has to work to 
protect the rights of the citizens of this great Capital City.
    And, Congressman, Chairman Chabot, your work on the Voting 
Rights Act distinguishes and gives you the complete authority 
to move and lead and guide us to where we have to go from here, 
from this historic meeting that brings us all here today. And I 
thank you so much.
    Mr. Chabot. Thank you very much, Mr. Conyers.
    The gentleman from Iowa, Mr. King, is recognized.
    Mr. King. Thank you, Mr. Chairman.
    And I am looking forward to the testimony on the part of 
the witnesses, and I am going to keep my remarks very short in 
order to help expedite this process, because I can see by the 
crowd here that there is a lot of intensity on this, and I 
really want to hear from the witnesses.
    I will say that I have a perspective that I would like to 
just inject into the thought process as this discussion moves 
forward. And that is, I happen to have a profound conviction 
that American citizens should be represented in the 
reapportionment process in America.
    And as I listened to the injustice described by Mr. Davis, 
I reflect upon the nine to 11 congressional seats that would be 
differently distributed across America if we counted citizens 
for our census as opposed to homosapiens.
    In other words, we have millions of illegals that are 
represented in the United States Congress, whether they can 
vote or not, because they are counted for redistricting 
purposes. And I believe that is a consideration we could keep 
in mind as we correct the injustices.
    But I just make that point, and I open my ears and yield 
back the microphone to hear the testimony of the witnesses.
    Thank you.
    Mr. Chabot. Thank you. The gentleman yields back.
    The gentleman from Virginia, Mr. Scott, is recognized for 5 
minutes.
    Mr. Scott. Thank you, Mr. Chairman. I, too, would just make 
a very brief comment so that we can get to the witnesses.
    Fighting for freedom abroad, when citizens right here in 
Washington, D.C., suffer without voting representation in 
Congress, no reasonable understanding of democracy can tolerate 
this denial of representation.
    So I look forward to working with the Committee Members to 
remedy this injustice. And we should proceed as expeditiously 
as we can and not let the details of whatever happens in Utah 
slow us up. We need to move as expeditiously as we possibly can 
to remedy this ongoing injustice.
    Thank you, Mr. Chairman. I yield back.
    Mr. Chabot. Thank you very much. The gentleman yields back.
    The gentleman from Florida, Mr. Feeney, is recognized.
    Okay, we are back to the gentleman from North Carolina. Mr. 
Watt is recognized.
    Mr. Watt. Thank you, Mr. Chairman. I thank you for having 
the hearing, and I will yield back the balance of my time in 
the interest of hearing the witnesses at some point.
    Mr. Chabot. Thank you very much.
    The gentleman from Maryland, Mr. Van Hollen, is recognized.
    Mr. Van Hollen. I thank you, Mr. Chairman. Thank you for 
holding this hearing and moving forward on this legislation.
    As the representative of the congressional district that 
borders right on the District of Columbia, I want to just say 
how much I hope that we will move this forward so we can get to 
the entire process quickly.
    It is absolutely unfair and unjust that one of my 
constituents on the Maryland side of the D.C. boundary is able 
to elect a Representative who can vote in Congress and the 
person right across the street from my congressional district 
does not have the ability to elect a Representative who can 
vote in Congress. That is wrong. We need to correct that.
    I want to thank my colleague, Representative Eleanor Holmes 
Norton, for her long efforts and her long championship of 
trying to get this through the Congress, not this bill, but 
other bills that she has pushed forward on this issue. She has 
been sort of indefatigable and a champion here, and it has been 
a pleasure to try and work with her on those issues.
    I want to congratulate Mayor Williams for his incredible 
service.
    And it is great to see you and all the Members of the 
Council.
    To you, Mr. Fenty, congratulations on your recent victory.
    And let me just close with this. I want to congratulate 
Congressman Tom Davis from Virginia. I also have the privilege 
of serving on the Government Reform Committee that he chairs. 
And he has really spent a lot of time and effort to craft this 
compromise.
    My view is that we should have voting rights for the 
District of Columbia as a matter of principle. And there have 
been legislations to do it. I mean, as a matter of principle, 
the residents of this great city should have voting rights. But 
I understand the art of the possible. And I want to 
congratulate Congressman Davis for taking the lead on this 
issue and crafting this piece of legislation.
    And I would only say, to all of us on this Committee and 
the Judiciary Committee, this is a piece of legislation that 
has been much debated in this Congress. It has been much 
considered in the Government Reform Committee. It is a very 
delicate balance and compromise, and I would urge my colleagues 
to not tamper with what I think is a very well put-together 
proposal that stands on its own.
    I know we are going to hear testimony on various issues 
today, but I would just stress the fact that Mr. Davis has 
worked for many years for us to get to this point, and I hope 
we don't blow it.
    Thank you, Mr. Chairman.
    Mr. Chabot. Thank you. The gentleman yields back.
    Without objection, all Members will have 5 legislative days 
to submit additional materials for the hearing record.
    Mr. Chabot. And I would like to now introduce formally our 
distinguished panel here this afternoon.
    Our first witness is Governor Jon M. Huntsman, Jr., of the 
State of Utah.
    Mr. Cannon, was there anything else you wanted to say prior 
to me introducing the governor here?
    Mr. Cannon. Let me just reiterate what a great governor 
Utah has.
    Mr. Chabot. Okay, thank you, excellent.
    Governor Huntsman was elected to his position in 2004, 
where he represents the 2.5 million residents of Utah that 
would enjoy a new Representative under H.R. 5388.
    As Governor Huntsman will testify, the issue of obtaining 
an additional Representative has been extremely important to 
his State, to the point that they litigated the issue all the 
way up to the United States Supreme Court.
    We welcome you here this afternoon, Governor.
    Our second witness is Dr. John C. Fortier, who is a 
research fellow at the American Enterprise Institute, where he 
focuses his studies on American Government. Dr. Fortier 
received his bachelor's degree from Georgetown University and 
earned his doctorate from Boston College.
    We welcome you here this afternoon, Doctor.
    Our third witness is Adam Charnes, who is a partner at the 
law firm of Kilpatrick Stockton, LLP, in Winston-Salem, North 
Carolina. Prior to that, Mr. Charnes served as Deputy Assistant 
Attorney General in the office of legal policy at the 
Department of Justice. He received his bachelor's degree from 
Princeton University and his law degree from Harvard Law 
School.
    We welcome you this afternoon, Mr. Charnes.
    Our fourth and final witness is Professor Jonathan Turley, 
of the George Washington University Law School. Professor 
Turley is a nationally recognized legal commentator and 
constitutional scholar. He is a graduate of the University of 
Chicago and Northwestern University School of Law.
    And we welcome you here this afternoon, Dr. Turley.
    Before we get started with our testimony this afternoon, I 
just want to reiterate the rules that we have in the Committee. 
Most of you are probably familiar with the 5-minute rule.
    We have a lighting system on there. Each of you will be 
given 5 minutes. We would ask you to stay within that time. The 
green light will be on for 4 minutes. A yellow light will come 
on to let you know you have a minute to wrap up. And the red 
light will come on, and we would ask you to please try to 
complete your testimony by that time or very close to the light 
coming on.
    They are kind of small, so it is a little hard to see them. 
We used to have big lights. That was old technology. It was 
real easy to see. And now we have got these modern, small 
lights that you can't see. What the reasoning for that was is 
beyond me.
    But those are basically the rules within which we would ask 
you to follow.
    It is also the practice of this Committee to swear in all 
witnesses appearing before us. So if you would, if you would 
all four please stand and raise your right hand.
    [Witnesses sworn.]
    Mr. Chabot. All witnesses have indicated in the 
affirmative.
    We, again, thank you for your attendance and your testimony 
here this afternoon.
    Governor, we will begin with you. And you will need to 
probably pull the mike a little closer and turn it on there. 
Thank you.

 TESTIMONY OF THE HONORABLE JON M. HUNTSMAN, JR., GOVERNOR OF 
                              UTAH

    Governor Huntsman. Thank you, Mr. Chairman and 
distinguished Members of this Committee. It is an honor and 
privilege to be with you, along with Ms. Dorothy Hite, who I am 
honored to be with, as well, and want to thank her for her 
commitment to equality and civil rights during her career.
    I will confine my testimony to a brief discussion of why I 
believe this legislation will not only benefit the State of 
Utah, but will simultaneously promote democratic values 
inherent in our constitutional system.
    As I understand, H.R. 5388 takes a unique approach to a 
problem that has remained unresolved for most of our nation's 
history. If enacted, this legislation would increase the size 
of the House by two votes, giving one to the District, the 
other to Utah, the State that should have received an 
additional seat in the wake of the 2000 census.
    When I say that Utah should have received the additional 
seat following the 2000 census, I am referring to two separate 
errors committed by the Census Bureau in 2000, each of which 
improperly deprived our State of a fourth seat.
    The first such error involved the bureau's use of a 
statistical procedure known as hot deck imputation, which I 
believe violated the spirit, if not the letter, of the Census 
Act.
    The second error involved the bureau's decision to count 
Federal employees residing temporarily overseas, while 
arbitrarily refusing to count other similarly situated 
Americans living outside the United States.
    Although this bill does not address either of those errors 
directly, it addresses both of them indirectly by awarding Utah 
the seat that it should have received in 2002. The loss of that 
seat has cost Utah in many ways over the last 6 years.
    In spite of the fact that we are large enough to merit a 
fourth Member of Congress, the State has been spread thin, with 
only three Members to represent the State's ever-growing 
population. That extra Member would have been able to serve on 
other House Committees and begin the process of gaining 
seniority and influence within the House.
    Following 2000, the Census Bureau certified our State's 
apportionment population to be roughly 2.2 million, which today 
has grown well beyond 2.5 million. Obviously, the citizens of 
the State would be better served if each Member only had to 
serve 559,000, as opposed to 850,000.
    Last December, the Census Bureau reported that Utah was the 
fifth fastest growing State in the union. The estimate stated 
that Utah grew by 2 percent from July of 2004 to July of 2005.
    This sort of continued growth represents a State with a 
very challenging matrix of problems. Schools, transportation 
infrastructure, social services, emergency services can become 
a stress on a very rapidly growing State. In each of these 
areas, having a fourth Member of Congress would greatly aid the 
State in delivering its message to the Federal Government here 
in Washington.
    Now, I welcome the fact that, if the legislation passes, 
Utah's new seat would be elected on an at-large basis until 
2012, when congressional redistricting would automatically take 
place based on population figures from the 2010 census.
    However, our objective, first and foremost, is to get a 
fourth district seat, even if that included early 
redistricting.
    In short, H.R. 5388 rights the wrongs that were committed 
in the 2000 census, benefits those who suffered most as a 
result of those wrongs, and does so in a way that makes sense.
    I also want to add this point. I have not extensively 
studied the constitutionality of the D.C. House Voting Rights 
Act, but I am impressed and persuaded by the scholarship 
represented in this legislation.
    The people of Utah have expressed outrage over the loss of 
one congressional seat for the last 6 years. I share their 
outrage. I can't imagine what it must be like for American 
citizens to have no representation at all for over 200 years.
    As a former trade negotiator, as an elected official, I 
recognize a finely balanced deal when I see one. Congress 
should try to address this problem in a fair and reasonable 
way. It is just the right thing to do.
    And in conclusion, let me thank all of you on both sides of 
the aisle who have worked so diligently to bring us to where we 
are today.
    Thank you, Mr. Chairman.
    [The prepared statement of Governor Huntsman follows:]
        Prepared Statement of the Honorable Jon M. Huntsman, Jr.
    Good afternoon Mr. Chairman and distinguished Committee members. 
Thank you for requesting that I testify today on H.R. 5388, the 
District of Columbia Fair and Equal Voting Rights Act of 2006. I will 
confine my testimony to a brief discussion of why I believe this 
legislation would not only benefit the State of Utah, but would 
simultaneously promote democratic values inherent in our constitutional 
system. As I understand it, H.R. 5388 takes a unique approach to a 
problem that has remained unresolved for most of our nation's history. 
If enacted, this legislation would increase the size of the House by 
two seats, giving one to D.C. and the other to Utah, the State that 
should have received an additional seat in the wake of the 2000 census.
    When I say that Utah ``should have received'' the additional seat 
following the 2000 census, I am referring to two separate errors 
committed by the Census Bureau in 2000, each of which improperly 
deprived our State of a fourth seat. The first such error involved the 
Bureau's use of a statistical procedure known as ``hot-deck 
imputation,'' which I believe violated the spirit, if not the letter, 
of the Census Act. See 13 U.S.C. Sec. 195 (prohibiting ``the use of the 
statistical method known as `sampling' in carrying out the provisions 
of this title''); but see Utah v. Evans, 536 U.S. 452, 473 (2002) 
(holding that ``the statutory phrase `the statistical method known as 
sampling' does not cover the [Census] Bureau's use of imputation''); 
see also id. at 480 (O'Connor, J., dissenting) (``I would find that the 
Bureau's use of imputation constituted a form of sampling and thus was 
prohibited by Sec. 195 of the Census Act.''). The second error involved 
the Bureau's decision to count federal employees residing temporarily 
overseas, while arbitrarily refusing to count other, similarly situated 
Americans living outside the United States.\1\
---------------------------------------------------------------------------
    \1\ Had the Bureau treated all temporary expatriates alike by 
simply (a) not limiting its overseas enumeration to federal employees, 
or (b) excluding all non-U.S. residents from the census, Utah would 
have had a fourth seat beginning in 2002.
---------------------------------------------------------------------------
    Although this bill does not address either of those errors 
directly, it addresses both of them indirectly by awarding Utah the 
seat that it should have received in 2002.
    I welcome the fact that, if the legislation passes, Utah's new seat 
would be elected on an at-large basis (rather than from a specific 
district) until 2012, when congressional redistricting will 
automatically take place based on population figures from the 2010 
census. I consider that a significant benefit because redistricting--
which is always a difficult, time-consuming, and politically costly 
process--would be especially undesirable at this point in time, less 
than four years before the next decennial census.
    In short, H.R. 5388 rights the wrongs that were committed in the 
2000 census, benefits those who suffered most as a result of those 
wrongs, and does so in a way that makes sense.
    Thank you for this opportunity to testify. The State of Utah and 
its 2.5 million residents deserve and welcome the chance to have an 
additional seat in the House of Representatives.

