Voting Rights Update

I found the testimony not covered in the Washington Post article on the Committee web page. The testimony was about what I would expect, but it would have been good to have published more of it in the article. Even the harshest deadline would have allowed that.

What was unexpected was for Ken Starr to come out for voting rights, although not too terribly so, since some think voting rights is a way to shut up the statehood movement (Marc Fisher among them, if you read last week's blog on the subject).

The comments I provided to the committee can be found here.

Voting Rights Bill Up for Amendment

Mary Beth Sheridan reports in the September 15 Washington Post on Chairman Sensenbrenner's objections to an at-large member for Utah. The article virtually ignored the rest of the hearing, providing a paragraph at the end about witness testimony (which I would have liked to hear more about). I will check online for it. Maybe I will also see my own comments, which are posted below in a modified form (I left out the opening and closing paragraphs):

No matter what you feel about the final result, the legislation should be advanced to the floor, where it might be considered with similar measures, specifically H.R. 5410, No Taxation Without Representation Act of 2006 (Norton); and H.R. 190, District of Columbia Voting Rights Restoration Act of 2005 (Rohrbacher). The full House must be given the opportunity to work its will on this issue, so that some form of representation is passed for the citizens of the District of Columbia, most especially those currently serving in harms way in Iraq and Afghanistan.

H.R. 5388 has been modified to overcome most of the partisan objections to the bill. Its only flaw is that it does not address representation in the Senate, although I trust that this comes from inter-chamber humility on Mr. Davis’ part rather than any desire to continue to deny District of Columbia residents full voting representation. The purported constitutional flaw is a canard, as Congress can correct it under its plenary power.

H.R. 5410 does not have this flaw, but it also does not provide the political expedient of an additional house seat for the other party, which is a necessary expedient for passage.

H.R. 190 provides full voting representation in both parties, albeit through the State of Maryland. If there are any constitutional objections to Mr. Davis’ legislation, they are overcome by this bill. This thwarts the wishes of some democracy advocates, particularly my friends in Stand Up for Democracy in Washington, DC. Their major fear is that dealing with this issue will close the book on statehood for the District, their ultimate goal. While their point on the District’s status vis-à-vis Congress is valid, it will still be valid after some measure of representation is granted in both chambers. The one flaw in Mr. Rohrbacher’s legislation is that it ignores one small legal matter, the coordination of voting and redistricting matters. It would be prudent to add the mechanism of an interstate compact between Maryland and the District of Columbia to his legislation to include the District in deliberations on congressional redistricting and to provide for consistent voter registration between the two jurisdictions.

There still remains the issue of self-determination for the citizens of the District of Columbia. Congressional control has been justified by the well known insult in Philadelphia, whereby veterans of the Continental Army insulted the Congress. The incident often referred to, however, may have been a hastily arranged publicity stunt designed to arrange for support of a model federal city which would be a showplace for the world. Any glance at the roadways around the Capitol and the District’s overall infrastructure deficit shows that this experiment has failed, largely because of the District’s lack of voting representation, as members will take care of their own districts and states before they provide for a model federal city. The passage of one of these bills may well correct this part of the problem, although it does not resolve every issue.

Returning to the incident in Philadelphia, the real insult to Congress was not the hastily arranged insult but the fact that the Continental veterans had not come to complain to Congress, but to the Pennsylvania legislature. Congress was a non-entity in their eyes. The power and prestige of the Congress is now without question. It need no longer retain its plenary power over the District in order to reinforce it.

Two options for correcting this issue are often bandied about: retrocession to Maryland (Mr. Regula’s bill) and statehood. Retrocession has been foreclosed by the refusal of the State of Maryland to consider the matter and the stated opinion by most of its leaders that the idea is a non-starter. Statehood is not even on the table, if for no other reason that it has two constitutions, one which has not been ratified and the other which stands so little chance of garnering congressional approval that it has never even been presented. While there are efforts to resolve this ambiguity afoot in the District, they will not bear fruition before the end of this session.

