[Senate Report 110-123]
[From the U.S. Government Publishing Office]
110th Congress Report
SENATE
1st Session 110-123
_______________________________________________________________________
Calendar No. 257
DISTRICT OF COLUMBIA HOUSE VOTING RIGHTS ACT OF 2007
----------
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 1257
together with
ADDITIONAL VIEWS
TO PROVIDE THE DISTRICT OF COLUMBIA A VOTING SEAT AND THE STATE OF UTAH
AN ADDITIONAL SEAT IN THE HOUSE OF REPRESENTATIVES
June 28, 2007.--Ordered to be printed
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana TOM COBURN, Oklahoma
BARACK OBAMA, Illinois PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri JOHN WARNER, Virginia
JON TESTER, Montana JOHN E. SUNUNU, New Hampshire
Michael L. Alexander, Staff Director
Deborah P. Parkinson, Professional Staff Member
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Amy L. Hall, Minority Professional Staff Member
Trina Driessnack Tyrer, Chief Clerk
Calendar No. 257
110th Congress Report
SENATE
1st Session 110-123
======================================================================
DISTRICT OF COLUMBIA HOUSE VOTING RIGHTS ACT OF 2007
_______
June 28, 2007.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 1257]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 1257) to provide
the District of Columbia a voting seat and the State of Utah an
additional seat in the House of Representatives, having
considered the same, reports favorably thereon with amendments
and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
IV. Section-by-Section Analysis......................................5
V. Evaluation of Regulatory Impact..................................6
VI. Congressional Budget Office Cost Estimate........................7
VII. Changes in Existing Law Made by the Bill, as Reported...........10
VIII.Additional Views................................................22
I. Purpose and Summary
The purpose of S. 1257 is to provide the District of
Columbia with full representation in the U.S. House of
Representatives. The bill permanently expands the U.S. House of
Representatives from 435 to 437 seats. The two-seat increase
will provide a voting representative to the District of
Columbia and a fourth seat to the State of Utah, the next state
in line to receive an additional seat based on the 2000 census.
II. Background and Need for the Legislation
BACKGROUND
The citizens of the District of Columbia have lived without
a voting representative in Congress since the federal
government established the District as the nation's capital on
land ceded by Maryland and Virginia over 200 years ago.\1\
Although the land was ceded to the federal government in 1790,
the District of Columbia was not officially established by
Congress for another ten years.\2\ Between 1790 and 1800,
residents of what would become the District were allowed
through legislation to continue to vote in congressional
elections in their former states.\3\ Congress then passed the
Organic Act of 1801 severing District residents' ties with
Maryland and Virginia, thereby eliminating District residents'
representation in Congress.\4\
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\1\ Equal Representation in Congress: Providing Voting Rights to
the District of Columbia: Hearing Before the Senate Comm. on Homeland
Security and Governmental Affairs, 110th Cong. (2007) (testimony of
Viet D. Dinh).
\2\ Id.
\3\ Id.
\4\ Id.
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Today, District residents, who number close to 600,000, are
still disenfranchised. These American citizens pay federal
income taxes, serve in the military, and fulfill all other
obligations of citizenship. Arguably, DC residents are more
impacted by the federal government than the rest of the nation.
The District has the second highest tax obligation per capita
in the country;\5\ the District, unlike every other U.S. city,
must receive the approval of Congress to spend locally
generated tax dollars; and many District residents work for the
federal government, meaning that their benefits and salary are
directly impacted by the decisions of Congress. Moreover, DC
has been the target of terrorist attack because it is the home
of the U.S. government. Yet District residents do not have a
vote in determining tax levels, defense and homeland security
policy, or decisions impacting the federal workforce.
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\5\ Equal Representation in Congress: Providing Voting Rights to
the District of Columbia: Hearing Before the Senate Comm. on Homeland
Security and Governmental Affairs, 110th Cong. (2007) (testimony of
Adrian M. Fenty).
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Most Americans disapprove of the denial of voting rights to
residents of the nation's capital. In 2005, an independent
research firm found that 82 percent of Americans support equal
voting rights in Congress for the District of Columbia.\6\ The
results of the poll were consistent across the country
regardless of age, geography, religion, or political
affiliation.\7\
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\6\ KRC Research, Survey conducted for DC Vote, U.S. Public Opinion
on DC Voting Rights (January 2005).
\7\ Id.
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Moreover, the denial of voting representation to the
District is a blemish on the United States' reputation in the
international community. The United States is the only
democracy in the world that denies voting representation to the
residents of its nation's capital.\8\ This inconsistency was
criticized by the Organization of American States in 1993 when
it issued a report finding that the United States was in
violation of international human rights law.\9\ The United
Nations Human Rights Commission followed suit in 2006 by
admonishing the U.S. for violating the International Covenant
on Civil and Political Rights.\10\
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\8\ Rick Bress, Memorandum submitted to the U.S. House of
Representatives, Committee on the Judiciary, Constitutionality of the
D.C. Voting Rights Bill (March 2006).
\9\ Inter-American Commission on Human Rights, Organization of
American States, Report Number 98/03, Case 11.204 (December 2003).
\10\ United Nations Human Rights Commission, International Covenant
on Civil and Political Rights (September 2006) at 11-12.
---------------------------------------------------------------------------
S. 1257 would correct this injustice by providing the
District with one voting member in the U.S. House of
Representatives beginning with the 111th Congress.
The legislation would also give Utah, the next state in
line to receive an additional representative based on the 2000
census, a fourth seat in the House. Utah missed a fourth seat
by less than 1,000 people in the year 2000 even though Utah
officials argued that close to 10,000 missionaries were
excluded from that count. Moreover, Utah's population has grown
substantially since that time. According to the U.S. Census
Bureau, Washington County in Southern Utah is the nation's
fastest-growing metro area.\11\ The county's population has
grown by over 40 percent since 2000, and the growth statistics
from around the state are equally impressive.\12\ Based on its
current population, Utah deserves a fourth seat in the House.
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\11\ U.S. Census Bureau, Population Change in the 100 Metropolitan
Statistical Areas With the Largest Numeric Gain: April 1, 2000 to July
1, 2006 (April 2007).
\12\ Id.
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CONGRESS'S CONSTITUTIONAL AUTHORITY
Though some disagree, many constitutional scholars believe
that providing the District with a House representative through
legislation is clearly constitutional. In May 2007, 25 widely
respected legal scholars wrote to Congress affirming that
``Congress has the power through `simple' legislation to
provide voting representation in Congress for DC residents.''
\13\ This authority lies within Article I, Section 8 of the
Constitution (``the District Clause''), which gives Congress
authority to ``exercise exclusive legislation in all cases
whatsoever'' regarding the District of Columbia.\14\
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\13\ Sheryll D. Cahsin, Viet D. Dinh, and 23 other legal scholars,
Letter to the U.S. House of Representatives on the Constitutionality of
DC Voting Rights Legislation (included in the May 15, 2007 hearing
record) (March 2007).
\14\ U.S. CONST., Art. I, Sec. 8, cl. 17.
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Those who argue that Congress does not have the authority
to legislatively create a House seat for DC reference Article
I, Section 2 of the Constitution, which states that the House
``shall be composed of members chosen * * * by the people of
the several states.'' \15\ However, the District did not exist
when these words were ratified, and they cannot be read in
isolation.\16\
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\15\ U.S. CONST., Art. I, Sec. 2, cl. 1.
\16\ Peter Raven-Hansen, Congressional Representation for the
District of Columbia: A Constitutional Analysis, 12 Harv. J. on
Legis.167, 172 (1975).
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Courts have repeatedly upheld Congress's broad use of the
District Clause to apply to the District constitutional
provisions that on their face are limited to states. Article I,
Section 2, for example, says that ``direct taxes shall be
apportioned among the several states.'' \17\ In 1820, the
Supreme Court unanimously held that Congress, exercising its
legislative authority over the District, could impose direct
federal taxes on District residents. Chief Justice John
Marshall wrote that ``certainly the Constitution does not
consider [the District's] want of a representative in Congress
as exempting it from equal taxation.'' \18\ If the word
``states'' did not prevent Congress from imposing taxes on
District residents then, how can it prevent Congress from
granting representation to District residents now?
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\17\ U.S. CONST., Art. I, Sec. 2, cl. 3.
\18\ Loughborough v. Blake, 18 U.S. (5 Wheat.) 317, 320 (1820).
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Article III grants the federal courts jurisdiction over
controversies ``between citizens of different states.'' \19\
Noting that it would be ``extraordinary'' for courts to be open
to citizens of states but not citizens of the District,\20\ the
Supreme Court unanimously held that Congress could correct this
anomaly, and later upheld Congress' decision to do so by
legislation.\21\ If the word ``states'' did not prevent
Congress from granting access to the judicial branch then, how
can it prevent Congress from granting access to the legislative
branch today?
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\19\ U.S. CONST., Art. III, Sec. 2, cl. 1.
\20\ Hepburn, 6 U.S. (2 Cranch) at 453 (1805).
\21\ Nat'l Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582,
600 (1949).
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Originally, the Fourteenth Amendment's guarantee of due
process and equal protection applied only to states.\22\ The
Supreme Court held in 1973 that while the Fourteenth Amendment
itself does not apply to the District, Congress could extend
the same protections by legislation under the District
Clause.\23\ Congress did just that.\24\ If the word ``state''
did not prevent Congress from allowing District residents to
sue for violation of constitutional rights, how can it prevent
Congress from granting District residents a full voice in that
same Congress?
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\22\ U.S. Const. amend. XIV, Sec. 1.
\23\ District of Columbia v. Carter, 409 U.S. 418 (1973).
\24\ P.L. 96-170.