    Mr. Chabot. Thank you very much, Governor.
    Dr. Fortier, you are recognized for 5 minutes.

TESTIMONY OF JOHN FORTIER, RESEARCH FELLOW, AMERICAN ENTERPRISE 
                           INSTITUTE

    Mr. Fortier. Thank you, Chairman Chabot and Ranking Member 
Nadler and Members of the House Judiciary Subcommittee, for 
inviting me to testify on a very important issue of 
representation in Congress for the District of Columbia.
    In particular, we are discussing the District of Columbia 
Fair and Equal House Voting Rights Act of 2006, which has been 
ably described by several Members of the Committee.
    I wrote a column in The Hill newspaper, my weekly column, 
on this bill back in the spring, and I called it ``Much Needed, 
Ingenious, and Blatantly Unconstitutional.'' While I meant that 
to be provocative, I stand by all three of those statements.
    I think, first of all, the bill is much needed. 
Representation for the District is much needed. It is a great 
injustice that over half a million citizens living in the 
shadow of the Capitol are not represented by full voting 
Representatives and by Senators. So the aim of the bill is just 
right.
    Second, the bill is ingenious or it is politically savvy, 
in a way that has been described up here. We have political 
concerns of Republicans and Democrats which have been finely 
balanced.
    And on this score, I don't believe that Congress has 
overstepped its bounds by expanding the House or by creating 
the at-large district. I would agree with the remarks of 
Governor Huntsman.
    But at the end of the day, I do not believe that this 
approach is constitutional. And this, unfortunately, means that 
we are left with several ways to give representation to the 
District, but all of them are very difficult, difficult to 
achieve.
    Congress could admit the District as a State. Congress 
could, with the consent of Maryland and the District, retrocede 
the District to Maryland, as was done in Virginia in the 19th 
century, or we could amend the Constitution. Difficult options, 
all of them, but I believe the only three alternatives to get 
to a just end.
    So why do I believe that H.R. 5388 is unconstitutional? For 
one simple reason: Congress does not get to decide what bodies 
are represented in the House and the Senate. It is the 
Constitution that decides that, and the Constitution has 
decided that.
    Over and over in the Constitution, it is clear that only 
States may have Representatives in the House and the Senate. 
The textual references are many, but the first is the most 
obvious. The House of Representatives shall be composed of 
Members chosen every second year by the people of the several 
States.
    Each State is also guaranteed a Representative. The 
franchise in each State must be equal to that of the State's 
most popular part of their State legislature.
    And even in one instance, the Constitution prescribes that 
the House should vote by State. That is, in the case of the 
Electoral College, if there is no majority, a pick of the 
President of the Electoral College, it goes to the House, and 
the House votes by State and the quorum is determined by State.
    Again, no reference to other bodies being represented in 
Congress, no territories, no other entities. It is States that 
are represented and the people of the States in the 
Constitution.
    The proponents of the approach in the bill before us today 
rely heavily on the Seat of Government Clause, a clause that 
gives Congress great power of the District. But, in fact, this 
provision should best be understood as the power to govern the 
District, as a State would govern its own territory.
    What is being done to it is it is being stretched to 
override other constitutional provisions in the name of the 
welfare of the District, and here is where I think the 
interpretation of that clause goes wrong.
    If we were to accept this power, which is broad, but accept 
it, as the proponents would argue, Congress could give 
representation to the Senate by simple legislation. They could 
have granted voting in the presidential election, as was done 
in the 23rd amendment, by simple legislation and not by 
constitutional amendment.
    It would not be bound at all by proportionality. It could 
grant the District two Representatives or 10 or 436 
Representatives. And if you doubt that power, you look at the 
bill itself. As part of the delicate compromise, the bill 
limits the District to one Representative, no matter what 
population has. If the District grows substantially, it still 
only gets one Representative in the bill before us.
    And then if Congress can create the Representative, it can 
also take that Representative away by legislation. Imagine 
having a Representative for the District of Columbia and a 
tough votes comes by and then Congress decides to punish the 
District and the Representative by withdrawing that seat, 
again, by simple legislation.
    For all these reasons, I think the more legitimate methods, 
the more difficult methods are the way to go in giving 
representation to the District in Congress.
    Finally, I will add that the Territories Clause would be 
analogous to the Seat of Government Clause that we rely on 
here. If Congress may do so for the District, they may do so 
also for the territories, and the territories vary widely in 
size. We could give a Representative to small islands with a 
population of a couple hundred people or larger territories 
with certainly much less than a traditional congressional 
district.
    So the unfortunate conclusion of my testimony is that, 
while the aim of the legislation is just, we have other courses 
of action that we are going to have to take because they are 
legitimate constitutional options.
    Thank you, Mr. Chairman.
    [The prepared statement of Dr. Fortier follows:]
                   Prepared Statement of John Fortier
    Thank you Mr. Chairman, Mr. Ranking Member, and members of the 
subcommittee for inviting me to testify on the important subject of 
voting rights for residents of the District of Columbia.
    The purpose of this hearing is to explore H.R. 5388 the ``District 
of Columbia Fair and Equal House Voting Rights Act of 2006'' which 
creates a House seat for the District of Columbia.
    H.R. 5388 would increase the size of the House to 437 members. It 
treats the District of Columbia as a district that will be represented 
in the House. It also calls for a second new district to be located in 
Utah, as Utah narrowly missed out on a seat in the last re-
apportionment. That Utah district would be an at-large district, and 
the three current Utah districts would remain intact. After the next 
reapportionment, the District of Columbia would still be considered a 
district with a representative, and the remaining 436 seats would be 
apportioned among the states based on the current method of 
apportionment.
    I wrote my weekly column in the Hill on this bill last spring, 
which I described somewhat facetiously as ``much-needed, ingenious, and 
blatantly unconstitutional.'' \1\ I say somewhat facetiously because 
even though the sentence had a provocative tone, I believe all three of 
these descriptions of H.R. 5388 are true. First, a proposal to grant 
the citizens of the District the right to vote for congressional 
representatives is much needed. It is an injustice that for over two 
hundred years District residents have not had congressional 
representation. Second, H.R. 5388 is ingenious in the way it balances 
the partisan concerns of Republicans and Democrats that arise over such 
an issue. Third, as much as I agree with the aim of the legislation and 
admire the political savvy of its authors, H.R. 5388 is not the answer 
to the District's problems. The central premise that Congress can by 
simple legislation create a representative for the District is wrong. 
The Constitution, not Congress, has determined that the House and 
Senate will be made up of representatives of states and states alone. 
Congress can no more change the Constitution on this matter by simple 
legislation than it could repeal the first amendment or allow sixteen 
year olds to serve as president.`
---------------------------------------------------------------------------
    \1\ John C. Fortier, ``DC Colony,'' The Hill, May 17, 2006.
---------------------------------------------------------------------------
    The unfortunate conclusion of my remarks is that because H.R. 5388 
is not constitutional, the road to representation for DC residents is 
difficult. There are three legitimate ways to accomplish this end: (1) 
to admit the District as a state into the United States; (2) to 
``retrocede'' the District to Maryland; (3) to amend the constitution 
to allow DC to retain its current status but also grant it 
representation in Congress. All are legitimate means to a just end, but 
all would face significant political opposition.
       it is an injustice that dc residents are not represented 
                        in the house and senate
    The District of Columbia has over 500,000 residents. Only in the 
past forty years have they been entitled to vote in presidential 
elections. They have no full voting representatives in either the House 
or the Senate.
    While residents of U.S. territories also have no voting 
representation in Congress, the case of the District is even more 
compelling. The seat of government has been here since 1800, but DC has 
all the while been unrepresented in Congress and has watched as many 
territories have become states and now enjoy representation in 
Congress. The District is integrally connected to the U.S., not 
separated by ocean or language from the fifty states.
    One should not quarrel with the message on the District's license 
plate, ``taxation without representation.'' The message is essentially 
correct.
 the ingenuity and political savvy of the davis/norton proposal (h.r. 
                                 5388)
    The Davis/Norton proposal tries to address the partisan political 
concerns of Democrats and Republicans over the issue of DC 
representation. In all likelihood, the District would elect a 
Democratic representative. To balance this, the proposal adds an 
additional representative to Utah, which barely missed out on a fourth 
representative last re-apportionment. At least until the next 
apportionment, one of the two new seats created would likely be 
represented by a Republican and one by a Democrat. The bill also 
provides that the new Utah representative would be elected at-large and 
that the existing districts in Utah will remain the same until the next 
apportionment and redistricting. This was again done to delicately 
balance political concerns, as Utah Democrats worried that a new 
redistricting might adversely affect the district lines of Utah's sole 
Democratic Representative.
    While this arrangement is unusual, I see no constitutional 
objection to it. Congress may increase the size of the House to 437 by 
simple legislation. The at-large district is temporary. And it is well 
within Congress's power to regulate the time, place and manner of 
elections and therefore to prescribe such an at large district. 
Congress has previously weighed in legislatively to require that states 
employ single member districts, but it is within Congress's power to 
alter that judgment overall by allowing or even requiring at large 
districts. It may also carve out a specific exception to its general 
rule requiring states to create single member districts as H.R. 5388 
proposes to do.
    Overall, the provisions of H.R. 5388 that increase the size of the 
House and the creation of an at-large district are well thought out and 
constitutionally unobjectionable.
                   why h.r. 5388 is unconstitutional
    The Constitution clearly indicates that Congress shall be composed 
of representatives from states and states alone. Congress itself does 
not determine the makeup of Congress, it is the Constitution that makes 
that determination. Of course, Congress would play an important role in 
the admission of states, in the retrocession of the District to the 
state of Maryland, and in the constitutional amendment process. But 
through the normal legislative process, Congress cannot get around the 
Constitution's clear language that both the House and the Senate are 
composed of representatives from states and states alone.
    The textual evidence in the Constitution that the people of states 
are to be represented in the House and Senate is extensive:

        ``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.''

