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Giving The District a Vote

March 23rd, 2007

The Washington Post reports today that efforts to grant the District of Columbia an actual, factual, vote in the House of Representatives was derailed by a poisin pill amendment, offered by Rep. Lamar Smith (R-Tex.), overriding the District’s strict anti-gun laws. Very clever on the Republican’s part in one of two ways. Either it puts Democrats from conservative districts in a tough spot (voting against gun freedom), or, it forces the Democratic Leadership to bring the bill up for consideration under a closed rule, thus reversing on a pledge to run the House in a more open manner.

House procedural maneuvering aside, none of this may matter as the President has said he will veto the bill should it reach his desk. He, or at least his advisors, believe the law is unconstitutional. The first clause of Article I, Section 2 of the Constution reads:

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.

Which supports the President’s claim… states get representatives, not districts. It’s worth noting that the President also stated the the McCain-Feingold Bipartisan Campaign Finance Reform Act was unconstitutional, and yet is bears his signature.

Of course, the Democrats have their own legal argument. They point to Article I, Section 8, Clause 17 (the Enclave Clause), which says:

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, dock-Yards, and other needful Buildings

This clause has been read to mean the Congress can do pretty much whatever it wants within the confines of the District (makes me a little sad for the residents of DC… would you want Congress to effectively be your city council and state legislature all at the same time?).

Unfortunately, I have to side with the Republicans on this one, at least as far as the legal argument goes. There are two problems with using the enclave clause. First, it makes no meaningful distinction between the District of Columbia and military bases. Both are governed under the same clause and Congress may legislate with equal force. Which means if the District can be granted representation under the enclave clause then so can all of the military bases around the country.

Second, and for me more powerful, is the 23rd Amendment, which grants the District representation in the electoral college as if it were a state (with the minor provision that they can never get more votes than the smallest state, so they are pretty much stuck at three votes). If the Democrats were right about the enclave clause, this amendment would never have been necessary, Congress could have simply granted the District electoral representation by legislative action. Instead they went to all the trouble of assembling 2/3rds of the House and the Senate and a majority in 3/4ths of all the state legislatures.

Given this precedence, it is hard to argue that legislation, even if well intended, can alter the voting rights clearly outlined by the Constition. There have been efforts to grant the District either statehood or full voting rights under another constitutional amendment akin to the 23rd. The statehood route poses many complications (for example, could the new state pass a law ousting the national government?) and is not really consistent with the founders vision of a national capital free from state intervention. The full voting rights option, on the other hand, is pretty straightforward. The key obstacle is history–it’s been tried before and failed–and partisan positioning–Republicans won’t vote to grant representation to a Democratic stronghold unless they get the same in return.

But perhaps both can be overcome is sufficient political will. If the voting rights folks can frame the issue correctly, show how the Republicans are preventing a giant city from participating in self-governance, focus on representation in the House by dropping the demand for Senators, and then really push the issue when it goes out into the states, then maybe they have a chance. As for the current effort, I sincerely doubt it.

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