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In 2000, after determining that the District does not have
a ``judicially cognizable'' right to congressional
representation, the Supreme Court affirmed that the District
may pursue that goal in ``other venues,'' suggesting that such
authority could be granted legislatively.\25\
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\25\ Equal Representation in Congress: Providing Voting Rights to
the District of Columbia: Hearing Before the Senate Comm. on Homeland
Security and Governmental Affairs, 110th Cong. (2007) (testimony of
Viet D. Dinh).
---------------------------------------------------------------------------
Two centuries of political and judicial precedent support
Congress's authority to legislatively extend House
representation to the District under the District Clause. The
Committee believes this authority, which the Supreme Court
described as ``plenary in every respect,'' \26\ allows Congress
to live up to the principles this nation was founded upon, and
provide representation in the U.S. House of Representatives to
the District of Columbia.
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\26\ Nat'l Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582,
592 (1949).
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III. Legislative History
S. 1257 was introduced by Chairman Lieberman, Senator
Hatch, and Senator Bennett on May 1, 2007, and was referred to
the Committee on Homeland Security and Governmental Affairs.
The bill was later cosponsored by Senators Clinton, Landrieu,
Leahy, Kennedy, Obama, Mikulski, Kerry, Feingold, McCaskill,
Pryor, Carper, Levin, and Sanders.
The Committee held a hearing entitled ``Equal
Representation in Congress: Providing Voting Rights to the
District of Columbia,'' on May 15, 2007. Testimony was received
from: Senator Orrin G. Hatch; Representative Tom Davis;
Delegate Eleanor Holmes Norton; Mayor Adrian Fenty, District of
Columbia; Jack Kemp, former Congressman and Secretary of
Housing and Urban Development; Wade Henderson, President and
Chief Executive Officer, Leadership Conference on Civil Rights;
Viet D. Dinh, Professor of Law, Georgetown University Law
Center; and Jonathan R. Turley, Professor of Law, George
Washington University Law School.
The Committee on the Judiciary held a subsequent hearing
entitled, ``Ending Taxation without Representation: The
Constitutionality of S. 1257,'' on May 23, 2007. Testimony was
received from: Representative Chris Cannon; Delegate Eleanor
Holmes Norton; Mark L. Shurtleff, Utah Attorney General; John
P. Elwood, Deputy Assistant Attorney General, Department of
Justice; Patricia Wald, former Chief Judge, United States Court
of Appeals for the District of Columbia Circuit; Jonathan
Turley, Professor of Law, George Washington University Law
School; Charles J. Ogletree, Professor of Law, Harvard Law
School; Kenneth R. Thomas, Congressional Research Service; and
Richard P. Bress, Partner, Latham & Watkins, LLP.
On June 13, 2007, the Committee considered S. 1257.
The Committee adopted two amendments offered by Senator
Collins and cosponsored by Senators Coleman and Voinovich. The
first added a provision to the bill stating that the District
shall not be considered a state for the purposes of Senate
representation. This amendment was adopted by voice vote.
Senators present were Lieberman, Levin, Akaka, Landrieu,
Obama, McCaskill, Tester, Collins, Stevens, Voinovich, Coleman,
and Warner.
The second amendment required expedited consideration of
any constitutional challenge to the legislation. The amendment
was adopted by a vote of 15-1.
Yeas: Lieberman, Levin, Akaka, Landrieu, Obama, Tester,
Collins, Voinovich, Coleman, and Warner. Yeas by proxy: Carper,
Pryor, McCaskill, Domenici, and Sununu. Nays: Stevens. Senator
Coburn was not present and provided no instructions.
By a vote of 9-1, the Committee ordered the bill as amended
favorably reported to the full Senate.
Yeas: Lieberman, Levin, Akaka, Landrieu, Obama, Tester,
Collins, Voinovich, and Coleman. Nays: Warner. Yeas by proxy:
Carper, Pryor, McCaskill. Nays by proxy: Stevens, Coburn,
Domenici, and Sununu.
IV. Section-by-Section Analysis
Section 1. Short title
Section 2. Treatment of District of Columbia as a Congressional
District
This section requires that the District of Columbia be
treated as a congressional district for purposes of
representation in the House of Representatives. House
representation will apply to the District in the same way as to
a state, except that the District may not receive more than one
member under reapportionment of members. The section further
clarifies that the District may not be treated as a state for
purposes of Senate representation.
Section 3. Increase in membership of House of Representatives
This section requires a permanent increase in the number of
members in the House of Representatives from 435 to 437,
effective with the 111th Congress and each succeeding Congress.
One of the new members will be elected from the District of
Columbia and the other from the state next in line to receive
an additional seat, based on the 2000 census. The President is
required to transmit a revised statement of reapportionment to
Congress within 30 days of the enactment of this Act. The Clerk
of the House of Representatives is then required to submit a
report to the Speaker within 15 days of receiving the revised
statement of apportionment naming Utah as the state receiving
an additional seat (in addition to the District).
Section 4. Effective date; Timing of elections
This section states that the new members from the District
of Columbia and Utah may not be seated until the 111th
Congress. In order for both members to be seated, the
additional representative from Utah must be elected according
to a redistricting plan enacted by the State of Utah. The
Committee is aware that Utah signed a new redistricting plan
into law on December 6, 2006, and encourages the state to use
that plan. This plan will stay in effect for the 111th and
112th Congresses.
Section 5. Conforming amendments
This section repeals the Office of the District of Columbia
Delegate and the Office of the Statehood Representative. This
section also contains a number of conforming amendments to the
District of Columbia Election Code and the law governing
appointments to the military academies to reflect the repeal of
the DC delegate and the establishment of a voting
representative for the District.
Section 6. Nonseverability of provisions
If any provision in this bill is determined to be invalid,
the entire bill will be deemed invalid and have no effect of
law.
Section 7. Judicial review
If a legal challenge is brought to any provision in this
bill, the judicial review shall be expedited to the greatest
possible extent. The legal action will be heard by a 3-judge
court in the U.S. District Court for the District of Columbia,
and any appeal must be made directly to the Supreme Court.
V. Evaluation of Regulatory Impact
Pursuant to the requirement of paragraph 11(b)(1) of rule
XXVI of the Standing Rules of the Senate the Committee has
considered the regulatory impact of this bill. CBO states that
there are no intergovernmental or private-sector mandates as
defined in the Unfunded Mandates Reform Act and no costs on
State, local, or tribal governments. The legislation contains
no other regulatory impact.
VI. Estimated Cost of Legislation
June 15, 2007.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1257, the District
of Columbia House Voting Rights Act of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Peter R. Orszag.
Enclosure.
S. 1257--District of Columbia House Voting Rights Act of 2007
Summary: S. 1257 would expand the number of Members in the
House of Representatives from 435 to 437 beginning with the
111th Congress. The legislation would provide the District of
Columbia with one permanent Representative and add one
additional new Member. Under S. 1257, the seat would initially
be assigned to the state of Utah and then would be reallocated
based on the next Congressional apportionment following the
2010 census.
CBO estimates that enacting the bill would increase direct
spending by about $200,000 in 2009 and by about $2 million over
the 2008-2017 period. In addition, implementing the bill would
have discretionary costs of about $1 million in 2009 and about
$7 million over the 2008-2012 period, assuming the availability
of the appropriated funds.
S. 1257 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no significant costs on state, local, or
tribal governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 1257 is shown in the following table.
The costs of this legislation fall within budget function 800
(general government).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
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2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2008- 2012 2008- 2017
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CHANGES IN DIRECT SPENDING
New Representative's Salary and Benefits:
Estimated Budget Authority.......................... 0 * * * * * * * * * 1 2
Estimated Outlays................................... 0 * * * * * * * * * 1 2
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
New Representative's Office and Administrative Expenses:
Estimated Authorization Level....................... 0 1 2 2 2 2 2 2 2 2 7 17
Estimated Outlays................................... 0 1 2 2 2 2 2 2 2 2 7 17
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Note: * = less than $500,000.
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted this year and that spending will follow
historical patterns for Congressional office spending,
beginning in 2009.
The legislation would permanently expand the number of
Members in the House of Representatives by two to 437 Members.
The new representatives would take office on the same day
beginning with the 111th Congress. One new Member would
represent the District of Columbia and the other would be a
Representative for the state of Utah until the next
apportionment based on the 2010 census. The District of
Columbia currently has a nonvoting delegate to the House of
Representatives. S. 1257 would establish voting representation
for the conversion of the District's delegate to Representative
and would not add significant costs since the position is
already funded with the same salary and administrative support
as other Representatives.
Direct spending
Enacting S. 1257 would increase direct spending for the
salary and associated benefits for the new representative,
beginning with a new Member from the state of Utah until the
next apportionment based on the 2010 census. CBO estimates that
the increase in direct spending for the Congressional salary
and benefits would be about $2 million over the 2008-2017
period. That estimate assumes that the current Congressional
salary of $165,200 would be adjusted for inflation. With
benefits, the 2008 cost would be about $200,000.
Spending subject to appropriation
Based on the current administrative and expense allowances
available for Members and other typical Congressional office
costs, CBO estimates that the addition of a new Member would
cost about $1 million in fiscal year 2009 and about $7 million
over the 2008-2012 period, subject to the availability of
appropriated funds.
Intergovernmental and private-sector impact: S. 1257
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no significant costs on state,
local, or tribal governments.
Previous CBO estimate: On March 16, 2007, CBO transmitted a
cost estimate for H.R. 1433, the District of Columbia House
Voting Rights Act of 2007, as ordered reported by the House
Committee on the Judiciary on March 15, 2007, and the House
Committee on Oversight and Government Reform on March 13, 2007.
The three pieces of legislation are similar in that they all
expand the number of Members in the House of Representatives.