        ``No person shall be a Representative who shall not have 
        attained to the age of twenty five years, and been seven years 
        a citizen of the United States, and who shall not, when 
        elected, be an inhabitant of that state in which he shall be 
        chosen.''

        ``each state shall have at least one Representative"

        ``When vacancies happen in the Representation from any state, 
        the executive authority thereof shall issue writs of election 
        to fill such vacancies.'' [Article I, Sec.2, (my emphasis)]

    There are many similar references to states in Article I, section 3 
of the original Constitution which describes how state legislatures 
were to choose senators. The seventeenth amendment which was ratified 
in the early twentieth century and which provided for a popular vote 
for senators also indicates that it is the people in the states who are 
to be represented in the Senate:

        ``The Senate of the United States shall be composed of two 
        Senators from each state, elected by the people thereof, for 
        six years; and each Senator shall have one vote. The electors 
        in each state shall have the qualifications requisite for 
        electors of the most numerous branch of the state 
        legislatures.''

        ``When vacancies happen in the representation of any state in 
        the Senate, the executive authority of such state shall issue 
        writs of election to fill such vacancies: Provided, that the 
        legislature of any state may empower the executive thereof to 
        make temporary appointments until the people fill the vacancies 
        by election as the legislature may direct.'' [Amendment XVII 
        (my emphasis)]

    The Constitution also provides that states will have the power to 
regulate elections, although Congress may alter those regulations:

        ``The times, places and manner of holding elections for 
        Senators and Representatives, shall be prescribed in each state 
        by the legislature thereof.'' [Article I, section 4 (my 
        emphasis)]

    Finally, the Constitution prescribes an instance when the votes in 
Congress will be counted by state delegation rather than by individual 
members. If no presidential candidate receives a majority of the votes 
of the presidential electors, the House is called upon to choose the 
president from among the top three candidates. Under these 
circumstances, a quorum shall be representatives from two thirds of the 
states, not of the members themselves. And the vote to select a 
president shall require a majority of state delegations:

        ``if no person have such majority, then from the persons having 
        the highest numbers not exceeding three on the list of those 
        voted for as President, the House of Representatives shall 
        choose immediately, by ballot, the President. But in choosing 
        the President, the votes shall be taken by states, the 
        representation from each state having one vote; a quorum for 
        this purpose shall consist of a member or members from two-
        thirds of the states, and a majority of all the states shall be 
        necessary to a choice.'' [Amendment XII (my emphasis)]

    The textual evidence that Members of the House and Senators shall 
be representatives of people in states is overwhelming. It is not 
described by a throwaway or ambiguous line in the Constitution, but 
pervades the whole text. The framers of the original Constitution and 
of later amendments were crystal clear that representation in Congress 
was for people in states. They knew of the case of territories (The 
Northwest Territory was in existence prior to the ratification of the 
Constitution) and made provisions for Congress to administer them. They 
included constitutional provisions for the creation and governance of a 
district for the seat of government, but they never provided for 
representation in Congress for territories or the seat of government.
  selected history of attempts to give representation to the district
    Numerous efforts have been made to give representation to the 
District of Columbia.
    In two prominent cases, proponents of these efforts sought to amend 
the constitution, but did not pursue a simple legislative strategy that 
is urged by H.R. 5388.
    The enactment of the 23rd amendment gave District residents the 
right to participate in presidential election. Using the logic that is 
behind H.R. 5388, Congress could have achieved the same result by 
legislation, using the Seat of Government Clause as a justification for 
passing a simple piece of legislation to grant DC residents the vote in 
presidential elections. If such an option were legitimate, why would 
the proponents of the 23rd amendment have spent the significant time 
and energy needed to secure \2/3\ votes in both houses of Congress and 
spent nearly a year seeking ratification in three quarters of the 
states?
    Similarly, a major effort to grant DC residents the right to vote 
in congressional elections was proposed in the form of a constitutional 
amendment that passed both houses of Congress in 1978. Proponents of 
this measure then pursued the matter in state legislatures but failed 
to secure ratification in three quarters of the states. After seven 
years had elapsed, as the amendment prescribed, the ratification 
failed. Again, why would the proponents of representation for DC have 
used such a long, arduous, and ultimately unsuccessful process if the 
whole matter could be resolved by simple legislation?
    In addition to these two efforts to amend the Constitution to give 
representation to the District, consider also the attempt in the 103rd 
Congress to give delegates from the District and territories the right 
to vote in committee and in the committee of the whole. The House 
changed its rules to this effect. Why would the proponents of 
representation for DC and the territories have sought only these 
changes? Why would they have not proposed full voting privileges for 
delegates, making them essentially equal in status to representatives 
from states?
    The answer is given in part by Michel v. Anderson.\2\ When some 
members of Congress sued claiming these rules changes went too far, the 
DC Circuit Court affirmed the change in rules, but noted that it passed 
constitutional muster because it did not give the essential qualities 
of representatives to delegates. In a nutshell, it was acceptable to 
allow delegates to participate in all the deliberations and secondary 
votes in committees including the committee of the whole as long as 
their votes would not be decisive on votes on the final passage of 
bills.
---------------------------------------------------------------------------
    \2\ 41 F.3d 623 No. 93-5109
---------------------------------------------------------------------------
    In short, proponents of representation for DC have worked long and 
hard to pass constitutional amendments or have settled for less than 
full privileges for delegates because they did not believe that a 
simple legislative solution was legitimate.
                     the seat of government clause
    The proponents of granting the District representation by simple 
legislation rest much of their case on the clause in Article I that 
grants Congress the power to control the affairs of the District.

        ``Congress shall have the 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.'' [Article I, sec. 8]

    Clearly, the power granted to Congress over the District is broad 
in scope. But this power is best understood as the power to govern the 
affairs of the District as a state government would govern over its 
territory. Congress has even somewhat greater power over the District 
than a state government has over its territory, as it is not subject to 
some of the restrictions the Constitution places on states. For 
example, Congress could coin money for the District, if it deemed that 
course of action wise, as the Constitution prevents states from coining 
money, but does not impose a similar restriction on the governance of 
the District.
    But what cannot be done under the Seat of Government clause is to 
grant the District powers that override other constitutional language. 
The Seat of Government Clause cannot be an excuse to use simple 
legislation to amend the constitution through the back door.
    This is, however, what proponents of the Davis/Norton approach 
propose to do. They describe the Seat of Government Clause as 
``majestic in scope.'' \3\ It is described in such grandiose terms that 
Congress might use the Seat of Government Clause for any end as long as 
it relates o the welfare of the District's residents.
---------------------------------------------------------------------------
    \3\ Testimony of the Hon. Kenneth W. Starr before the House 
Government Reform Committee, 2154 Rayburn House Office Building, 
Washington, D.C., June 23, 2004, p. 4. See also Viet Dinh and Adam 
Charnes, ``The Authority of Congress to Enact Legislation to Provide 
the District of Columbia with Voting Representation in the House of 
Representatives.'' November 2004 found at http://www.dcvote.org/pdfs/
congress/vietdinh112004.pdf
---------------------------------------------------------------------------
    If this power is as broad as proponents suggest, then Congress 
could have granted District residents the right to participate in the 
election of a president by simple legislation rather than through the 
23rd amendment. Under this broad interpretation Congress could give the 
District representation in the Senate.
    Again under this interpretation of the Seat of Government Clause, 
there is no reason why Congress would be limited to providing 
representation to the District that is proportional to its population. 
While states would be subject to apportionment for their 
representatives, Congress could give the District two representatives, 
or ten, or four hundred thirty six. In fact, the H.R. 5388 deviates 
from proportionality by mandating that the District will never have 
more than one representative in the House no matter how large its 
population grows.
    Similarly, there is no reason why such a broad power would be 
limited by constitutional provisions that give two senators to each 
state; Congress might grant the District as many senators as it saw 
fit. Congress might eliminate age or citizenship requirements for 
District representatives.
    Under such a broad interpretation almost every constitutional 
provision would fall if Congress were to act in its capacity to govern 
the affairs of the District.
    In addition to the constitutional problems arising under such a 
broad interpretation of the Seat of Government Clause, consider a 
practical one. Since Congress has created the District of Columbia's 
seat in the House, it could take it away by legislation. Suppose the 
majority party wanted to punish the District or the particular 
representative of the District, Congress could pass a law abolishing 
the office. Congress does not have the power to take away all 
representation from any state, as the Constitution guarantees each 
state at least one representative. But the District's seat would rest 
on the whim of the legislature.
                    treating the district as a state
    The fallback position for those advocating the use of the Seat of 
Government Clause as a basis for giving representation to the District 
is that Congress has the power to treat District as a state, as it has 
done in certain pieces of legislation and as courts have held in 
certain instances, and therefore it may convey upon the District all of 
the attributes of statehood, including right to be represented in 
Congress.
    But if the Seat of Government clause is broad enough to allow 
Congress to ignore the many clear textual references that only the 
people in states are represented in Congress then why would this clause 
be limited to treating the District as a state and then abiding by 
other constitutional language?
    It is true that in certain contexts Congress and the Courts have 
treated the District as a state. But variety of circumstances in these 
cases does not point to a general rule that Congress may treat the 
District of Columbia as a state. The central case of National Mutual 
Insurance Company of the District of Columbia v. Tidewater Transfer 
Company \4\ illustrates the divisions on this issue rather than the 
ensus. The case was decided 5-4 and the opinion upheld a law that 
allowed District residents access to federal courts in diversity suits. 
However, only two justices held the view that the District should be 
treated as a state. Three justices in the majority upheld the law, but 
explicitly refused to consider the District as a state. They instead 
relied on the Seat of Government Clause, but did not argue that the 
clause treated the District as a state.
---------------------------------------------------------------------------
    \4\ 337 U.S. 582 (1949).
---------------------------------------------------------------------------
                        territorial jurisdiction
    As the Seat of Government Clause pertains to Congress's power over 
the District of Columbia, so the Territorial Clause pertains to 
Congress's similar powers over territories:

        ``The Congress shall have power to dispose of and make all 
        needful rules and regulations respecting the territory or other 
        property belonging to the United States.'' [Article IV, sec. 3]

    The language of the Territorial Clause is different than that of 
the Seat of Government Clause, but it is no less ``majestic'' in its 
scope. The logical way to interpret this clause is to read it as 
Congress having the power to govern the territory as a state government 
governs its own territory. Even though the language is not identical, 
in practical effect, Congress under the Territorial Clause should have 
the same role in governing the territories as it does in governing the 
District under the Seat of Government Clause.
    But if the Seat of Government Cause is to be read so broadly as to 
allow Congress to provide representation for the District in Congress, 
then surely Congress could provide the same representation for the 
territories under a similarly broad reading of the Territories Cause. 
This power would not only apply to organized territories or territories 
that currently have delegates in Congress, but would apply to all 
territories. And the territories vary widely in population. Puerto Rico 
has nearly 4 million people and would qualify for five or six 
representatives in the House if it were a state, but most of the 
territories are significantly smaller. The population of the Northern 
Mariana Islands, for example, is approximately 80,000. Wake Island is 
inhabited by approximately 200 civilian contractors. Does Congress have 
the power to grant these territories representation in Congress by a 
simple act of legislation under the guise of governing the territories?
                               conclusion
    The residents of the District of Columbia deserve congressional 
representation. Unfortunately, the legitimate means for granting that 
representation are very difficult to pursue. There does not seem to be 
strong political sentiment in favor of statehood for the District, 
retrocession of the District to Maryland or a constitutional amendment 
granting DC congressional representation. Nevertheless, they are the 
only legitimate alternatives to get congressional representation for 
District residents.
    The ``District of Columbia Fair and Equal House Voting Rights Act 
of 2006'' has its heart in the right place, but it will not pass 
constitutional muster. It too easily glosses over the numerous textual 
references in the Constitution that grant representation only to the 
people of states. And it builds on a foundation of a much too expansive 
view of the Seat of Government Clause which might have many adverse 
consequences if applied in different contexts.

    Mr. Chabot. Thank you very much, Doctor.
    Mr. Charnes, you are recognized for 5 minutes.

TESTIMONY OF ADAM H. CHARNES, ATTORNEY, KILPATRICK STOCKTON LLP

    Mr. Charnes. Thank you. Good afternoon, Mr. Chairman, 
Ranking Member Nadler and other Members of the Subcommittee. I 
appreciate very much the opportunity to discuss the 
constitutionality of H.R. 5388, the ``District of Columbia Fair 
and Equal House Voting Rights Act of 2006.''
    I believe that it is likely that the courts would hold the 
Congress indeed possesses the constitutional authority to enact 
legislation, providing that the District of Columbia be 
considered a congressional district for purposes of 
representation in the House of Representatives.
    The source of this authority is the Constitution's District 
Clause, which is article I, section 8, clause 17. The District 
Clause authorizes Congress to establish the District as the 
seat of Government, and it empowers Congress to ``exercise 
exclusive legislation in all cases whatsoever over such 
district.''
    The courts repeatedly have held that the District Clause 
gives Congress extraordinary and plenary power of the District. 
Indeed, as one court explained, Congress has ``full and 
unlimited jurisdiction to provide for the general welfare of 
citizens within the District of Columbia by any and every act 
of legislation which it may deem conducive to that end.''
    In short, Congress's authority under the District Clause is 
so expansive that it encompasses the power to provide D.C. 
residents with a Representative in the House.
    While downplaying the District Clause, those who take the 
position that this bill is unconstitutional principally rely on 
article I, section 2, clause 1 of the Constitution. As was just 
noted, that provision states that the Members of the House 
shall be ``chosen every second year by the people of the 
several states.''
    Critics of the bill claim that the use of the word 
``state'' in this provision means that only citizens in the 50 
States can be represented by a voting Member of the House.
    While this argument has superficial appeal, upon close 
inspection, I believe that it overlooks history, it overlooks 
prior judicial interpretations of the word ``states'' as used 
in other provisions of the Constitution, and it overlooks other 
legislation that prevents disenfranchisement from congressional 
representation of U.S. citizens.
    In my remaining time, I will briefly summarize the basis 
for these conclusions.
    First, as to history, in 1790, Congress accepted the 
cessions of land by Maryland and Virginia to create the 
District. Thus, as of 1790, residents within the District were 
no longer citizens of those States.
    Nonetheless, by statute, Congress provided that the laws of 
Maryland and Virginia would continue to apply. Thus, from 1790 
to 1800, residents within the District voted in congressional 
elections in Maryland and Virginia; not because they were 
citizens of those States, for they were not, but because 
Congress, acting under the District Clause, legislated that 
those States' laws would apply, pending further congressional 
legislation. It is that precedent which I think this bill 
relies on.
    Second, critics of the bill ignore numerous instances in 
which the courts have upheld laws that treat the District as if 
it were a State for purposes of the Constitution. The most 
prominent example is the Supreme Court's Tidewater case.
    The Constitution provides, of course, that Congress may 
grant Federal courts jurisdiction over lawsuits ``between 
citizens of different states.'' Despite this language, the 
Tidewater plurality held that the District Clause permitted 
Congress to expand the Federal courts' diversity of citizenship 
jurisdiction to include disputes between citizens of a State 
and citizens of D.C.
    Third and finally, H.R. 5388 is directly analogous to the 
Uniformed and Overseas Citizens Absentee Voting Act. Some U.S. 
citizens living abroad are not citizens of any State under 
State law and, therefore, would not be permitted to vote in 
Federal elections. In order to prevent the disenfranchisement 
of such overseas citizens, Congress authorized them to vote in 
Federal elections in the last State in which they lived.
    Thus, Congress has already taken the step of giving the 
vote for House Members to U.S. citizens who do not fall within 
a hyper-literal interpretation of the phrase ``people of the 
several states'' in article I, section 2, clause 1.
    Again, Mr. Chairman, thank you very much for the 
opportunity to share these views with the Committee, and I look 
forward to answering your questions.
    [The prepared statement of Mr. Charnes follows:]
                 Prepared Statement of Adam H. Charnes




















































    Mr. Chabot. Thank you very much.
    Professor Turley, you are recognized for 5 minutes.

    TESTIMONY OF JONATHAN TURLEY, J.B. & MAURICE C. SHAPIRO 
    PROFESSOR OF PUBLIC INTEREST LAW, THE GEORGE WASHINGTON 
                     UNIVERSITY LAW SCHOOL

    Mr. Turley. Thank you, Mr. Chairman, Ranking Member Nadler, 
Chairman Conyers, distinguished Members of the Committee. It is 
a great honor to come and testify before you today on such an 
important subject and to join such a distinguished panel.
    My whole life, I have gone to countless weddings, and I 
have always wondered whether anybody ever stood up at a 
wedding, when they invited anyone who would object to this 
marriage to come forward, and now I know.
    It is a very regrettable position to be in, because I have, 
as everyone, I believe, at this table has done, stated strong 
views that the current status of the District is nothing short 
of an outrage. It is a gross embarrassment to any democracy to 
have so many of our citizens without a vote in Congress.
    But this has long been a debate about means, not end. I 
have never met anyone who is comfortable with the status of the 
District. And I have concluded that H.R. 5388 is the wrong 
means. I believe that it is fundamentally flawed on a 
constitutional level.
    As hard as I have tried to come to an opposing position and 
to stay quiet as this marriage occurs, I have to respectfully 
but strongly disagree with the analysis put forward by 
Professor Dinh, Adam Charnes and Ken Starr.
    I also believe that the second part of this legislation 
involving the at-large district for Utah also raises some very 
difficult questions, legally. I am going to focus on the issue 
of the D.C. district in my oral testimony, but I have laid out 
both these positions in detail in my written testimony.
    The current position of the District is something of an 
historical anomaly, and with the passage of time, the original 
purposes of the District have receded. As you know, in 1783, 
the Congress was interrupted in its meeting in Philadelphia, as 
the chairman ably described.
    People like James Madison wanted to create a situation 
where Congress would no longer be ``interrupted with 
impunity,'' as he said. This was, indeed, one of the guiding 
purposes of the creation of the Federal enclave. It was not the 
only purpose.
    There was considerable debate about the Federal enclave and 
various reasons held forth for creating a non-State entity. To 
me, that legislative history is perfectly clear. The intention 
of the Framers was to create a non-State entity, and the non-
voting status was part of that intent.
    So while the purposes have receded, in terms of why we went 
in this direction originally, the intent to create a non-State 
entity is quite clear. Moreover, I do not believe that simply 
because we have the symbolic purpose left--that is, the desire 
to have neutral ground for the seat of the Government--that it 
should be dismissed.
    I actually think that is an important reason and that the 
seat of Government should remain on neutral ground, should 
remain on a non-State entity. And, for that reason, I have 
advocated for what I have called a modified retrocession plan, 
where the District would be shrunk to a very small size, to the 
seat of Government, and the remainder receded to Maryland.
    I won't go through the textual analysis, which is laid out 
in my testimony, but I do believe that article I is clear when 
it refers to people of the several States. I think it is clear 
on its face, and I think it is clear from the legislative 
history.
    I have gone through that history in my testimony to show 
that the non-voting status of the District was discussed 
regularly by the framers. It was viewed back then as an 
abomination.
    This is not a new thing. When it was first proposed, there 
were objections that a non-voting populous was an affront 
toward democratic traditions, and there were proposals back 
then to avoid that status which were rejected.
    Alexander Hamilton noted that eventually this District 
would grow to a size when we would have to inevitably give it a 
seat in Congress. He made a proposal to allow that to happen. 
That was also rejected.
    So you have text and you have legislative history, in my 
view, that is quite clear as to the intention behind these 
constitutional provisions.
    I also believe, however, that this is the wrong way to go. 
I have laid out various policy implications that I submit to 
you, but I will simply note that what Congress giveth Congress 
can taketh away.
    You are about to take one, frankly, grotesque curiosity of 
the District's current status and replace it with another. You 
are going to create some type of half-formed citizen that can 
vote in the House for a non-State entity. I think it is a 
mistake.
    It will also be the only district that does not grow with 
the size of its populace. It also puts you on a very slippery 
slope in terms of what can happen in the future. It is not that 
I do not trust all of the Members in this room, but we all know 
that mischievous times lead to mischievous acts, and a future 
Congress may not be as restrained as you are.
    Once you cross this Rubicon, you will lay open, in my view, 
what was a very stable aspect of the Constitution and give it a 
fluid and, frankly, dangerous meaning.
    Unfortunately, my time has expired, and so I thank you 
again for allowing me to appear to today.
    [The prepared statement of Mr. Turley follows:]
                 Prepared Statement of Jonathan Turley




















































