Dc Voting Rights Act Is Unconstitutional

Even if the stalemate can be overcome, however, a problem that ought to matter will remain: the bill as written is almost certainly unconstitutional.

Proponents of a voting representative for the District usually couch their argument in vague notions of injustice - that it is simply unjust to deny the residents of the District any voting representation in Congress. It is not necessary to take issue with this assertion. The relevant matter, however, is the proposed remedy for this problem. Congress’ current wish to avoid the express restrictions of the Constitution demonstrates, using Alexis de Tocqueville’s term, a “disdain for forms” or a disdain for constitutional provisions that seem to be getting in the way of Democrats’ objective. Ignoring the Constitution is simply not the right approach. The integrity of the Constitution must prevail over general feelings of injustice.

Article I, Section 2 of the Constitution expressly states that “[t]he House of Representatives shall be composed of members chosen every second year by the people of the several states.” By way of clarification, the 23^rd amendment (ratified by the states on March 29, 1961) grants the District of Columbia electors in the presidential elections which “shall be in addition to those appointed by the states.” The drafters of this amendment, in granting citizens of the District a role in presidential selection, expressly reasserted that the District was not a state – thus openly acknowledging that the District is not qualified to receive benefits generally granted to states. Although in a number of ways over the years, the District of Columbia has come to be treated as a state, certain key differences remain between the District’s special status and statehood. In Hepburn v. Ellzey (1804) the U.S. Supreme Court determined that the District did not qualify as a state for the purposes of achieving standing in a federal court under Article III’s “diversity jurisdiction” provision. This decision was ultimately overruled in National Mutual Ins. Co. v. Tidewater Transfer Co. (1949) when the Court allowed a 1940 statute granting courts “jurisdictions if the action is ‘between citizens of different states, or citizens of the District of Columbia, the Territory of Hawaii, or Alaska, and any State or Territory” to stand. However, the Court’s majority opinion in Tidewater was delivered with an important caveat: the Court expressly stated that it was not redefining the word “state” as used by the Constitution since the Founders had carefully considered the status to be given to the seat of government – the District of Columbia. Rather, the Court determined that there is “much to indicate that it [the District] would have required special provisions to fit its anomalous relationship into the new judicial system, just as it did to fit into the new political system.” Furthermore, Justice Jackson noted in his Tidewater opinion, that the District of Columbia “certainly was not taken into the Union of states…nor has it since been admitted as a new state is required to be admitted” and thus could not enjoy the benefits of statehood.

Very powerfully, proponents of a voting representative for the District have also relied upon the phrase that resonates with revolutionary fervor and is emblazoned on the license plates issued by the District: “Taxation Without Representation.” However, the Supreme Court has determined that, despite the appeal of this compelling phrase and the concept behind it, Congress in fact has the power to tax residents of the District of Columbia despite the absence of any voting representative from the District. In Heald v. District of Columbia (1922), the Supreme Court upheld Congress’ power to tax District residents who lacked Congressional representation. In the Court’s majority opinion, Justice Brandeis wrote, “[t]here is no constitutional provision which so limits the power of Congress that taxes can be imposed only upon those who have political representation.” Referring to past Supreme Court precedents, Brandeis added, “the cases are many in which laws levying taxes for the support of the government of the District have been enforced during the period in which its residents have been without the right of suffrage.” Thus, the D.C. Voting Rights Act’s attempt to grant D.C. voting representation in Congress on the basis of this principle is clearly misguided and contrary to the Supreme Court’s decision.

In conformity with one of the constitutionally-sanctioned methods of granting the District of Columbia voting representatives in Congress, there have been various efforts to make D.C. the fifty-first state of the Union. Under Article IV, Section 3 of the Constitution, only Congress can create new states. But, importantly, in order to accept the District of Columbia as the state of “New Columbia,” Congress and the states would have to repeal the 23^rd Amendment. The 23^rd Amendment provides for treatment of D.C. during presidential elections as if it were a state, granting D.C. in the capacity of “constituting the seat of Government” three electors, which “shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state,” even though D.C. is not actually a state. Were D.C. to become a state, the new “seat of government” – which would likely constitute a smaller, mostly nonresidential section within the current area of the District of Columbia – would receive disproportionate representation in presidential elections via the three electoral votes provided by the 23^rd Amendment.

These statehood efforts – even though they have resulted in some degree of autonomy for the District government, notably with the passage of the “District of Columbia Home Rule Act” (Public Law 93-198) on December 24, 1973 – have been unable to achieve the ultimate objective of statehood through sanctioned constitutional means. It is important to note that every effort to adopt a constitutional amendment to allow for D.C. voting (and effectively repeal the 23^rd Amendment), has failed to obtain the necessary votes of the states.

An alternative approach to granting District residents voting representation in Congress would be to retrocede the District to Maryland. In 1847, Congress gave part of the District back to Virginia and it is within Congress’ power to return land to Maryland, but the political reality is that Maryland does not appear to want the District back and has forcefully made its position known.

Thus, having exhausted all constitutionally-sanctioned methods, proponents of a voting representative for the District have now sought to resort to a solution which is simply unconstitutional. In order to achieve representation, the District of Columbia must either become a state or be incorporated into a state, or Congress must amend the Constitution and create special rights for the District of Columbia. The D.C. Voting Rights Bill, however, represents an effort by a Congressional majority to legislate voting rights for the District of Columbia without the requisite two-thirds House and Senate approval and the consent of three quarters of the states – essentially doing so through action that can only be characterized as an illegal expansion of Congressional authority.

Should the House succeed in removing the amendment reversing D.C.’s restrictions and ultimately in passing the bill, it would be an assault on the Constitution and the legal framework that has been developed in the United States over centuries.