Under H.R. 1433, the new Members would take office during the
110th Congress. Under the Senate bill, membership in the House
of Representatives would be expanding beginning with the 111th
Congress. The cost estimates reflect that difference.
Estimate prepared by: Federal costs: Matthew Pickford;
Impact on state, local, and tribal governments: Elizabeth Cove;
Impact on the private-sector: Paige Piper/Bach.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
VII. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the following changes in existing
law made by the bill, as reported, are shown as follows:
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman):
SECTION 22 OF THE ACT OF JUNE 18, 1929
AN ACT To provide for the fifteenth and subsequent decennial censuses
and to provide for apportionment of Representatives in Congress.
Sec. 22. (a) On the first day, or within one week
thereafter, of the first regular session of the Eighty-second
Congress and of each fifth Congress thereafter, the President
shall transmit to the Congress a statement showing the whole
number of persons in each State, excluding Indians not taxed,
as ascertained under the seventeenth and each subsequent
decennial census of the population, and the number of
Representatives to which each State would be entitled under an
apportionment of [the then existing number of Representatives]
the number of Representatives established with respect to the
One Hundred Tenth Congress by the method known as the method of
equal proportions, no State to receive less than one Member.
* * * * * * *
(d) This section shall apply with respect to the District
of Columbia in the same manner as this section applies to a
State, except that the District of Columbia may not receive
more than one Member under any reapportionment of Members.
SECTION 3 OF TITLE 3, UNITED STATES CODE
NUMBER OF ELECTORS
Sec. 3. The number of electors shall be equal to the number
of Senators and Representatives to which the several States are
by law entitled at the time when the President and Vice
President to be chosen [come into office;] come into office
(subject to the twenty-third amendment to the Constitution of
the United States in the case of the District of Columbia);
except, that where no apportionment of Representatives has been
made after any enumeration, at the time of choosing electors,
the number of electors shall be according to the then existing
apportionment of Senators and Representatives.
TITLE 10, UNITED STATES CODE
* * * * * * *
Subtitle B--Army
* * * * * * *
PART III--TRAINING
* * * * * * *
CHAPTER 403--UNITED STATES MILITARY ACADEMY
* * * * * * *
SEC. 4342. CADETS: APPOINTMENT; NUMBERS, TERRITORIAL DISTRIBUTION
(a) The authorized strength of the Corps of Cadets of the
Academy (determined for any year as of the day before the last
day of the academic year) is 4,000 or such higher number as may
be prescribed by the Secretary of the Army under subsection
(j). Subject to that limitation, cadets are selected as
follows:
(1) * * *
* * * * * * *
[(5) Five cadets from the District of Columbia, nominated
by the Delegate to the House of Representatives from the
District of Columbia.]
* * * * * * *
(f) Each candidate for admission nominated under clauses
(3) through (9) of subsection (a) must be domiciled in the
State, or in the congressional district, from which he is
nominated, or in [the District of Columbia,] Puerto Rico,
American Samoa, Guam, or the Virgin Islands, if nominated from
one of those places.
* * * * * * *
Subtitle C--Navy and Marine Corps
* * * * * * *
PART III--EDUCATION AND TRAINING
* * * * * * *
CHAPTER 603--UNITED STATES NAVAL ACADEMY
* * * * * * *
SEC. 6954. MIDSHIPMEN: NUMBER
(a) The authorized strength of the Brigade of Midshipmen
(determined for any year as of the day before the last day of
the academic year) is 4,000 or such higher number as may be
prescribed by the Secretary of the Navy under subsection (h).
Subject to that limitation, midshipmen are selected as follows:
(1) * * *
* * * * * * *
[(5) Five from the District of Columbia, nominated by the
Delegate to the House of Representatives from the District of
Columbia.]
* * * * * * *
SEC. 6958. MIDSHIPMEN: QUALIFICATIONS FOR ADMISSION
(a) * * *
(b) Each candidate for admission nominated under clauses
(3) through (9) of section 6954(a) of this title must be
domiciled in the State, or in the congressional district, from
which he is nominated, or in [the District of Columbia,] Puerto
Rico, American Samoa, Guam, or the Virgin Islands, if nominated
from one of those places.
* * * * * * *
Subtitle D--Air Force
* * * * * * *
PART III--TRAINING
* * * * * * *
CHAPTER 903--UNITED STATES AIR FORCE ACADEMY
* * * * * * *
SEC. 9342. CADETS: APPOINTMENT; NUMBERS, TERRITORIAL DISTRIBUTION.
(a) The authorized strength of Air Force Cadets of the
Academy (determined for any year as of the day before the last
day of the academic year) is 4,000 or such higher number as may
be prescribed by the Secretary of the Air Force under
subsection (j). Subject to that limitation, Air Force Cadets
are selected as follows:
(1) * * *
* * * * * * *
[(5) Five cadets from the District of Columbia, nominated
by the Delegate to the House of Representatives from the
District of Columbia.]
* * * * * * *
(f) Each candidate for admission nominated under clauses
(3) through (9) of subsection (a) must be domiciled in the
State, or in the congressional district, from which he is
nominated, or in [the District of Columbia,] Puerto Rico,
American Samoa, Guam, or the Virgin Islands, if nominated from
one of those places.
* * * * * * *
DISTRICT OF COLUMBIA DELEGATE ACT
TITLE II--DISTRICT OF COLUMBIA DELEGATE TO THE HOUSE OF REPRESENTATIVES
SHORT TITLE
SEC. 201. THIS TITLE MAY BE CITED AS THE `DISTRICT OF COLUMBIA DELEGATE
ACT'.
[DELEGATE TO THE HOUSE OF REPRESENTATIVES]
[Sec. 202. (a) The people of the District of Columbia shall
be represented in the House of Representatives by a Delegate,
to be known as the `Delegate to the House of Representatives
from the District of Columbia', who shall be elected by the
voters of the District of Columbia in accordance with the
District of Columbia Election Act. The Delegate shall have a
seat in the House of Representatives, with the right of debate,
but not of voting, shall have all the privileges granted a
Representative by section 6 of Article I of the Constitution,
and shall be subject to the same restrictions and regulations
as are imposed by law or rules on Representatives. The Delegate
shall be elected to serve during each Congress.]
[(b) No individual may hold the office of Delegate to the
House of Representatives from the District of Columbia unless
on the date of his election--]
[(1) he is a qualified elector (as that term is
defined in section 2(2) of the District of Columbia
Election Act) of the District of Columbia;]
[(2) he is at least twenty-five years of age;]
[(3) he holds no other paid public office; and]
[(4) he has resided in the District of Columbia
continuously since the beginning of the three-year
period ending on such date.]
He shall forfeit his office upon failure to maintain the
qualifications required by this subsection.
* * * * * * *
[OTHER PROVISIONS AND AMENDMENTS RELATING TO THE
ESTABLISHMENT OF A DELEGATE TO THE HOUSE OF REPRESENTATIVES
FROM THE DISTRICT OF COLUMBIA]
[Sec. 204. (a) The provisions of law which appear in--]
[(1) section 25 (relating to oath of office),]
[(2) section 31 (relating to compensation),]
[(3) section 34 (relating to payment of
compensation),]
[(4) section 35 (relating to payment of
compensation),]
[(5) section 37 (relating to payment of
compensation),]
[(6) section 38a (relating to compensation),]
[(7) section 39 (relating to deductions for
absence),]
[(8) section 40 (relating to deductions for
withdrawal),]
[(9) section 40a (relating to deductions for
delinquent indebtedness),]
[(10) section 41 (relating to prohibition on
allowance for newspapers),]
[(11) section 42c (relating to postage allowance),]
[(12) section 46b (relating to stationery
allowance),]
[(13) section 46b-1 (relating to stationery
allowance),]
[(14) section 46b-2 (relating to stationery
allowance),]
[(15) section 46g (relating to telephone, telegraph,
and radiotelegraph allowance),]
[(16) section 47 (relating to payment of
compensation),]
[(17) section 48 (relating to payment of
compensation),]
[(18) section 49 (relating to payment of
compensation),]
[(19) section 50 (relating to payment of
compensation),]
[(20) section 54 (relating to provision of United
States Code Annotated or Federal Code Annotated),]
[(21) section 60g-1 (relating to clerk hire),]
[(22) section 60g-2(a) (relating to interns),]
[(23) section 80 (relating to payment of
compensation),]
[(24) section 81 (relating to payment of
compensation),]
[(25) section 82 (relating to payment of
compensation),]
[(26) section 92 (relating to clerk hire),]
[(27) section 92b (relating to pay of clerical
assistants),]
[(28) section 112e (relating to electrical and
mechanical office equipment),]
[(29) section 122 (relating to office space in the
District of Columbia), and]
[(30) section 123b (relating to use of House
Recording Studio),]
of title 2 of the United States Code shall apply with respect
to the Delegate to the House of Representatives from the
District of Columbia in the same manner and to the same extent
as they apply with respect to a Representative. The Federal
Corrupt Practices Act and the Federal Contested Election Act
shall apply with respect to the Delegate to the House of
Representatives from the District of Columbia in the same
manner and to the same extent as they apply with respect to a
Representative.
[(b) Section 2106 of title 5 of the United States Code is
amended by inserting `a Delegate from the District of
Columbia,' immediately after `House of Representatives,'.]
[(c) Sections 4342(a)(5), 6954(a)(5), and 9342(a)(5) of
title 10 of the United States Code are each amended by striking
out `by the Commissioner of that District' and inserting in
lieu thereof `by the Delegate to the House of Representatives
from the District of Columbia'.]
[(d)(1) Section 201(a) of title 18 of the United States
Code is amended by inserting `the Delegate from the
District of Columbia,' immediately after `Member of
Congress,'.]