    Mr. Chabot. Thank you very much, Professor.
    We will now move to the questioning portion by the panel up 
here, and the Chair will yield himself 5 minutes for that 
purpose.
    And I will begin with you, Professor, if I can. Would you 
please elaborate on the alternative proposal for representation 
for D.C. that you have referred to and why you feel that it 
would be superior to H.R. 5388?
    Mr. Turley. Well, thank you, sir.
    There has always been a statement from the original act of 
ceding the land from framers and from courts that the District 
had two options available to it, Statehood or retrocession, and 
that appears regularly in history behind these provisions.
    In my view, retrocession is the most obvious way of dealing 
with this, and I also do not believe that it is such a horrible 
option. What I have suggested in the proposal I have laid out 
in the testimony is to restrict the District to the actual seat 
of Government, extending from Capitol Hill down to the Lincoln 
Memorial. The remainder would be retroceded to Maryland.
    But I have suggested a three-phase process in which the 
political retrocession would occur immediately, so that the 
District would immediately be able to vote with Maryland.
    You would then establish a commission, probably a three-
person commission, much like the one that assisted George 
Washington, for the next two stages.
    The second phase would be to incorporate those aspects of 
law enforcement and public services that are necessary into 
Maryland. And the third stage would be the incorporation of any 
tax and revenue issues.
    When we have looked at this in my office, it does not seem 
insurmountable. And, indeed, Maryland could grant the District 
special status. It has that authority. It can grant the 
District special tax status.
    So the District can remain unique. But there remains this 
conceptual problem with replacing that D.C. with an MD, and 
that is, frankly, what we are dealing with here.
    But I don't believe that symbolic barrier is enough to take 
this more risky course, because I believe if you take this 
course, it will be challenged and the District will not be able 
to gain from reform. It will be frozen in political amber until 
this is resolved, and I believe it could very well be struck 
down.
    Mr. Chabot. Thank you very much, Professor.
    Dr. Fortier, I would like to turn to you, if I can. In your 
written testimony, you set forth a number of alternative 
proposals for achieving representation, also, for the District 
of Columbia. If you were a Member of Congress, which of the 
proposals set forth would you champion, and why?
    Mr. Fortier. Well, the three proposals are to adopt the 
District as a State, to have some sort of retrocession, like 
Professor Turley mentioned, or to amend the Constitution. They 
all have variations in how you would do it. So I guess there 
are pluses and minuses.
    I do think the retrocession has the advantage of 
politically balancing the concerns that would come up better 
than the others in that the State of Maryland would still have 
two Senators, it would not change the balance in the Senate, 
and it would also, I suppose, not so quickly change the balance 
in the House, with a district that would have to be part of the 
District and part of Maryland.
    I think all of these are possibilities. They are all 
difficult. They are difficult to achieve. A constitutional 
amendment would be the cleanest one. The constitutional 
amendment would eliminate many of the problems with the other 
areas.
    I think Professor Turley, I am not sure how he would deal 
with this, but one of the difficulties with retrocession is 
what is left of the District, this small part of the District. 
We have the 23rd Amendment; the 23rd Amendment gives the 
District the right to vote in presidential elections. Some 
scholars have suggested that the President of the United States 
and the First Lady would be the two voters in that district and 
then get three votes in the Electoral College.
    Mr. Turley. And the twins.
    Mr. Fortier. Those who lived at home, maybe the headmaster 
of the page dorms. You have a small number of people who live 
in the very small area.
    But I think these are technical questions that could be 
dealt with. I think we could not have a District. I think there 
are reasons for it, but I think that we could give up the idea 
of having the District.
    While I think it is symbolically beneficial to have the 
seat of Government or the small area that Professor Turley 
would recommend, I think it is not necessary to have that. If 
either the District became a State or if it were given back to 
Maryland, we could sort of abolish the smaller part.
    Mr. Chabot. Thank you. I have only got about 20 seconds 
left, so rather than ask another question, which wouldn't 
really have time to be answered, just let me explain what is 
going on, the bells and everything.
    We have a series of votes on the floor of the House now. 
There is going to be, we believe, three votes. The first one is 
a 15-minute vote, then two 5-minute votes after that. So it 
will be approximately a half-hour.
    Now, Mr. Nadler has indicated that he will, unfortunately, 
be unable to come back, but what he is going to do is yield his 
time to Ms. Eleanor Holmes Norton, so she will have that 5 
minutes in order to ask questions in his place.
    So we will, at this time, be in recess. We will be back in 
approximately a half-hour. And I would encourage all Members to 
come back immediately after the third vote, if it all possible.
    We are in recess.
    [Recess.]
    Mr. Chabot. The Committee will come back to order. Take a 
seat, please.
    I have been informed that Governor Huntsman and Professor 
Turley have to catch a 4:15 flight, both back to Utah. So I 
know your time is somewhat limited at this point.
    So I assume that all the witnesses would be agreeable to 
taking written questions, if all Members haven't had time to 
ask.
    All four witnesses have indicated in the affirmative.
    Mr. Scott, you are recognized for 5 minutes.
    Mr. Scott. Thank you. Thank you, Mr. Chairman.
    Mr. Chairman, I just have a couple of concerns. First of 
all, when you have the Capital without voting representation, 
that makes no more sense than Richmond, Virginia, not having 
representation in the Virginia General Assembly. So I would 
hope that we can fix this glitch as soon as possible. We have a 
number of concerns.
    And since the gentlelady from Washington, D.C., is here, I 
would like to yield her the balance of my time, so that she can 
begin questions.
    Mr. Chabot. The gentleman yields to the gentlelady from 
Washington, D.C. The gentlelady is recognized.
    Ms. Norton. The gentleman from Virginia is very kind.
    I do want the Governor, before he leaves--I understand Mr. 
Charnes has agreed to stay. I think it is important for us to 
be able to have an exchange on this constitutional questions.
    But I do want to ask the Governor a question. A central 
feature of assuring what has always been the case whenever 
Congress has considered adding seats, which is that there be no 
advantage to one party or another, in order to follow that 
pattern that has taken us through the Civil War, free States, 
slave States, a pattern that has always been here.
    Chairman Davis and I have spent four hard years to, in 
fact, achieve absolute and total parity. We were informed 
yesterday for the first time that there may be an amendment 
that would take the basis for that bipartisanship away, it is 
one of the bases, but it was an important basis, by taking away 
the at-large seat. We, of course, have thoroughly vetted that.
    My question goes to your role as Governor. You have 
testified, without any prompting from us, we got this testimony 
just yesterday, where you testified that you understood that 
the seat would be on an at-large basis until 2012 and that you 
considered it--and here I am going to quote you, Governor--"a 
significant benefit, because redistricting, which is always a 
difficult, time-consuming and politically costly process, would 
be especially undesirable at this point in time, less than 4 
years before the next decennial census.''
    Could I ask you to tell us something about the 
redistricting process in Utah? If you could take us through 
what it would take. Understand, for the benefit of my 
colleagues on the panel, you go back after these 4 years to 
four seats, if you got the fourth seat.
    Governor?
    Governor Huntsman. Thank you very much for the question.
    And I appreciate your earlier comments about this being 
truly a bipartisan undertaking. And I thought Representative 
Conyers described it quite well during his remarks, in terms of 
the construct of the room in which we find ourselves today and 
the many people who are interested in seeing this happen, both 
for the District and for the State of Utah.
    As I mentioned in my testimony, the at-large status is 
something that would be my preference, but I must tell you that 
I am the chief executive of a State that is growing very, very 
quickly and experiencing enormous change. So, therefore, I am 
here to argue that which is in the best interest of the people 
of Utah, and that is getting an extra seat for people today who 
are underrepresented in this body.
    Ms. Norton. Just to intervene for a second. Neither Utah 
nor the District would get a seat if we do not have a 
bipartisan----
    Governor Huntsman. That is correct. Thank you for that, and 
I am glad that we are having this conversation, because we 
remind each other of that which one might forget.
    Just to get to your specific question, we have maps that 
are left over from the last decennial census of 2000, done, I 
think, 2001. I believe that there is one that even reflects a 
fourth district.
    And I think it would be important to look at that option, 
if, in fact, the requirement for getting a fourth district was 
that we had a district in place sooner rather than later, 
instead of waiting until 2010 for the decennial numbers and 
then 2012 for the election.
    Ms. Norton. And then redistricting would occur or not 
occur?
    Governor Huntsman. The redistricting might occur. And I am 
here not to speak for my legislature, but rather those things 
that I think are in the best interest of our State--that is, 
getting a fourth district and moving quickly and fairly and 
objectively toward the creation of a fourth seat, even if we 
had to do it soon. And that would be convening a commission on 
redistricting, like the one that met in 2001, to, once again, 
create a new district.
    So one of two things: We could look at the old district 
that was created in 2001 for the fourth seat that never 
occurred. Or we could fairly rapidly convene another meeting of 
this commission in short order and, based upon the principles 
of fairness and objectivity, create a new fourth district.
    That would be my hope. Again, I can't speak for the 
legislature, but I can give you my word that that is what I 
would hope for.
    Ms. Norton. When that fourth district was created, was it 
as it is in many States, agreement by Democrats and Republicans 
for the way in which the districts were allocated? Did the 
Democrats, in other words, support----
    Mr. Chabot. The time has expired, but the Governor can 
answer briefly the question.
    Governor Huntsman. It was a group made up of the 
legislature, representing the distribution politically of the 
Members.
    Ms. Norton. Did it have bipartisan support?
    Governor Huntsman. It was a bipartisan group that created 
the district.
    Ms. Norton. Was there a vote on it?
    Governor Huntsman. I believe that with the legislature 
being involved, that there was a vote, although I wasn't there 
at the time, so I can't speak definitively to that point.
    Mr. Chabot. The time has expired.
    The gentleman from Michigan, the Ranking Member, Mr. 
Conyers, is recognized.
    Mr. Conyers. Thank you, Mr. Chairman.
    Witnesses, I have never been so eager to come to a hearing 
and so disappointed to hear what at least half of you had to 
say about the subject matter. This has not been a good 
afternoon for me.
    Let me just ask Mr. Fortier. Am I correct that you have no 
objection to an at-large seat? You have no constitutional 
objection?
    Mr. Fortier. No, I have no constitutional objection. The 
Congress would mandate that all States have at-large seats, as 
they now mandate that they have single-Member districts and 
they can make exceptions to that. So it would also be a 
relatively temporary matter, so no objection.
    Mr. Conyers. Well, I feel just a little bit better, turning 
the dial.
    But, Mr. Charnes, what do you make of this afternoon? How 
do you make people like me, who walked in here in a totally 
positive mood, begin to say, ``Wait a minute, what is going on 
here?"
    Now, we know that there will be constitutional objections. 
We know that there will be lawsuits. We know all that. But how 
can we get this thing back on track and let's start moving down 
the road?
    Mr. Charnes. Well, I think that these are difficult 
constitutional questions, but the courts--in some areas of the 
structural Constitution, the Supreme Court is very formalistic. 
In other areas, the Court has approached things more flexibly.
    And I think with respect to interpretation of the word 
``state'' in various parts of the Constitution, as is laid out 
in my written testimony, the courts have been much more 
flexible. So I think that I am comfortable that there is a very 
good chance, and I think it is likely that the courts would 
uphold the treatment of the District as a district for the 
purposes of representation in the House of Representatives.
    And as you say, there is likely to be litigation, but there 
is litigation about a lot of things the Congress does. And that 
is sort of taking that in stride as part of the business of 
Congress. I don't see any undue risk here that should give the 
Subcommittee pause in moving forward.
    Mr. Conyers. Well, I don't think so either, but that is my 
complaint. I mean, for goodness' sakes, I guess we could have 
another hearing and pull together another set of witnesses.
    We have all practiced law or been lawyers or assumed to be 
constitutional experts. We have got to solve a historical, two-
century problem. And the Governor comes out here all the way, 
and we are sitting around saying, ``I am sorry, guys, I know 
you want to do the right thing, but it is just insuperable, it 
can't be done. It won't work.''
    Well, look, I am the most senior Member on this Committee, 
and I can tell you that we can find ways. That is our job, to 
find ways to make it work. That is what we are here for.
    And those of the people to whom I have to affix my 
attention at this moment in time, because I don't want this 
hearing to go down as one that they started off, everybody 
agreed what ought to happen, and then they realized that this 
can't happen, ``There is no way, Congressman. We love your 
intentions. We know your heart is in the right place, but.'' 
Well, I am one Member that cannot accept that. And I guess I am 
going to have to go back to my deep list of constitutional 
expertise and find ways to overcome it.
    Do you have any way of making me feel better, Governor, 
since you have come the furthest?
    Governor Huntsman. I will be very short and to the point, 
Representative Conyers, because there is a plane waiting. I 
want it to be understood that this Governor is leaving this 
hearing room with a desire for real flexibility in terms of how 
we proceed as a State, so that the District is successful.
    We have all heard the arguments why the District should be 
successful--I think most in this room agree--and so that Utah 
is successful, as well. I don't want it thought that we are 
going to be obstructionists. We are going to work with you and 
remain flexible in the days to come, so that we can get this 
done.
    And if it is any consolation, I just came in late last 
night, and I sense a real can-do attitude on the part of people 
who are in this room and beyond, along with the bipartisan 
group that has been put together in this Committee. And for me, 
