D.C. voting rights, still a faraway goal

Politico.com By STEPHEN HAGENBUCH | 1/20/09 D.C. residents should be ready to retire those “Taxation Without Representation” license plates, with a supportive president and a Democratic Congress already scheduling a hearing about granting the District voting rights in Congress. So why are so many advocates wringing their hands? The reality is that even if the stars are aligned in Congress, lawsuits are already being prepared on both sides of the debate, constitutional scholars are casting skepticism on the proposal, and a strict legal interpretation by a right-leaning Supreme Court could doom the entire effort. “We are getting ready for the possibility of a lawsuit,” said Ilir Zherka, executive director of D.C. Vote, which has led the fight to grant the District a vote in the House. “We will be prepared to fight that fight in the courts, because we believe it is constitutional.” And constitutional lawyers are girding to fight the other side. “The text and the history of the Constitution make that proposal basically unconstitutional,” George Washington University Law School professor Jonathan Turley told Politico. Turley has testified in congressional hearings in opposition to the voting rights bill. Turley’s argument against D.C. voting representation comes straight from the Constitution, which says representatives are “apportioned among the several states ... counting the whole number of persons in each state.” “State,” of course, being the key word. The debate has launched a wide range of creative options for overcoming the political and constitutional resistance to the D.C. congressional vote. The most straightforward legislation, co-sponsored by Barack Obama when he was a senator, would give D.C. and Utah one seat each in the House, so neither party would receive a net gain in partisan representation. This legislation passed the House 241-177 in April 2007 but received 57 votes in the Senate — three short of breaking a filibuster and far too few to override President George W. Bush’s promised veto. The House Judiciary Constitution subcommittee has already scheduled a Jan. 27 hearing on the bill, and with at least 58 Democratic senators, the bill has a much better shot in the 111th Congress. Obama supports D.C. voting rights, but on Thursday he said the proposal would inject a “partisan flavor” and that “right now, I think our legislative agenda’s chock full,” causing some supporters to worry it might not be a priority for his administration. And even if he does eventually sign a bill, legal challenges would begin immediately. “If Congress begins to create new types of voting members other than states, it could do great mischief in the future,” Turley said. “Under that power, they could create 20 seats for military areas. Or they could give 10 seats to Puerto Rico. Once Congress allows itself the right to create nonstate members, it’s a very dangerous and destabilizing act.” That’s why Turley supports “retrocession,” returning the District’s territory to Maryland, as Arlington was returned to Virginia in 1847. This would sidestep the problem of giving a nonstate congressional representation. Supporters counter that the Obama-backed bill is constitutional under the clause giving Congress the power of “exclusive legislation” over the District. “We think we have a very strong case to make,” Zherka said. But if this proposal is overturned, countless others are waiting in the wings. Rep. Dana Rohrabacher (R-Calif.) is ready to make D.C. part of Maryland — but only for electoral purposes. His bill would give District residents full voting rights for House, Senate and presidential elections in Maryland. The District would keep its local government and congressional oversight, but it would lose its three Electoral College votes in exchange for voting for president as Maryland residents. “We believe our approach is constitutional, because its goes through a state,” said Rohrabacher’s chief of staff, Rick Dykema. He said the bill is analogous to laws governing overseas voters, who, under federal law, must be allowed to vote in federal elections in the state they last lived in. The proposal “potentially could increase the power of D.C. voters” in the presidential race, because D.C. would be voting for a slate of 10 electors, not just their current three, Dykema said. The bill would also give D.C. a voice in the Senate election; the previously passed bill does not. “We don’t expect that the majority is going to prefer our approach, ... even though it would benefit the residents of the District of Columbia by giving them full representation,” he said. “If the Supreme Court determines [the law] is unconstitutional, we would think that people would need to take a look again at our approach, and we certainly will be talking about our approach” during debate on the bill. While Rohrabacher’s proposal is crafted from the right, D.C. activists on the left are ready with their own counterproposal. Vikram Surya, founder of DC Represent, says he has an approach more akin to Obama’s “no-drama” approach to change. His group proposes to change federal, D.C. and Maryland law to permit D.C. residents to be counted as Maryland residents for the purposes of voting in House and Senate races. The District would retain its three Electoral College votes, unlike in Rohrabacher’s approach. “Sometimes people might get attached to their solution,” Surya said of D.C. voting rights activists. But because the proposal does not affect local or presidential elections, Surya said, it “doesn’t get into any turf battles — only on the turf of people that have been advocating around this issue a long time, because they’ve got their vested interests in a specific approach.” But Zherka said the logistics of congressional district sizes make these proposals problematic. “D.C.’s population is not as large as congressional districts within a state,” he said. “You would have to redistrict the city so that the city has ... residents from Maryland, or break up into different congressional districts within Maryland.” He said that a proposal like Surya’s or Rohrabacher’s is “not one that we’ve seriously contemplated, and not a viable option.”