[(2) Sections 203(a)(1) and 204 of title 18 of the United
States Code are each amended by inserting `Delegate from the
District of Columbia, Delegate Elect from the District of
Columbia,' immediately after `Member of Congress Elect,'.]
[(3) Section 203(b) of title 18 of the United States Code
is amended by inserting `Delegate,' immediately after
`Member,'.]
[(4) The last undesignated paragraph of section 591 of
title 18 of the United States Code is amended by inserting `the
District of Columbia and' immediately after `includes'.]
[(5) Section 594 of title 18 of the United States Code is
amended (1) by striking out `or' immediately after `Senate,',
and (2) by striking out `Delegates or Commissioners from the
Territories and possessions' and inserting in lieu thereof
`Delegate from the District of Columbia, or Resident
Commissioner'.]
[(6) Section 595 of title 18 of the United States Code is
amended by striking out `or Delegate or Resident Commissioner
from any Territory or Possession' and inserting in lieu thereof
`Delegate from the District of Columbia, or Resident
Commissioner'.]
[(e) Section 11(c) of the Voting Rights Act of 1965 (42
U.S.C. 1973i(c)) is amended by striking out `or Delegates or
Commissioners from the territories or possessions' and
inserting in lieu thereof `Delegate from the District of
Columbia'.]
[(f) The second sentence in the second paragraph of section
7 of the District of Columbia Alcoholic Beverage Control Act
(D.C. Code, sec. 25-107) is amended by striking out `the
presidential election' and inserting in lieu thereof `any
election'.]
* * * * * * *
DISTRICT OF COLUMBIA OFFICIAL CODE
* * * * * * *
TITLE 1--GOVERNMENT ORGANIZATION
* * * * * * *
CHAPTER 1--DISTRICT OF COLUMBIA GOVERNMENT DEVELOPMENT
* * * * * * *
Subchapter II--Statehood
* * * * * * *
PART A--CONSTITUTIONAL CONVENTION INITIATIVE
* * * * * * *
Subpart I--General
* * * * * * *
SEC. 1--123. CALL OF CONVENTION; DUTIES OF CONVENTION; ADOPTION OF
CONSTITUTION; REJECTION OF CONSTITUTION; ELECTION
OF SENATOR AND REPRESENTATIVE.
(a) * * *
* * * * * * *
(d)(1) Following the approval of a proposed constitution by
a majority of the electors voting thereon, there shall be held
an election of candidates for the [offices of Senator and
Representative] office of Senator from the new state. Such
election shall be partisan and shall be held at the next
regularly scheduled primary and general elections following
certification by the District of Columbia Board of Elections
and Ethics that the proposed constitution has been approved by
a majority of the electors voting thereon. In the event that
the proposed constitution is approved by the electors at the
general election to be held in November, 1982, the primary and
generalelections authorized by this paragraph shall be held in
September, 1990, and November, 1990, respectively.
(2) The qualifications for candidates for the [offices of
Senator and Representative] office of Senator shall conform
with the provisions of Article I of the United States
Constitution and the primary and general elections shall follow
the same electoral procedures as provided for candidates for
nonvoting Delegate of the District of Columbia in the District
of Columbia Election Code of 1955, subchapter I of Chapter 10
of this title. The term of the 1st Representative elected
pursuant to this initiative shall begin on January 2, 1991, and
shall expire on January 2, 1993. The terms of the 1st Senators
elected pursuant to this initiative shall begin on January 2,
1991, and shall expire on January 2, 1997, and January 2, 1995,
respectively. At the initial election, the candidate for
Senator receiving the highest number of votes will receive the
longer term and the candidate receiving the second highest
number of votes will receive the shorter term. A primary and a
general election to replace [a Representative or] a Senator
whose term is about to expire shall be held in September and in
November respectively, of the year preceding the year during
which the term of [the Representative or] the Senator expires.
Each [Representative shall be elected for a 2-year term and
each] Senator shall be elected for a 6-year term as prescribed
by the Constitution of the United States.
(3) The District of Columbia Board of Elections and Ethics
shall: (A) Conduct elections to fill the positions of 2 United
States Senators [and 1 United States Representative]; and
* * * * * * *
(e) A [Representative or] Senator elected pursuant to this
subchapter shall be a public official as defined in Sec. 1-
1106.02(a), and subscribe to the oath or affirmation of office
provided for in 1-604.08.
(f) A [Representative or] Senator:
(1) * * *
* * * * * * *
(g)(1) A [Representative or] Senator may solicit and
receive contributions to support the purposes and operations of
the [Representative's or] Senator's public office. A
[Representative or] Senator may accept services, monies, gifts,
endowments, donations, or bequests. A [Representative or]
Senator shall establish a District of Columbia statehood fund
in 1 or more financial institutions in the District of
Columbia. There shall be deposited in each fund any gift or
contribution in whatever form, and any monies not included in
annual Congressional appropriations. A [Representative or]
Senator is authorized to administer the [Representative's or]
Senator's respective fund in any manner the [Representative or]
Senator deems wise and prudent, provided that the
administration is lawful, in accordance with the fiduciary
responsibilities of public office, and does not impose any
financial burden on the District of Columbia.
(2) Contributions may be expended for the salary, office,
or other expenses necessary to support the purposes and
operations of the public office of a [Representative or]
Senator, however, each [Representative or] Senator shall
receive compensation no greater than the compensation of the
Chairman of the Council of the District of Columbia, as
provided in Sec. 1-204.03 and 1-611.09.
(3) Each [Representative or] Senator shall file with the
Director of Campaign Finance a quarterly report of all
contributions received and expenditures made in accordance with
paragraph (1) of this subsection. No campaign activities
related to election or re-election to the office of
[Representative or] Senator shall be conducted nor shall
expenditures for campaign literature or paraphernalia be
authorized under paragraph (1) of this subsection.
(4) The recordkeeping requirements of subchapter I of
Chapter 11 of this title, shall apply to contributions and
expenditures made under paragraph (1) of this subsection.
(5) Upon expiration of a [Representative's or] Senator's
term of office and where the [Representative or] Senator has
not been re-elected, the [Representative's or] Senator's
statehood fund, established in accordance with paragraph (1) of
this subsection, shall be dissolved and any excess funds shall
be used to retire the [Representative's or] Senator's debts for
salary, office, or other expenses necessary to support the
purposes and operation of the public office of the
[Representative or] Senator. Any remaining funds shall be
donated to an organization operating in the District of
Columbia as a not-for-profit organization within the meaning of
section 501(c) of the Internal Revenue Code of 1986, approved
October 22, 1986 (100 Stat. 2085; 26 U.S.C. 501(c)).
(h) A [Representative or] Senator elected pursuant to
subsection (d) of this section, shall be subject to recall
pursuant to Sec. 1-1001.18, during the period of the
[Representative's or] Senator's service prior to the admission
of the proposed new state into the union.
* * * * * * *
SEC. 1--125. STATEHOOD COMMISSION.
(a) The Statehood Commission shall consist of [27] 26
voting members appointed in the following manner:
(1) * * *
* * * * * * *
(5) The United States Senators shall each appoint 1
member; and
[(6) The United States Representative shall appoint 1
member; and]
[(7)] (6) The Mayor, the Chairman of the Council,
and the Councilmember whose purview the Statehood
Commission comes within shall be non-voting members of
the Commission.
(a-1)(1) Notwithstanding any other provision of law,
members serving unexpired terms on August 26, 1994, may
continue to serve until appointments or reappointments are
confirmed. Appointments or reappointments shall be made
immediately after August 26, 1994, in the following manner:
(A) * * *
* * * * * * *
[(H) The United States Representative shall appoint 1
member for a 2 year term.]
* * * * * * *
SEC. 1--127. APPROPRIATIONS.
There is authorized to be appropriated from the General
Fund of the District of Columbia an amount for the salaries and
office expenses of the elected representatives to the Senate
[and House] referred to in 1-123(d) during the period of their
service prior to the admission of the proposed new state into
the union.
* * * * * * *
PART B--HONORARIA LIMITATIONS
SEC. 1--131. APPLICATION OF HONORARIA LIMITATIONS.
Notwithstanding the provisions of 1-135, the honoraria
limitations imposed by part H of subchapter I of Chapter 11 of
this title shall apply to a Senator [or Representative] elected
pursuant to 1-123(d)(1), only if the salary ofthe Senator [or
Representative] is supported by public revenues.
* * * * * * *
PART C--CAMPAIGN FINANCE REFORM
SEC. 1--135. APPLICATION OF CAMPAIGN FINANCE REFORM AND CONFLICT OF
INTEREST ACT.
All provisions of the District of Columbia Campaign Finance
Reform and Conflict of Interest Act, subchapter I of Chapter 11
of this title, which apply to the election of and service of
the Mayor of the District of Columbia shall apply to persons
who are candidates or elected to serve as United States
Senators [and United States Representative] pursuant to this
initiative.
* * * * * * *
CHAPTER 10. ELECTIONS
* * * * * * *
Subchapter I. Regulation of Elections
SEC. 1--1001.01. ELECTION OF ELECTORS.
In the District of Columbia electors of President and Vice
President of the United States, [the Delegate to the House of
Representatives,] the Representative in the Congress, the
members of the Board of Education, the members of the Council
of the District of Columbia, the Mayor and the following
officials of political parties in the District of Columbia
shall be elected as provided in this subchapter:
(1) * * *
* * * * * * *
SEC. 1--1001.02. DEFINITIONS.
For the purposes of this subchapter:
(1) * * *
* * * * * * *
[(6) The term `Delegate' means the Delegate to the
House of Representatives from the District of
Columbia.]