Representative Conyers, that would give me a great sense of 
hope.
    Mr. Chabot. The gentleman's time has expired.
    Mr. Conyers. That is wonderful. And I am so glad that you 
were able to join the panel today, and we will be looking 
forward to continuing working with you.
    Mr. Chabot. Thank you. The gentleman's time has expired.
    The Chair would note that we are going to go into a second 
round, but we will--if Members would like to talk for longer in 
the first, we can do that. But I want to accommodate the 
sponsor of the bill, Mr. Davis, so he has a chance to ask some 
questions.
    So I am going to recognize myself, and I am yielding my 5 
minutes.
    Mr. Davis. Thank you.
    Governor, let me just ask you this question. As you know, 
our bill reported out an at-large. We think this works very 
well. That is the preferred mode.
    If somehow redistricting were put back in the lap of Utah, 
are you telling me that you would work to make sure that 
incumbent Members were involved and there would be no effort to 
gerrymander anyone's partisan advantage?
    Governor Huntsman. Fair and objective, that would be our 
approach.
    Mr. Davis. And you would work with the delegation, as 
well----
    Governor Huntsman. Yes, sir.
    Mr. Davis. --to make sure they were included in those 
discussions?
    I think that is important, should this go a direction that 
we don't want it to go, and I just wanted to get that on the 
record. Thank you.
    Let me ask if anyone up here can give me an example where a 
Federal court has limited the authority of Congress under the 
District Clause.
    Mr. Turley. Well, not in the sense of striking down the 
law, but starting in 1805, with Hepburn, the court made clear 
where the Congress could not go, and the Congress did not go 
there. The court made clear in 1805 that this was created to be 
a non-State entity. And the court has repeatedly referred to 
the non-voting status of the District. So Congress hasn't 
really pushed that envelope in the past.
    Mr. Davis. But there is no specific incident where Congress 
has acceded that and where the court has struck it down?
    Mr. Turley. Not until now, no.
    Mr. Charnes. But, in fact, I think there are examples where 
Congress has regulated, for example, in the Commerce Clause. 
The Commerce Clause gives Congress authority to regulate 
commerce among the several States. And Congress has exercised 
that authority with respect to commerce across the district 
lines, and the court has upheld that.
    So I think there is authority to the contrary, as well.
    Mr. Davis. And there is a State Clause in the Constitution, 
right? So that is why they are interpreting constitutional 
terms.
    Mr. Turley. That is right.
    Mr. Davis. Let me ask you. Everyone here believes the city 
should get a vote in Congress, is that fair to say? We are just 
disagreeing as to the means. Is that a fair comment?
    Mr. Turley. It is for me.
    Mr. Davis. I would just note that all four witnesses 
indicated in the affirmative.
    And let me ask, one of the difficulties of retrocession--
because we looked at this, it is an easy solution, but you are 
still stuck, as Chairman Chabot pointed out, with three 
electoral votes for whatever is left, whether it is the page 
dormitory, whether it is the White House, and it would take a 
constitutional amendment to change that.
    There is no other way around that, is there?
    Mr. Turley. I actually, in my testimony, deal with that and 
suggest that, indeed, there are.
    There is no question it would create another anomaly, but 
in my view, if you are not willing to repeal the amendment, 
then you can constructively repeal it.
    For example, under the proposal I suggested of creating 
that very small District of Columbia, just the seat of 
Government, the only residents it would contain would be the 
White House, which could be dealt with legislatively.
    But the amendment refers to Congress saying how the 
electoral votes will be established. And so Congress can simply 
not do that. It can go dormant, and I think that is achievable. 
There are other dormant aspects.
    Mr. Davis. But a lot of court cases have talked about 
ability of homeless people to move in and be registered and 
everything else. So it does open a can of worms.
    Mr. Turley. Well, actually, Congress can establish that 
there will be no residents, and, in fact, there cannot be. If 
you look at my proposal, it would just be actual Federal 
buildings. Homeless people cannot live in Federal buildings. It 
is already Federal jurisdictional land. So I think that you 
actually could force it into a dormancy even without a repeal.
    Mr. Fortier. One could also simply not have a seat of 
Government. As much as there were original reasons for it, the 
retrocession could go back to Maryland. There could be no seat 
of Government.
    The 23rd Amendment would exist, saying that the District 
would get these votes, but there would be no District, 
essentially. So I think that would work.
    Mr. Davis. In Federalist Paper 43, James Madison 
specifically states about the District, ``The state will no 
doubt provide in the compact for the rights and the consent of 
the citizens inhabiting the Federal district.''
    So the Government would provide for the compact for the 
rights and the consent of the citizens in having a Federal 
district. That doesn't sound to me like Madison thought the 
resident of a Federal district should have no Federal 
representation.
    And, in fact, when it was originally created, from 1790 to 
1800, they were citizens among the several States, and they did 
vote. They voted with Maryland, and they voted with Virginia.
    Why wouldn't Congress have that same authority to change 
it?
    Mr. Turley. Actually, I believe what Madison was saying is 
that when the land was ceded, there would be a negotiation with 
the affected States.
    In fact, Alexander Hamilton anticipated this, to put in a 
provision that said that the District residents could 
ultimately get a vote. But if you look at the Constitutional 
Convention, the ratification convention, it is perfectly clear 
in there that the understanding was they would not have a vote 
once the land was formally ceded.
    I think what Madison was saying is that the States 
themselves could negotiate this point as part of it. But 
repeatedly, as you see in my testimony, you have people that 
objected strenuously to the creation of this non-State entity 
without a vote in Congress.
    Mr. Davis. But there was no specific understanding that 
Congress couldn't revisit this later, was there?
    Mr. Chabot. The gentleman's time has expired, but you can 
respond to the question.
    Mr. Davis. Any of you?
    Mr. Turley. In terms of that they could return to it, the 
answer is yes, in one sense, because there was an effort to put 
the word ``permanently'' into the District Clause. That would 
have essentially forced the borders to remain rigid, and that 
was removed to give the Congress the ability.
    But I would suggest that that gave them the ability to 
relocate the Capital. That was the main concern. But it also 
gave them the ability to retrocede.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from North Carolina, Mr. Watt, is recognized.
    Mr. Watt. Thank you, Mr. Chairman.
    It looks like the Governor left, and that keeps me from 
being tempted to pick a fight with him. The fight was between 
Utah and North Carolina about this extra seat. [Laughter.]
    So I definitely wanted to go back at him about some of 
those things. So it is probably a good thing.
    Mr. Chabot. Would the gentleman yield for a moment?
    Mr. Watt. That would be a side issue.
    Yes, sir.
    Mr. Chabot. Yes, we did already get their okay to give them 
written questions. So you can make those questions as scathing 
as you would like. [Laughter.]
    Mr. Watt. Actually, I think it is an irrelevancy at this 
point, if Utah was next, which we concede. We don't concede it 
should have been in front of North Carolina, but we do concede 
that it would have been the next in line after North Carolina, 
and I believe in representation.
    So it doesn't hurt my feelings for Utah to get another 
Representative in Congress, just like it doesn't hurt my 
feelings for the District of Columbia to get representation in 
Congress, because I think that is what our democracy is about.
    Now, I understand Mr. Turley is leaving soon, too, and 
there are people here who--I am still studying this issue, but 
there are people who have a lot more knowledge about it, so I 
am going to yield.
    How much time do I have?
    Mr. Chabot. You have got 3 minutes and 40 seconds left.
    Mr. Watt. But you all passed over me in the first round, 
even though----
    Mr. Chabot. Plus you get another 5 minutes.
    Mr. Watt. Okay, so I will yield as much time, 6 minutes 
maybe--3 minutes to the gentlelady from the District and maybe 
the rest of my time to the gentlelady from Texas, who is not on 
the Subcommittee.
    Mr. Chabot. The gentleman yields.
    Ms. Norton. Thank the gentleman for yielding.
    I hope Mr. Turley won't leave before I have a question for 
him, but I must ask this question first, because we learned 
yesterday, indirectly, that there may be an amendment that 
wipes away the at-large agreement that Republicans and 
Democrats have worked to achieve and that the basis for that 
amendment is that the people of Utah would have two votes.
    And I would like you to comment on the notion that somehow 
Utah--Utah, with an at-large Member, you get two votes and your 
vote is somehow expanded rather than diminished.
    Mr. Turley. I would be happy to.
    Ms. Norton. I want all of you all to, but I certainly would 
like you to.
    Mr. Turley. The Utah portion of the bill is actually, in my 
view, a closer question, a very, very difficult one. And, as 
you know--you are an accomplished former academic and 
constitutional expert--I think you can recognize that this is 
an issue that has not gone before the Supreme Court.
    In the Supreme Court language, when it comes to one person, 
one vote, has always been pretty ambiguous. Now, in favor of 
what you are doing, quite frankly, the Supreme Court has 
accepted that there could be a 40 percent differential from a 
perfect district under one person, one vote. And I think that 
helps, because there is language there to say that they are not 
going to require the impossible of you.
    The concern I have about this, though, is that this is 
something we have never seen before. This district would be 
about 250 times the size of that perfect district mean, and in 
terms of population it would be about 2.2 million as opposed to 
about 640,000.
    But the other problem is that the court has said that they 
want to make sure that there is not a preferred class of 
voters, and, indeed, these voters would have two 
Representatives in Congress.
    Then my final concern is that people in Utah could object, 
because if they were to get their own district, it is very 
likely that Member would be different. For example, if this 
fourth district was coming out of Salt Lake City, my guess is 
that they would have a different type of Member representing 
different interests than an at-large seat.
    And so, all those issues go into the mix, and what it 
leaves me with, quite frankly, is great skepticism.
    Ms. Norton. Skepticism.
    Mr. Charnes, would you respond to that?
    Mr. Charnes. Sure. I think there is very little precedent 
on this point. The fact of the matter is the Supreme Court has 
not talked about State-by-State comparisons and one person, one 
vote. They have looked at districts within a State and have 
struck down some districts that are malapportioned.
    But here, I think there is very little precedent. As a 
practical matter, there are several States that only have one 
Representative, and the ratios will never work for those 
States, because you can't adjust those. You can't have a 
fraction of a Congressperson.
    So I don't think there is a sufficient precedent for the 
Subcommittee or the Congress to be terribly concerned about the 
at-large seat. There is great historical precedent for at-large 
seats.
    The first 50 years or so after the founding, there was 
almost a presumption that States would be represented with at-
large Members of the House. Of course, there is no precedent 
for having a combination of the two, but as Dr. Fortier has 
mentioned, this is a transitional thing that will just be 
present for a few years.
    It is reasonable and Congress, under the Constitution, 
actually, has pretty broad authority to intervene in State 
districting matters under article I, section 4.
    Mr. Chabot. The gentlelady's time has expired.
    The gentleman had given the rest of his time, I believe, to 
Ms. Jackson Lee.
    Is that correct, Mr. Watt?
    Mr. Watt. Yes.
    Mr. Chabot. We want to thank Professor Turley for his 
tremendous testimony this afternoon.
    Mr. Watt. Before the professor leaves, could I just clarify 
one thing? There is nothing constitutional about single-Member 
congressional districts. That is statutory, isn't that right?
    Mr. Turley. The constitutional problem comes in the one 
person, one vote aspect, yes.
    Mr. Watt. So, theoretically, we could make a multi-Member 
district statewide, two Members, for this transition period, if 
this got cumbersome.
    Mr. Turley. I am not too sure I would subscribe to that. I 
would have to look at it.
    Mr. Watt. But there is certainly nothing in the 
Constitution. There is a statute that requires single-Member 
districts at the congressional level. It is statutory; it is 
not constitutional.
    In fact, I introduced a bill several years ago to give that 
discretion back to the States to terminate the statutory 
provision. So if we terminated that statutory provision, you 
could create a multi-Member district for Utah.
    Mr. Turley. I would have to look at that, but the 
gravitational pull on that question is the Equal Protection 
Clause, and I am not too sure I would subscribe to it, but I 
would have to look at it.
    Thank you again for allowing me to appear.
    Mr. Chabot. Thank you very much, Professor.
    Mr. Watt. I will get to you on the next round. I think you 
have probably a different opinion, maybe.
    Ms. Norton. Mr. Turley, could you possibly stay for a 
moment?
    Mr. Turley. As long as you can order Delta not to----
    Mr. Watt. We are on my second round. You all don't squander 
my time now.
    Mr. Turley. I am afraid I have got a flight to Utah.
    Ms. Norton. Mr. Turley, I have been yielded time just for 
this question, because your testimony said that Congress 
understood, as a defining element of the Federal district, that 
there would be no vote for the people who lived here, and you 
said, in return, they somehow get to live here and they ought 
to be grateful for it.
    In Mr. Charnes's testimony, he seems to find a different 
intent and a different power that--and, here, I am going now to 
Mr. Charnes's testimony.
    In effect, what you are saying is that Maryland and 
Virginia, in ceding land, understood that they would, in fact--
the citizens, their citizens might lose the vote they had.
    Congress, in fact, passed legislation, according to Mr. 
Charnes, and then the States passed legislation guaranteeing 
that those voters in Maryland and Virginia would still have the 
vote.
    Do you really concede that the State of Virginia and the 
State of Maryland would have ceded land to the District of 
Columbia if they felt their residents would, as soon as it 
became the Nation's Capital, lose their voting representation 
in Congress?
    Mr. Turley. I do, in the sense that, if you look at my 
testimony, you will see repeated statements by individuals at 
that time objecting to the status. In fact, right after the 
land was----
    Ms. Norton. You know they didn't have to do it, that they 
were not compelled to cede the land.
    Mr. Turley. But right after they ceded the land, a 
retrocession movement began in Virginia, and, in fact, the 
issue of non-voting was the most recurrent theme there. People 
were objecting that this was despotism, that this was wrong.
    In fact, the debate that occurred back in the early 1800's 
is the exact same debate we are having now. And I happen to 
just disagree with my learned colleague, because I don't see 
how you read those debates, particularly when people are trying 
to suggest amendments that would allow the residents to vote 
and those amendments are not being taken up.
    And so this was an issue that was not just passed over. It 
was debated and rejected.
    But I have to beg your forgiveness. If I miss this flight, 
I will turn into a pumpkin.
    Mr. Watt. I am going to reclaim my time for the purpose of 
allowing you to go.
    Mr. Turley. Thank you very much.
    Ms. Norton. Mr. Charnes, would you respond?
    Mr. Watt. Wait a minute. I have got to yield to Ms. Jackson 
Lee, because I am going to run out of time.
    Ms. Jackson Lee. Let me go quickly, so my colleague can 
continue. Thank you.
    In the absence of the Governor, in the absence of Mr. 
Turley, let me, frankly, be very succinct in where I am going.
    I think Professor Turley was grounded on constitutional 
history and premise and the original desires of the Founding 
Fathers.
    Mr. Chabot. The gentlelady's time has expired. I am going 
to ask unanimous consent that the gentlelady be given 1 minute 
to at least make a statement.
    Ms. Jackson Lee. In any event, the idea is that there is a 
necessity for one vote, one person. The District of Columbia 
does not have that. That is a crisis, a constitutional crisis 
in and of itself.
    My question to you: Congress can do what it wants to do, is 
that not correct? Mr. Charnes, Congress can craft this 
legislation. Obviously, it may be subjected to constitutional 
muster, but they can write this legislation as a compromise and 
pass it, is that not correct?
    Mr. Charnes. That is correct.
    Ms. Jackson Lee. It would not be subject to constitutional 
question in the midst of Congress's work.
    And my last point is, then, my last point is, if there was 
the question of where you put the District of Columbia, we 
know, with no disrespect to Virginia, the referendum would not 
pass for it to go to Virginia. The referendum would not pass 
for it to go to Maryland. So, in essence, you box the District 
of Columbia in.
    There is no value to saying, ``Don't do anything,'' because 
then you, again, ignore the rights of people to have one vote, 
one person. Is that not fairly--I mean, I know you can't 
predict political votes, but there is no value to talking about 
inclusion into another State. I don't see the constitutional 
vision for inclusion in other States.
    There is a constitutional provision for making another 
State. Is that not correct?
    Mr. Chabot. The gentlelady's time has expired.
    Ms. Jackson Lee. Can he just answer that?
    Mr. Chabot. Yes, the witness can respond.
    Mr. Charnes. Well, I think that is right. I think the point 
you are getting to is you have got some alternatives that are 
very speculative that present varying degrees of political 
problems that suggest that they may never happen.
    And there is a proposal here on the table that seems a 
perfect storm, in a good sense. It has partisan balance. It 
rights historical wrongs. And it would seem a shame to pass up 
some benefit for residents of D.C. in order--sort of, almost 
letting the perfect be the enemy of the good.
    Mr. Chabot. The gentlelady's time has expired.
    Ms. Jackson Lee. I am willing to take my chances. Thank 
you.
    Mr. Chabot. The gentleman from Arizona is recognized for 5 
minutes.
    Mr. Franks. Thank you, Mr. Chairman. I just had a thought. 
If every voting mechanism in this country is one person, one 
vote, then, of necessity, we have to abolish the U.S. Senate--
which may be a really great idea, I am not sure.
    With that, I would like to yield my time to Mr. Cannon.
    Mr. Cannon. I thank the gentleman from Arizona.
    Mr. Charnes, in the testimony of both Mr. Turley and Mr. 
Fortier, they explicitly referenced the potential problems of 
giving D.C. a vote because of article I, section 2, referring 
to the people of the several States.
    Can you talk a little bit about the District Clause, how it 
works in conjunction with this section, and why it is not in 
contravention of that?
    Mr. Charnes. Sure. Well, the courts have uniformly 
explained that the District Clause gives Congress extraordinary 
authority legislating for the District. When Congress acts 
under its other authority, it is constrained by principles of 
federalism.
    And, likewise, when the States legislate, they are 
constrained not only by federalism principles, but various 
specific constitutional restrictions. The Commerce Clause I 
have referred to restricts what they can do, the Equal 
Protection Clause and so forth.
    The Congress, when it legislates for the District, 
basically has none of those constraints. And I think that it is 
that power that allows the Congress to conclude or to provide 
that the District of Columbia be treated as a district for 
purposes of representation in the House.
    If article I, section 2, clause 1 were perfectly clear, the 
Framers said it explicitly, ``D.C. residents shall not have a 
vote in the House, period,'' the District Clause, obviously, 
could not override that.
    But it doesn't say that. And, as I indicated before, the 
courts have not interpreted the phrase ``states'' so 
categorically to exclude Congress's authority under the 
District Clause.
    Mr. Cannon. I think diversity of jurisdiction is another 
example of that. We deal with diversity of jurisdiction in the 
District, do we not?
    Mr. Charnes. That is right. There are a number of examples. 
The Diversity Clause, Commerce Clause, article I, section 2, 
clause 3 refers to apportionment of taxes among the States, and 
the Supreme Court has said that that includes the District of 
Columbia.
    The sixth amendment, the right to a jury trial, refers to 
the partial jury of the State and district where the defendant 
lives, and the courts have said that that includes the District 
of Columbia.
    So there hasn't been sort of a categorical rigid 
interpretation of ``state'' in various provisions of the 
Constitution.
    Mr. Cannon. One of the more technical questions, for either 
of you, if you feel comfortable: If this legislation passes, 
Utah is the State that is likely to get the new seat. If that 
is certified based upon the last census, is redistricting done 
based upon the last census or upon the statistical updates to 
the last census or is that a choice by the State legislature?
    Mr. Fortier. I believe it is done on the last census 
numbers. We have the example in Texas and we also have numbers 
of court-ordered mid-decade redistricting, where it relies on 
the initial last census numbers.
    Mr. Cannon. Let me suggest that Utah has grown very rapidly 
in the last 6 years. My district has had most of that growth, 
just as an aside.
    And if the legislature chose to use statistical updates for 
redistricting, what effect would that have, do you think?
    Mr. Fortier. I mean, certainly, it would change the shapes 
of the districts and change what one could do.
    I guess the question is, do you rely on numbers that are 
officially sanctioned by the census, which is the baseline for 
what we tend to use, or do we feel comfortable with updating 
lines?
    I am not sure that the courts would absolutely forbid that, 
but my sense is that the census numbers are the most legally 
binding in that regard and you would have to----
    Mr. Cannon. Clearly, as of a point in time, they represent 
an enumeration. But all you have to do is drive around on new 
roads, new streets, and see new houses.
    Mr. Fortier. But that happens to almost--many States, as we 
get closer to the end of the district, the districts are of 
varying sizes. And there has to be some sort of line drawing as 
to 10 years, ``Why 10 years, not 5 years?"
    Mr. Cannon. I guess the real question is, if somebody sues, 
how do the courts rule on that?
    Mr. Fortier. I believe that they would require the use of 
the old census numbers.
    Mr. Cannon. Mr. Charnes, do you have a different view?
    Mr. Charnes. No, I actually don't have an opinion about 
that. But Congress has great authority under article I, section 
4 to intervene and to direct Utah how to create an at-large 
seat or how to draw the----
    Mr. Cannon. So you believe the at-large seat is okay.
    Mr. Charnes. Yes.
    Mr. Cannon. So in the contingency that the at-large seat 
does not happen--obviously, I am a supporter of the at-large 
seat, but if that happens, does the State legislature have 
latitude to use real numbers versus way out-of-whack numbers?
    Mr. Chabot. The gentleman's time has expired, but you can 
answer the question.
    Mr. Charnes. That is a very good question. It is sort of a 
little bit beyond my area of competence.
    Mr. Cannon. I would just like to say, Mr. Chairman, that 
Mr. Turley pointed out that he was going to Utah. I think this 
is a coincidence. He is certainly not in the pay of the State, 
as evidenced by his testimony.
    Mr. Chabot. Duly noted. The gentleman's time has expired.
    I would just make one point. Mr. Nadler had 5 minutes, and 
we had indicated that would allow him to yield that to Ms. 
Norton. So you are welcome to take that 5 minutes, if you would 
like to do that.
    Ms. Norton. Thank you very much, Mr. Chairman.
    We have heard two extraordinary propositions here: that the 
Framers intended to disenfranchise U.S. citizens, people who 
created this democratic public--that was Mr. Turley's 
testimony; and, secondly, that Maryland and Virginia ceded land 
without getting assurances that their people would not be 
permanently disenfranchised.
    I think in your testimony, Mr. Charnes, you describe how 
each of them passed their bills. They didn't have to cede a 
thing.
    Mr. Charnes. That is right.
    Ms. Norton. Talk about States' rights, this is the early 
Constitution, where States' rights were all--then the Congress 
passed legislation recognizing the right of Maryland and 
Virginia residents to vote.
    My question goes to when the Congress assumed full control. 
You said the United States firmly assumed full control of the 
District. Congress, by omission, withdrew the grant.
    There was no affirmative act of the Congress of the United 
States withdrawing the vote from these citizens of Maryland and 
Virginia. Did it simply lapse through inaction, not through any 
affirmative action indicating the intention of the first 
Congress?
    Mr. Charnes. I think that is absolutely right, 
Congresswoman. And I think that there was certainly debate and 
proposed amendments to fix the problem, but that all happened, 
I believe, after 1800.
    But I think the historical evidence suggests that no one 
really thought about this issue until the problem was presented 
in 1800, and then there were proposals and there was debate. 
And they, unfortunately, the proposed amendments, never went 
anywhere.
    But I think that reviewing the history suggests that no one 
really recognized the problem that would be created by the 
establishment of a district from land that was ceded by the 
States.
    Ms. Norton. It is very important, when we talk about the 
intent of the Framers and the intent of the good of the first 
Congress, because, to understand originalism, we look to those 
Framers, those first people, who wrote the Constitution.
    Another question, the-sky-is-falling notion from Mr. 
Turley, that once you use the at-large, and quoting from his 
testimony, ``Congress, by a future majority, could manipulate 
voting in Congress and reduce representation for insular 
groups.''
    He suggests that once an at-large remedy is granted for 4 
years, temporarily, Utah going back to four seats thereafter, 
what we can expect is Congress will reduce the rights of others 
not in the same position.
    I wish you would respond to that.
    Mr. Charnes. Sure. Well, Congress, in exercising its 
authority under article I, section 4, is bound, for example, by 
the Equal Protection Clause. So Congress could not pass a bill 
with the intent and effect of disenfranchising racial 
minorities and so forth.
    And I think the slippery-slope argument is one that you 
hear often, but I don't think there is any evidence here that--
there is no reason a court could not say that this transitional 
effort of giving an at-large seat to Utah was reasonable under 
the circumstances and commensurate with Congress's authority 
under article I, when other efforts that were plainly meant at 
disenfranchising people and had an adverse effect on their 
voting rights would fall outside Congress's authority.
    It strikes me that that is a somewhat speculative 
hypothetical. It is important to legislate understanding the 
slippery slope, but it is also important not to be paralyzed by 
slippery slopes.
    Mr. Fortier. Can I add that we have many cases of temporary 
things happening in the middle of the districts, States coming 
into the union, court cases where there have been temporary 
solutions, as well.
    The case where, early on, we had many, many multi-Member 
districts, we had--I think to answer Mr. Watt's question, we 
also had some mixed districts. Maryland, I think, actually had 
districts for the Electoral College, where western Maryland had 
a few, and it was different in the rest of the State.
    So I think there is a lot of flexibility and the mid-
district question we deal with all the time because of States 
having come in. And this will disappear in 4 years if that is 
what comes out of it.
    Ms. Norton. I would finally like to clear up the reputation 
of the Framers, this notion that they intended, as the price of 
living in the District of Columbia, that people would give up 
their voting representation in Congress, notwithstanding the 
efforts that were taken.
    I would like you to discuss the quid pro quo notion, 
especially in light of the concern that we all learned about of 
the local jurisdiction having control over the seat of 
Government.
    Now, which was their concern, and was there any discussion 
of any kind that what you should be glad of is somehow you are 
living in the District of Columbia? Living there gives you some 
power that others have through congressional representation, 
and that is the price you are going to pay?
    Mr. Chabot. The gentlelady's time has expired, but the 
witness or witnesses are free to answer the question.
    Mr. Charnes. I am not aware of any discussion along those 
lines, quid pro quo, and, therefore, the people who lived in 
the District should be glad to give up their voting rights in 
order for the privilege of living in the District.
    In fact, it has been alluded to, it was Madison that 
expressly said that Maryland and Virginia, the ceding States, 
would protect their own residents that they were losing 
through--before ceding the land, would ensure that their 
residents were taken care of.
    Of course, that apparently didn't happen, but I don't think 
there is any evidence before the cessions that there was sort 
of a quid pro quo along the lines you are talking about.
    Mr. Chabot. Mr. Fortier, anything?
    All time has expired. I want to thank the panel here, both 
those present and those that had to leave to catch flights, for 
their testimony this afternoon.
    I want to thank all the panel members who attended here 
this afternoon, both those on the Committee and those not. All 
the folks in the audience who came who have a particular 
interest in this issue.
    It is a very important issue. This is part of the process 
going through, and it is impossible to say at this point in 
time whether this change will occur or not. We will, obviously, 
confer with our colleagues about this.
    The record here is open and available to all Members of 
Congress, both on this Committee and those not on the 
Committee. And so, this is an important part of the process in 
deciding whether this change will be made ultimately or not.
    So I want to thank all for attending.
    If there is no further business to come before the 
Committee, we are adjourned. Thank you.
    [Whereupon, at 4:40 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