* * * * * * *
(13) The term `elected official' means the Mayor, the
Chairman and members of the Council, the President and
members of the Board of Education, [the Delegate to
Congress for the District of Columbia, United States
Senator and Representative,] the Representative in the
Congress, United States Senator, and advisory
neighborhood commissioners of the District of Columbia.
* * * * * * *
SEC. 1--1001.08. QUALIFICATIONS OF CANDIDATES AND ELECTORS; NOMINATION
AND ELECTION OF [DELEGATE] REPRESENTATIVE, MAYOR,
CHAIRMAN, MEMBERS OF COUNCIL, AND MEMBERS OF BOARD
OF EDUCATION; PETITION REQUIREMENTS; ARRANGEMENT OF
BALLOT.
(a) * * *
* * * * * * *
(h)(1)(A) The [Delegate], Representative in the Congress,
Mayor, Chairman of the Council of the District of Columbia and
the 4 at-large members of the Council shall be elected by the
registered qualified electors of the District of Columbia in a
general election. Each candidate for the office of [Delegate,]
Representative in the Congress, Mayor, Chairman of the Council
of the District of Columbia, and at-large members of the
Council in any general election shall, except as otherwise
provided in subsection (j) of this section and 1-1001.10(d),
have been elected by the registered qualified electors of the
District as such candidate by the next preceding primary
election.
* * * * * * *
(i)(1) Each individual in a primary election for candidate
for the office of [Delegate,] Representative in the Congress,
Mayor, Chairman of the Council, or at-large member of the
Council shall be nominated for any such office by a petition:
(A) * * *
* * * * * * *
(j)(1) A duly qualified candidate for the office of
[Delegate,] Representative in the Congress, Mayor, Chairman of
the Council, or member of the Council, may, subject to the
provisions of this subsection, be nominated directly as such a
candidate for election for such office (including any such
election to be held to fill a vacancy). Such person shall be
nominated by petition:
(A) * * *
(B) In the case of a person who is a candidate for
the office of member of the Council (other than the
Chairman or an at-large member), signed by 500 voters
who are duly registered under 1-1001.07 in the ward
from which the candidate seeks election; and in the
case of a person who is a candidate for the office of
[Delegate,] Representative in the Congress, Mayor,
Chairman of the Council, or at-large member of the
Council, signed by duly registered voters equal in
number to 1\1/2\ per centum of the total number of
registered voters in the District, as shown by the
records of the Board as of 123 days before the date of
such election, or by 3,000 persons duly registered
under 1-1001.07, whichever is less. No signatures on
such a petition may be counted which have been made on
such petition more than 123 days before the date of
such election.
* * * * * * *
SEC. 1--1001.10. DATES FOR HOLDING ELECTIONS; VOTES CAST FOR PRESIDENT
AND VICE PRESIDENT COUNTED AS VOTES FOR
PRESIDENTIAL ELECTORS; VOTING HOURS; TIE VOTES;
FILLING VACANCY WHERE ELECTED OFFICIAL DIES,
RESIGNS, OR BECOMES UNABLE TO SERVE.
(a)(1) * * *
* * * * * * *
(3)(A) Except as otherwise provided in the case of special
elections under this subchapter or section 206(a) of the
District of Columbia Delegate Act, primary elections of each
political party for [the office of Delegate to the House of
Representatives] the office of Representative in the Congress
shall be held on the 1st Tuesday after the 2nd Monday in
September of each even-numbered year; and general elections for
such office shall be held on the Tuesday next after the 1st
Monday in November of each even-numbered year.
* * * * * * *
(d)(1) In the event that any official, other than
[Delegate,] Mayor, member of the Council, member of the Board
of Education, or winner of a primary election for the office of
[Delegate,] Mayor, or member of the Council, elected pursuant
to this subchapter dies, resigns, or becomes unable to serve
during his or her term of office leaving no person elected
pursuant to this subchapter to serve the remainder of the
unexpired term of office, the successor or successors to serve
the remainder of the term shall be chosen pursuant to the rules
of the duly authorized party committee, except that the
successor shall have the qualifications required by this
subchapter for the office.
(2) [(A) In the event that a vacancy occurs in the office
of Delegate before May 1 of the last year of the Delegate's
term of office,] In the event that a vacancy occurs in the
office of Representative in the Congress before May 1 of the
last year of the Representative's term of office, the Board
shall hold a special election to fill the unexpired term. The
special election shall be held on the first Tuesday that occurs
more than 114 days after the date on which the vacancy is
certified by the Board unless the Board determines that the
vacancy could be filled more practicably in a special election
held on the same day as the next District-wide special,
primary, or general election that is to occur within 60 days of
the date on which the special election would otherwise have
been held under the provisions of this subsection. The person
elected to fill the vacancy in the office of Delegate shall
take office the day on which the Board certifies his or her
election. [(B) In the event that a vacancy occurs in the office
of Delegate on or after May 1 of the last year of the
Delegate's term of office, the Mayor shall appoint a successor
to complete the remainder of the term of office.]
(3) In the event of a vacancy in the office of [United
States Representative or] United States Senator elected
pursuant to Sec. 1--123 and that vacancy cannot be filled
pursuant to paragraph (1) of this subsection, the Mayor shall
appoint, with the advice and consent of the Council, a
successor to complete the remainder of the term of office.
* * * * * * *
1--1001.11. RECOUNT; JUDICIAL REVIEW OF ELECTION.
(a)(1) * * *
(2) If in any election for President and Vice President of
the United States, [Delegate to the House of Representatives,]
Representative in the Congress, Mayor, Chairman of the Council,
member of the Council, President of the Board of Education, or
member of the Board of Education, the results certified by the
Board show a margin of victory for a candidate that is less
than one percent of the total votes cast for the office, the
Board shall conduct a recount. The cost of a recount conducted
pursuant to this paragraph shall not be charged to any
candidate.
* * * * * * *
1--1001.15. CANDIDACY FOR MORE THAN 1 OFFICE PROHIBITED; MULTIPLE
NOMINATIONS; CANDIDACY OF OFFICEHOLDER FOR ANOTHER
OFFICE RESTRICTED.
(a) * * *
(b) Notwithstanding the provisions of subsection (a) of
this section, a person holding the office of Mayor, [Delegate,]
Representative in the Congress, Chairman or member of the
Council, or member of the Board of Education shall, while
holding such office, be eligible as a candidate for any other
of such offices in any primary or general election. In the
event that said person is elected in a general election to the
office for which he or she is a candidate, that person shall,
within 24 hours of the date that the Board certifies said
person's election, pursuant to subsection (a)(11) of Sec. 1-
1001.05, either resign from the office that person currently
holds or shall decline to accept the office for which he or she
was a candidate. In the event that said person elects to
resign, said resignation shall be effective not later than 24
hours before the date upon which that person would assume the
office to which he or she has been elected.
* * * * * * *
1--1001.17. RECALL PROCESS.
(a) The provisions of this section shall govern the recall
of all elected officers of the District of Columbia except [the
Delegate to the Congress from the District of Columbia] the
Representative in the Congress.
* * * * * * *
VIII. Additional Views
ADDITIONAL VIEWS OF SENATORS COBURN AND STEVENS
The lack of Congressional representation for American
citizens living in the District of Columbia is a grave
injustice. However, the oath we swear upon taking office is to
uphold and defend the Constitution, not justice. Happily, the
two rarely diverge. However, our Framers wisely foresaw the
possibility of such divergence and provided a remedy. When all
constitutional options are exhausted in pursuit of justice, the
one remaining remedy is the constitutional amendment process.
We believe that there are constitutional options to remedy
the injustice faced by District residents, but S. 1257 is not
one of them. If the American people, in their wisdom, deem that
the plainly constitutional options of admitting new States into
the union, or of States voluntarily redrawing their borders are
not desirable, then the Constitutional amendment process is the
exclusive remaining remedy.
Supporters of S. 1257 claim it is constitutional, but can
only support their claim with a broad interpretation of the
text, supplemented by a handful of Supreme Court opinions. In
his letter to William Johnson of June 12, 1823, Thomas
Jefferson provided us guidance with the following: ``Laws are
made for men of ordinary understanding and should, therefore,
be construed by the ordinary rules of common sense. Their
meaning is not to be sought for in metaphysical subtleties
which may make anything mean everything or nothing at
pleasure.''
The simple rules of statutory interpretation, rather than
Jefferson's ``metaphysical subtleties,'' leave us no choice but
to conclude that the bill is unconstitutional. These rules
include first examining the plain meaning of the text of the
Constitution before relying on an interpretation of another,
and interpreting the parts that are unclear by those parts that
are clear.
We hope to demonstrate in these minority views that both an
historical and a textual analysis of the Constitution will not
support the approach taken by S. 1257. Further, we hope to
demonstrate that the approach taken by supporters of the bill
can produce at best only a tenuous constitutional foundation,
and at worst a reason for Congress to embark upon, in the words
of Professor Jonathan Turley, ``the most premeditated
unconstitutional act by Congress in decades.'' \1\ Either
conclusion should prevent Congress, bound by our oath of
office, from passing this bill.
---------------------------------------------------------------------------
\1\ Turley, Jonathan, statement for the record for the Committee on
the Judiciary, U.S. House of Representatives, ``Legislative Hearing on
H.R. 1433, the `District of Columbia House Voting Rights Act of 2007,''
March 14, 2007, pg. 4.
---------------------------------------------------------------------------
HISTORICAL ANALYSIS
In looking at history, it is clear that representation in
government is at the heart of the American identity and that
voting is one of the nation's most sacred rights. It is
puzzling, then, why the Framers of the Constitution didn't
choose to be more explicit regarding whether voting rights were
intended for the residents of the District of Columbia. Yet,
though the Constitution isn't as clear as some might want it to
be, the Framers were not silent on the issue and have left us
with sufficient evidence to conclude that this bill is
unconstitutional.