The Honorable Steve Chabot, a Representative in Congress from the State 
        of Ohio, and Chairman, Subcommittee on the Constitution














                               __________
       Prepared Statement of the Honorable Sheila Jackson Lee, a 
           Representative in Congress from the State of Texas








                               __________
     Letter from Greg J. Curtis, Speaker of the House, and Josh L. 
 Valentine, President of the Senate, Utah Legislature, to Chairman F. 
  James Sensenbrenner, Jr. in support of H.R. 5388, September 13, 2006


                               __________
     Testimony of Anthony A. Williams, Mayor, District of Columbia










                               __________
 Statement of the District of Columbia Affairs Section of the District 
                            of Columbia Bar










                               __________
      Statement of Charles Orndorff, the Conservative Caucus, Inc.














                               __________
               Statement of the American Bar Association






                               __________
Letter from Lawrence H. Mirel, Wiley Rein and Fielding LLP, to Chairman 
          Chabot and Ranking Member Nadler, September 20, 2006






                               __________
      Statement of Lawrence H. Mirel, Wiley Rein and Fielding LLP




















































                               __________
               Testimony of the DC Statehood Green Party








                               __________
Latham and Watkins LLP, ``Supplemental Analysis Regarding Possible D.C. 
  Voting Legislation by Representative Thomas M. Davis, III (R-VA),''






                               __________
   Latham and Watkins LLP, ``Analysis Regarding Possible D.C. Voting 
      Legislation by Representative Thomas M. Davis, III (R-VA),''










                               __________
Memorandum from Congressional Research Service, ``Constitutionality of 
     Congress Creating an At-Large Seat for a Member of Congress''








                               __________
   Letter in support of H.R. 5388 from Robert C. Keithan, Director, 
Unitarian Universalist Association of Congregations, to Representative 
                        Tom Davis, May 18, 2006


                               __________
 Letter in support of H.R. 5388 from Kay J. Maxwell, President, League 
 of Women Voters, to Members of the House Judiciary Committee, May 31, 
                                  2006


                               __________
Letter in support of H.R. 5388 from Marc H. Morial, President and CEO, 
                  National Urban League, June 12, 2006


                               __________
Letter in support of H.R. 5388 from Robert D. Evans, Director, American 
Bar Association, to Chairman F. James Sensenbrenner, Jr., June 16, 2006








                               __________
  Letter in support of H.R. 5388 from Dr. Clark Lobenstein, Executive 
  Director, the InterFaith Conference of Metropolitan Washington, to 
          Chairman F. James Sensenbrenner, Jr., June 21, 2006


                               __________
  Letter in support of H.R. 5388 from Joslyn N. Williams, President, 
        Metropolitan Washington Council, AFL-CIO, June 27, 2006




                               __________
   Letter in support of H.R. 5388 from Melvin S. Lipman, President, 
              American Humanist Association, July 14, 2006


                               __________

 Letter regarding H.R. 5388 from Ronald Jackson, Executive Director of 
   D.C. Catholic Conference, and Michael Scott, Coordinator of D.C. 
   Legislative Network, the Archdiocese of Washington, July 20, 2006


                               __________

  Letter in support if H.R. 5388 from Patricia M. Wald to Chairman F. 
                James Sensenbrenner, Jr., July 25. 2006


                               __________

 ``Jewish Organizations Support H.R. 5388,'' Letter in Support of H.R. 
                          5388, July 25, 2006


                               __________

Letter in support of H.R. 5388 from the Leadership Conference of Civil 
                       Rights, September 13, 2006





                               __________

 Memo in support of H.R. 5388 from the Leadership Conference on Civil 
                                 Rights




                               __________

Letter in support of H.R. 5388 from Ralph G. Neas, President, and Tanya 
  Clay House, Director of Public Policy, People for the American Way, 
                           September 13, 2006


                               __________

    ``Reform Jewish Leader Urges Committee to Support Congressional 
             Representation for Washington, D.C. Residents


                               __________

 Letter in support of H.R. 5388 from Rabbi David Saperstein, Director 
 and Counsel, Religious Action Center of Reform Judaism, September 13, 
                                  2006


                               __________

   Letter in support of H.R. 5388 from Hilary O. Shelton, Director, 
 National Association for the Advancement of Colored People (NAACP) to 
   Members of the House Commitee on the Judiciary, September 13, 2006




                               __________

``Interfaith Coalition Supports H.R. 5388,'' Letter in support of H.R. 
 5388 from a broad coalition of religious organizations, September 13, 
                                  2006


                               __________

  Letter in support of H.R. 5388 from Richard T. Foltin, Legislative 
  Director and Counsel, and David Berstein, Executive Director of the 
 Washington Chapter, The American Jewish Committee, September 14, 2006


                               __________

Letter in support of H.R. 5388 from Chellie Pingree, President and CEO, 
                    Common Cause, September 20, 2006


 ``Support Democracy in Our Nation's Capital,'' The Coalition to Stop 
                              Gun Violence






                                 
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