Claim: The Federal District was not designed to be different than a
State
Supporters of the bill argue that the Framers, with the
ideals of the Revolutionary War fresh on their minds, obviously
intended to provide residents of the District full voting
rights like other citizens. Its omission, they claim, was
simply an oversight of the Constitutional Convention. But, a
closer look at the circumstances surrounding the creation of
the federal district plainly refutes this claim.
The idea of an independent federal district is said to have
arisen in 1783 after an incident involving the Continental
Congress in Philadelphia, and a mob of disgruntled soldiers.\2\
The soldiers claimed they had gone unpaid and, under threat of
violence, forced Congress to meet and address their grievance.
Congress sought protection from the Pennsylvania state militia,
but was denied. Left without any protection, Congress convened
under duress and addressed the matter. Realizing that the
situation could happen again, the Framers recognized that the
seat of government should not be dependent on the good graces
and protection of any one State.
---------------------------------------------------------------------------
\2\ Footnote 1, Congressional Research Service Report for Congress
RL 33830, District of Columbia Voting Representation in Congress: An
Analysis of Legislative Proposals, April 23, 2007, pg. CRS-1.
---------------------------------------------------------------------------
Though the notion of protecting the federal government from
the States is in many ways outdated and in modern times
reversed, the Framers were concerned about preserving the
government's independence. To ensure its independence, they not
only carved out land for the District that was not located in
any State, but designed it to be governed equally by all States
through Congress. Additionally, the Framers wanted to protect
the States from any unnecessary burdens. For example, housing
the District within any single state would have, on the one
hand, put a large financial burden on that state to maintain
the capital, while on the other hand would have unfairly given
that state the benefits of capital improvements paid for by the
other States. The decision was eventually made to cede land
from Maryland and Virginia to form a small district of ten
square miles to ensure that the land belonged to no state.\3\
---------------------------------------------------------------------------
\3\ Congress passed the Residence Act on July 16, 1790, during the
First Congress, second session. Text of the act can be found here:
http://memory.loc.gov/cgi-bin/ampage?collId-llsl-
&fileNamellsl001.db&rec.Num-253
---------------------------------------------------------------------------
James Madison reinforced this point on January 23, 1788, in
writing Federalist no. 43 on the topic of a federal district:
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, not only the public
authority might be insulted and its proceedings
interrupted with impunity; but a dependence of the
members of the general government on the State
comprehending the seat of the government, for
protection in the exercise of their duty, might bring
on the national councils an imputation of awe or
influence, equally dishonorable to the government and
dissatisfactory to the other members of the
Confederacy. This consideration has the more weight, as
the gradual accumulation of public improvements at the
stationary residence of the government would be both
too great a public pledge to be left in the hands of a
single State, and would create so many obstacles to a
removal of the government, as still further to abridge
its necessary independence. The extent of this federal
district is sufficiently circumscribed to satisfy every
jealousy of an opposite nature.
While this would answer the question of independence for
the nation's capital, it raised another question of what to do
with the residents of Maryland and Virginia living in the land
to be ceded to create the new federal district. These citizens
had full voting rights as citizens of Maryland and Virginia,
but those rights would be relinquished under the new plan.
Claim: The Founders forgot to address congressional representation for
district residents
Supporters of S. 1257 today claim that the Framers
inadvertently forgot to address congressional representation
for these citizens because there were other pressing issues to
consider at the time. Further still, the Constitution was a
relatively new document and all of its implications were not
yet well understood, particularly the issue of representation
for citizens living in the newly formed federal district.
Therefore, they believe that the Framers did not feel a
pressing need to consider the question, but that if they had
they certainly never intended to exclude residents from voting.
The historical record, however, refutes this claim. In
fact, there is solid evidence that the Framers had given this
issue more than just a passing glance. Following the passage of
the Residence Act in 1790, which designated the future site of
Washington, D.C., residents of those areas retained their right
to vote for representatives in Congress, but they were simply
not allowed to vote as district residents. The Framers
approached the issue by deferring to the State-based structure
of the Union and allowed each former resident of Maryland and
Virginia to vote in their home state. This was no small
technicality; they believed it was the only acceptable means to
allow these residents to vote in a manner consistent with the
Constitution.
Madison hints at this in a further reading of Federalist
no. 43, by assuming that the state governments in Maryland and
Virginia would make adequate provision for their residents
living in those lands, including the matter of representation.
And as [the land to create a federal district] is to
be appropriated to this use with the consent of the
State ceding it; as the State will no doubt provide in
the compact for the rights and the consent of the
citizensinhabiting it; as the inhabitants will find
sufficient inducements of interest to become willing parties to the
cession; as they will have had their voice in the election of the
government which is to exercise authority over them; as a municipal
legislature for local purposes, derived from their own suffrages, will
of course be allowed them; and as the authority of the legislature of
the State, and of the inhabitants of the ceded part of it, to concur in
the cession, will be derived from the whole people of the State in
their adoption of the Constitution, every imaginable objection seems to
be obviated.
This voting system changed with the passage of the Organic
Act in 1801, which provided for governance of the federal
district. Because the bill did not specifically address voting
rights for district residents, it effectively nullified the
previous arrangement. That voting rights weren't immediately
restored to district residents after the passage of the Organic
Act through other legislation is significant. It demonstrates
that such rights were not automatically granted to district
residents by the Constitution and that Congress would not or
could not act legislatively in this area.
Although some may point to this example and claim that if
district residents were taken away by legislation (Organic Act)
then voting rights can be given through legislation today. The
flaw in this argument is that it fails to see the decidedly
state-centered way in which the Framers handled the matter in
contrast to the means being considered by S. 1257. The prior
arrangement only allowed district residents to vote when they
were still considered residents of their former home states.
Above all else, what this example clearly shows is that these
issues were in the minds of the Framers when they drafted the
Constitution and were not, as some claim, an afterthought.
Claim: No one anticipated the district becoming a large city with many
citizens
Another dubious claim made by supporters of S. 1257 is that
hardly anyone, including the Framers themselves, anticipated
the federal district becoming a large city home to large
numbers of citizens seeking the right to vote. After all, there
were barely 8,000 citizens living in the District at the time
of its inception. They believe that if the Framers knew that
larger numbers of people would be impacted by the creation of
the District, then voting rights would have been granted. This
point is easily refuted by looking at the original plan for the
city, as commissioned by the federal government itself. As
early as 1791, nine years before the federal government began
its operations in Washington, D.C., Pierre-Charles L'Enfant
completed a commission by President George Washington to design
the city, and his design was anything but small. L'Enfant's
design envisioned the federal district to be a large, thriving
city with as many as 800,000 residents \4\--a size that is not
matched today.\5\ Even a cursory glance at L'Enfant's earliest
plans show that the intended design for the federal district is
largely similar to today's design.\6\
---------------------------------------------------------------------------
\4\ Library of Congress sources, http://memory.loc.gov/ammem/today/
jul16.html
\5\ Statistics provided by the U.S. Census Bureau, and can be found
online at: http://quickfacts.census.gov/qfd/states/11000.html
\6\ A picture of L'Enfant's design for the City of Washington can
be seen on the website of the Library of Congress, and can be found
here: http://www.loc.gov/exhibits/us.capitol/twtynine.jpg
---------------------------------------------------------------------------
Furthermore, the following journal entry was written by
Henry Wansey in 1794, only three years after L'Enfant's plans
for the district were finalized. This first-hand account
clearly shows that the expectation existed even then that the
city of Washington would become a great city.
[A friend] has often been to the new federal city of
Washington; has no doubt it must be very considerable
in a few years, if the government is not overturned,
for nothing less can prevent it. Mercantile men will
principally settle in the South-East corner on the East
River. . . . The government will make it a principal
object to improve this place, and all its regulations
respecting its future grandeur are already planned,
suitable to a great and growing empire. . . . Many
houses are already built, and a very handsome hotel,
which cost in the erection more than thirty thousand
dollars . . . It is now apportioned into one thousand
two hundred and thirty-six lots, for building, (which
are for sale). Each lot contains ground for building
three or four houses.\7\
---------------------------------------------------------------------------
\7\ This excerpt was taken from the ``Journal of an Excursion to
the United States of North America in the Summer of 1794,'' by Henry
Wansey. It was reprinted in pg. 10. Text of the book can also be found
at: http://memory.loc.gov/cgi-bin/ampage?collId=lhbcb&fileName=03201.//
1hbcb03201.db&recNum=9&itemLink=r?ammem/
lhbcbbib:@field(NUMBER+@od1(1hbcb+03201))&linkText=0
It stretches the bounds of one's imagination, in light of
this evidence, to assume that the Framers and the Congress
simply forgot to consider the voting rights of citizens in a
city as large as the District would become. Even if they had,
it was not long before citizens of the District began seeking
such rights, reminding them of their ``mistake.'' In 1801,
following the passage of the Organic Act, a group of District
residents petitioned Congress for the right to vote. Tellingly,
though, voting rights were not given to residents of the
District, despite the fact that the Congress of that time was
made up of many Framers of the Constitution. That residents
were denied representation then does not necessarily mean they
should be so denied today. However, this record does provide
strong evidence that the Framers intended, whatever their
reasons, that the District's residents would not have the same
automatic rights to Congressional representation as residents
of the several States.
Claim: The Framers did not intentionally exclude residents from voting
for congressional representation
Supporters of S. 1257 believe, despite the fact that
District residents were never given congressional
representation, that these rights were not withheld on purpose.
This claim is contradicted by examining the opinion of a
prominent Framer soon after the Constitution's ratification.
Supreme Court Chief Justice John Marshall, former commander in
the Revolutionary War, said the following in 1820 indicating
strongly that voting rights were far from an after-thought:
``[The District has] relinquished the right of
representation, and has adopted the whole body of
Congress for its legitimate government. Although in
theory it might be more congenial to the spirit of our
institutions to admit a representative from the
district, certainly the Constitution does not consider
their want of a representative in Congress as exempting
it from equal taxation.'' \8\
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\8\ Adams v. Clinton, 90 F. Supp. 2d 35, 55 (D.D.C.), aff'd, 531
U.S. 940 (2000) citing to Chief Justice Marshall's opinion in
Loughborough v. Blake 18 U.S. (5 Wheat.) 317 (1820). Interestingly
enough, the supporters of S. 1257 repeatedly cite to Loughborough as a
case that supports their position since the Supreme Court ultimately
did uphold federal taxation of District residents in the case.
Clearly, Chief Justice Marshall, like us today, was
uncomfortable with the distinct divergence in this case between
justice and the Constitution, but barring a Constitutional
amendment, he considered himself bound to the Constitution,
whatever its perceived flaws. Prior to his appointment on the
Supreme Court, William Rehnquist confirmed Marshall's opinion
that the District did not have a legislative option for
obtaining a vote, despite his own personal opinion that
district residents should be given representation in Congress.
Serving then as an assistant Attorney General in the U.S.
Department of Justice in 1970, Rehnquist said: ``The need for
an amendment [providing representation for the District] at
this late date in our history is too self-evident for further
elaboration; continued denial of voting representation from the
District of Columbia can no longer be justified.'' \9\
---------------------------------------------------------------------------
\9\ See the website of DC Vote at: http://www.dcvote.org/pdfs/
congress/dcvrarepublicanquotespdf.pdf
---------------------------------------------------------------------------
Claim: Congress has always had the constitutional power to address this
matter through legislation
The historical record of those who have previously
attempted to address voting rights for the District itself
testifies that nothing less than a change in the Constitution
would be necessary. Since 1888, no fewer than 150
constitutional amendments have been attempted to resolve the
matter.\10\ Had a legislative option been available under the
Constitution, surely a serious attempt would have been made
prior to today to pass such a bill in Congress rather than go
through the arduous task of passing a constitutional
amendment--yet the supporters behind each of these efforts knew
that it was an amendment, not a bill, that should be attempted.
---------------------------------------------------------------------------
\10\ Footnote 1, Congressional Research Service Report for Congress
RL33830, District of Columbia Voting Representation in Congress: An
Analysis of Legislative Proposals, April 23, 2007, pg. CRS-3.
---------------------------------------------------------------------------
Of those in Congress that did try to address the matter,
the issue primarily revolved around allowing the election of a
non-voting delegate to Congress.\11\ No attempt has been made
prior to S. 1257 to try and provide House representation
through the legislative process. It is significant that until
the consideration of S. 1257 by the 110th Congress that all
previous Congresses, without exception, understood that the
Constitution prevented them from passing such a bill.\12\
---------------------------------------------------------------------------
\11\ The following points were outlined by Richard P. Bress in
responses to questions for the records in Ending Taxation Without
Representation: The Constitutionality of S. 1257: Hearing on S. 1257
Before the S. Comm. on the Judiciary, 110th Cong. *29 (2007). Mr. Bress
identified the previous attempts by Congress to address the matter of
congressional voting rights for the District of Columbia and
categorized them in one of two ways: (1) legislation to examine the
notion of voting rights for residents, and (2) allowing for a non-
voting delegate. Such attempts were made: Dec. 30, 1819, Rep. Kent
(MD); March 20, 1819, Sen. Johnson (KY); Feb. 13, 1824, Rep. Ross (OH);
April 26, 1830, Rep. Powers; Dec. 21, 1831, Rep. Carson (NC); March 9,
1836; March 28, 1838, Sen Norvell (MI); January 28, 1845. No such
attempts were made to legislatively expand the House of Representatives
and provide for full voting representation for residents of the federal
district.
\12\ This point is made in full recognition of the fact that
legislation was introduced in recent Congresses to address the matter
of congressional representation through either (1) retrocession, (2)
semi-retrocession, or (3) granting full membership to the House of
Representatives. None of this legislation passed the Congress or was
presented to the President for signature. Such legislation included in
the 109th Congress: H.R. 190, H.R. 398, H.R. 5388, S. 195; in the 108th
Congress: H.R. 1285, H.R. 3709, S. 617; and in the 107th: S. 3054.
---------------------------------------------------------------------------
The 150 constitutional amendment attempts have taken
various forms and each one has failed to pass, with the
exception of what became the 23rd Amendment. The 23rd Amendment
provides District residents with the right to vote in
Presidential elections. Other amendment attempts would have
provided the District with one member of the House of
Representatives and two Senators, while still others would have
allowed for some combination of voting for the President as
well as for representation in the House of Representatives and
the Senate.
While the merits of those proposals are not the subject of
this discussion, they were seen to have failed by many because
of their implications for Statehood for the federal district.
No serious attempt has ever been made to pass a Constitutional
amendment providing simply for representation in the House of
Representatives. Until this is attempted, there is no
historical evidence to demonstrate how such an amendment might
fare. That the amendment process is difficult, though, does not
grant Congress the luxury of circumventing the Constitutional
process for the sake of political expediency.
Conclusion: The historical record demonstrates that S. 1257 is
unconstitutional
The historical record is far from silent on the matter of
congressional voting rights for residents of the federal
district. In our view, the weight of evidence supports the
notion that the original intent of the Framers, as well as the
interpretation of 109 consecutive Congresses, was to preclude
the residents of the District from being represented in the
House of Representatives. Though the Framers believed at the
time that such an arrangement did not run counter to our
republican form of government, we have now come to believe
differently.
It is our view that though the reasons for creating a
federal enclave without explicitly-provided voting rights for
its residents may have seemed reasonable at the time, the
reasons no longer hold the same appeal. And though it may be
past time to alter the House of Representatives and allow a
vote for the District in the House, Congress is constrained to
act only in a Constitutional manner. We do not believe this to
be the case with the approach taken by S. 1257.
CONSTITUTIONAL ANALYSIS
Textual analysis
As stated earlier, any effort to analyze the meaning of a
specific constitutional provision must begin with the text
itself. Supporters of the bill assert that the best place to
begin this discussion is with the Federal Enclave Clause, at
Article I, Section 8, Clause 17. However, since the bill's main
effect is to change the composition of the House of
Representatives, the proper place to begin is with the House
Composition Clause found at Article I, Section 2:
Section 2. 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.
It is clear that the term ``state'' is used numerous times
in this provision, as it is throughout the Constitution. It is
also clear from the records of the Framers during the
Constitutional Convention that they chose their words carefully
when drafting the text. Nowhere does the context suggest that
the term ``state'' could be interpreted to mean anything other
than what it straightforwardly implies. Since the federal
district is not a state, the plain reading of the text clearly
precludes the District of Columbia from being considered a
state for the purposes of choosing members for the House of
Representatives.
A basic rule of statutory interpretation is that when a
reader is interpreting a statute, or in this case the
Constitution, the statute should be read with the plainest
reading in context; if no ambiguity appears, the search into
the meaning of the word is complete. As the U.S. Supreme Court
stated, ``When the words of a statute are unambiguous, then,
this first canon is also the last: `judicial inquiry is
complete.' ``Connecticut Nat'l Bank v. Germain, 503 U.S. 249,
254 (1992). In the absence of any ambiguity in the term
``state'' in Article I, Section 2, Congress should not look to
other places, such as the history of the District or in the
Federal Enclave Clause, to attempt to justify the
constitutionality of S. 1257.
Some supporters of this legislation argue that because the
Founders placed such a premium on direct voting for
representation as well as on government powers being derived
from the consent of the governed, the Founders could not have
possibly meant to exclude district residents from congressional
representation simply because the District is not a state.
However, they have no evidence in the text of the Constitution
to suggest the Framers intended to treat the District like a
state under Article I, Section 2. In fact, the evidence points
in the opposite direction. A Representative of the District
would not even meet the qualifications set out in Article I,
Section 2, the Qualifications Clause:
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. (Emphasis added)
Supporters of S. 1257 misguidedly draw support for their
position from certain U.S. Supreme Court and other federal
court cases that extend to the District, as an entity or its
citizens, other rights found in the Constitution. Nevertheless,
supporters of the bill cannot refute the fact that the text of
Article I, Section 2, leaves no open door to treat the District
as a state for House representation short of actual statehood
or Constitutional amendment.
In fact, the provision of the Constitution that supporters
rely on most, the Federal Enclave Clause, directly contradicts
any notion that the federal district should be considered a
state for purposes of House representation.
The Federal Enclave Clause in Article I, Section 8, Clause
17 states Congress' rights regarding the federal district:
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, and to exercise like
authority over all places purchased by the consent of
the legislature of the state in which the same shall
be, for the erection of forts, magazines, arsenals,
dockyards, and other needful buildings. (Emphasis
added).
The Federal Enclave Clause itself shows that the District
is different than ``states'' in the Constitution. By using both
the term ``District'' and ``states'' in the same sentence, the
language shows most clearly that the Framers had two distinct
concepts in mind regarding what was a state and what was the
District. To construe this provision to define the word
``state'' in such a way as to include the federal district is
to render the words meaningless.
Finally, supporters of S. 1257 wrongly believe that
Congress' complete power over the District gives Congress the
power to alter even the makeup of the House of Representatives.
In so doing, they create the perverse problem by which one
provision of the Constitution is used to cancel out the meaning
of another provision. In other words, supporters have
interpreted Congress' constitutional powers over the District
to be so broad that they can use them even to overcome that
provision which explains the makeup of the House of
Representatives.
The text of the Federal Enclave Clause states that Congress
has ``exclusive'' power ``in all cases whatsoever, over such
District.'' Nothing in the phrase ``over such District'' or the
related context allows an interpretation in which Congress
could change the makeup of Congress. Quite the opposite as the
text grants to Congress a custodial and operational power of
control over the District. Thus, the plain reading of this
provision demonstrates that Congress' power within the District
itself is nearly unlimited, but that power does not extend
beyong the District's borders. In fact, if the power given to
Congress in this provision is as broad as supporters of S. 1257
claim it is, there would be no limits to how Congress could use
this power. Nothing could stop Congress from adding additional
seats to the House for the District as well as representatives
in the Senate.
The full context of the Federal Enclave Clause shows that
the power granted to Congress over the District is the exact
same power as that granted to Congress to erect ``forts,
magazines, etc.'' Thus, the supporters of S. 1257 are forced to
argue that the power of Congress to purchase land for the
military is the exact same broad, sweeping and ``plenary''
power to grant membership in the House of Representatives.
Therefore, in light of this context, these provisions merely
grant Congress control over operational matters related to the
governance, both administrative and political, of the District
just as it is for forts, needful buildings and arsenals. One
would need to stretch the rules of interpretation beyond reason
to interpret this provision in such a way as to grant Congress
power to alter other more plainly drafted sections of the
Constitution such as those that determine membership in the
House of Representatives and the qualifications of its members.
The 23rd amendment
Passage of the 23rd Amendment to the Constitution is
illustrative of why S. 1257 falls short of the Constitution.
Before its passage in 1960, and subsequent ratification,
District residents could not vote in Presidential elections by
virtue of the fact that the District is not a state. Congress
remedied this situation not through legislation, but rather by
amending the Constitution.
The 23rd Amendment reads:
Section 1. The District constituting the seat of
government of the United States shall appoint in such
manner as the Congress may direct: A number of electors
of President and Vice President equal to the whole
number of Senators and Representatives in Congress to
which the District would be entitled if it were a
state, but in no event more than the least populous
state; they shall be in addition to those appointed by
the states, but they shall be considered, for the
purposes of the election of President and Vice
President, to be electors appointed by a state; and
they shall meet in the District and perform such duties
as provided by the twelfth article of amendment.
Section 2. The Congress shall have power to enforce
this article by appropriate legislation. (Emphasis
added)
The language clearly establishes that D.C. is not a state
and that its electors are only for Presidential elections. The
House Report accompanying the passage of the Amendmentin 1960
clearly states that the Amendment would not change the status or powers
of the District:
[This] . . . amendment would change the Constitution
only to the minimum extent necessary to give the
District appropriate participation in national
elections. It would not make the District of Columbia a
State. It would not give the District of Columbia any
other attributes of a State or change the
constitutional powers of the Congress to legislate with
respect to the District of Columbia and to prescribe
its form of government. . . . It would, however,
perpetuate recognition of the unique status of the
District as the seat of Federal Government under the
exclusive legislative control of Congress. \13\
(Emphasis added.)
\13\ Report of the U.S. House of Representatives, 86th Congress, 2d
Session, May 31, 1960, p.3.
---------------------------------------------------------------------------
The House Report recognizes two important points. First,
the District is not a state and the 23rd Amendment does nothing
to make it a state. Second, the House Report affirms the
understanding that Congress' power in the District Clause is
one of operational control.
The example of the 23rd Amendment illustrates clearly that
when Congress wanted to give residents of the federal district
the right to vote for the President, they didn't see fit to do
so through legislation. They knew then what is still true
today--that such rights can only be conferred on citizens
through a change in the Constitution through the amendment
process.
Legal analysis
Supporters of S. 1257 also stake their claim for the bill's
constitutionality on a selection of U.S. Supreme Court and
federal court cases in which Congress has treated the federal
district's residents the same as residents of states. Examples
include imposing federal taxation on D.C. residents, allowing
diversity jurisdiction to apply to D.C. residents, giving D.C.
residents rights to trial by jury and subjecting D.C. to the
interstate commerce regulations. Federal courts have allowed
Congress to treat D.C. as if it were a state in each instance
in order to uphold the Congressional action. Proponents believe
that based on this line of cases, future courts will hold that
granting House representation to D.C. is also a legitimate act
of Congress' power under the Federal Enclaves Clause. However,
there is no direct legal precedent for S. 1257, thus it will be
a case of first impression for federal courts to review.
In fact, the case law may point in the opposite direction,
as in Adams v. Clinton. \14\ In 2000, the federal District
Court of the District of Columbia ruled that D.C. residents
suffered no Constitutional harm when the District of Columbia
was excluded from the apportionment of Congressional districts
for House representation. Lois Adams and other District
citizens brought their case against President Clinton and the
Secretary of Commerce because the Administration did not
include D.C. when they transmitted their post-census
apportionment results to the House Clerk. The District Court,
sitting as a special three-judge trial panel, rejected Adams'
claim 2-1 holding that the District could not be treated as a
state for purpose of House apportionment and that denial of
House representation was not a violation of the Equal
Protection or Republican form of Government Guarantee clauses.
\15\ The U.S. Supreme Court affirmed the holding without an
opinion, demonstrating that the Constitution does not provide
representation in Congress for residents of the District.
---------------------------------------------------------------------------
\14\ Adams v. Clinton, 90 F. Supp. 2d 35 (D.D.C.), aff'd, 531 U.S.
940 (2000).
\15\ Id at p. 66-69, and 71-72.
---------------------------------------------------------------------------
The Adams opinion reveals that the understanding of those
at the time that District residents would lose their right to
vote once Virginia and Maryland ceded their lands. This would
be for no other reason than that they no longer lived in a
state. One Congressman, Rep. Bird, remarked that the blame for
D.C. residents losing their voting rights was not ``to the men
who made the act of cession, not to those who accepted it,''
but ``to the men who framed the Constitutional provision, who
peculiarly set apart this as a District'' under the federal
government. \16\
---------------------------------------------------------------------------
\16\ Id at p. 52.
---------------------------------------------------------------------------
In fact, one of the early proponents of D.C. voting rights
advocated the same position. The Adams opinion recounts that
Augustus Woodward, a prominent lawyer in the District and
protege' of Thomas Jefferson, wrote in 1801 decrying the
violation of ``an original principle of republicanism'' by
passage of the Organic Act. He later said that passage of a
Constitutional amendment was ``the exclusive and only remedy.''
\17\
---------------------------------------------------------------------------
\17\ Id at p. 53.
---------------------------------------------------------------------------
The Adams opinion likewise debunked the notion that
Congress actively stripped District residents of their right to
vote when it passed the Organic Act, officially creating the
District. The Adams opinion dismissed such theory finding that:
Thus, it was not the Organic Act or any other
cession-related legislation that excluded District
residents from the franchise, something we agree could
not have been done by legislation alone. \18\ (Emphasis
added, citing a previous Supreme Court case holding
that an individual's Constitutionally protected right
to vote could not be denied by a vote of the state
legislature.)
---------------------------------------------------------------------------
\18\ Id at p. 62.
Instead the Adams opinion concludes that the loss of voting
rights for District residents came because their residency
status had changed from a resident of a ``state'' to resident
of the District. The citizens were now residents a non-state,
---------------------------------------------------------------------------
and therefore prevented from representation in Congress.
Rather, exclusion was the consequence of the
completion of the cession transaction-which transformed
the territory from being part of a state, whose
residents were entitled to vote under Article I, to
being part of the seat of government, whose residents
were not. Although Congress exercise of jurisdiction
over the District through passage of the Organic Act
was the last step in that process, it was a step
expressly contemplated by the Constitution.\19\
---------------------------------------------------------------------------
\19\ Id.
Thus, the Adams opinion points back to the plain meaning of
Article I, Section 2, as the determinative Constitutional
provision for considering D.C. voting rights in Congress. until
D.C. residents achieve status of residents of a state or until
the Constitution is amended, the residents are barred from
Congressional representation by the very language of the
Constitution itself.
Conclusion
Because the Constitution clearly designed the House of
Representatives to be composed of representatives of States, we
believe that S. 1257 is not constitutional. Unfortunately, this
leaves us with no other option but to oppose the bill and file
these dissenting views. There is no question, though, that the
objectives of S. 1257 are noble and worthy of Congressional
attention, if not prompt action. However, Congress must resist
the temptation to achieve a worthy policy objective by
illegitimate means. This is especially true in this case due to
the ready availability of better, and more clearly
constitutional means, namely amending the Constitution.
In closing, we relay this commentary provided to this
Committee by Professor Jonathan Turley when testifying
regarding this issue:
In his famous commentaries on the Constitution,
Justice Story warned against the use of the
interpretation to avoid unpopular limitations in our
constitutional system:
The constitution of the United States is to receive a
reasonable interpretation of its language, and its
powers, keeping in view the objects and purposes, for
which these powers were conferred. By a reasonable
interpretation, we mean, that in case the words are
susceptible of two different senses, the one strict,
the other more enlarged, that should be adopted, which
is most consonant with the apparent objects and intent
of the constitution. . . . On the other hand, a rule of
equal importance is, not to enlarge the construction of
a given power beyond the fair scope of its terms,
merely because the restriction is inconvenient,
impolitic, or even mischievous. If it be mischievous,
the power of redressing the evil lies with the people
by an exercise of the power of amendment.''\20\
---------------------------------------------------------------------------
\20\ Testimony of Professor Jonathan Turley before the U.S. Senate
Judiciary Committee hearing on ``Ending Taxation without
Representation: The Constitutionality of S. 1257'' May 16, 2007, p. 13-
14 citing Joseph Story, Commentaries on the Constitution of the United
States Sec. Sec. 419-26, at 298-302 (2d ed. 1851).
Tom Coburn.
Ted Stevens.