There is a third option that is not often discussed but is very real. The District of Columbia is the only jurisdiction in the United States where the state legislature, in this case the Congress of the United States, can unilaterally change the constitution of the state without an intervening election or ratification vote by the citizens, even though the closest thing the District has to a constitution, the Home Rule Charter, was ratified by the voters of the District of Columbia. Once the power to reject a constitution has been given, the power to amend it by popular vote is inherent and a matter of equal protection under the law. This right of equal protection vis-à-vis the Congress was recognized by the United States Supreme Court in Bolling v. Sharpe (citation omitted), so the Congress cannot hide behind the plenary power clause in ignoring it in this matter. While one may argue that the Charter is not a constitution, this can be dealt with by noting that Charters exist in all other jurisdictions under state constitutions, which the District does not have. In that light, the Charter is the constitution and the equal protection violation maintains.

This injustice can be easily corrected and doing so will redress the balance between the Congress and the citizens of the District in a way which does not foreclose congressional involvement in issues having to do with the maintenance of the federal city, while leaving the District to look to its own affairs. Simply provide for a ratification vote in Section 303 of the Home Rule Act whenever Congress amends it. This does not diminish the authority of Congress in all matters, just in those where it acts as the state legislature for the District of Columbia. It is entirely appropriate to do so and failure to do so is in fact tyranny. Of course, such an amendment would itself require District voters to consent, although I am sure that will be easily granted.

The National Capital Service Area - Finances, Voting Rights AND Statehood

One of the open issues in the drive for statehood is the question of "what's left." This recently came up in discussions on the Stand Up for Democracy discussion list. In 2000, I organized a workshop (along with the Committee for the Capital City) discussing strategies for the movement after a victory in Adams v. Clinton, the 20 Citizens lawsuit. Both statehood and reunion with Maryland were explored. Of course, as you all know, victory did not only not come, but the issues raised were not addressed by the Court. The discussion was valuable, even if it was premature. One of the issues raised was how to draw the boundaries for what is left in the National Capital Service Area. The 1982 Constitution ratified by the voters, as well as the now dormant proposed 1987 Constitution, used the boundaries enacted in the Home Rule Act. This is a problem, since any income earned in that area would not be subject to a non-resident income tax (which shows that this issue is a red herring as an objection to statehood as currently drawn, since most commuters work inside the NCSA). At the 2000 meeting, it was suggested by longtime D.C. Statehood Party member Lou Aronica that these boundaries be readdressed, because of the commuter tax issue.

The maintenance of the NCSA is one of the failures of the D.C. Government. The Home Rule Act allows the District to seek reimbursement from the Administrator of the NCSA for services rendered to it. President Ford named the National Capital Planning Commission as permanent administrator, yet the District has not seen fit to seek the reimbursement it so richly deserves. Doing so would reopen the question of compensating the District equitably, leading in time to an approriation for these purposes. A no-year appropriation would be best, since this would not be subject to the vagaries of partisan politics. Presumably, such an appropriation would be durable, that is, it would last even in the event of statehood for New Columbia.

This still leaves open the question of redrawing the lines of the NCSA to capture the income from as well as reimbursement for services too, the non-residents who work within it. This is a key question regardless of whether one prefers statehood or reunion with Maryland, since keeping this income out of the mix may sour the deal for Maryland, since then it would not be able to ask for commuter taxes on all of those Virginians. This is good, as it means that Maryland's congressional delegation become natural allies in any discussion on resetting the boundaries of the NCSA.

There is an even more urgent factor in this debate, the question of Presidential and congressional voting rights. How we draw these boundaries is important, not only for commuter taxes, but because under Evans v. Cornman, residents of federal enclaves have a right to vote. Currently, the ANC boundaries are drawn to include all federal land - including the Navy Yard, Bolling Air Force Base and Fort McNair. These military members and their families, who have a right to vote at home, also have a right to vote in District elections instead. ANC Commissioners represent these individuals whether they vote or not and technically military members can run for ANC.

This is a salient fact and the reason we must consider redrawing OR NOT redrawing the boundaries of the NCSA. If we redraw the boundaries to include these military members and their families within New Columbia (or Maryland), they will still vote at home and the 23rd Amendment will be a moot point. However, if we leave the NCSA boundaries as they are, these military families suddenly have a reason to register to vote in the District of Columbia. Not only that, but overseas American soldiers have an interest in changing their home addresses to one of these bases. Why is this? THREE REPUBLICAN ELECTORAL VOTES, TWO SENATORS AND A CONGRESSMAN (should voting rights pass and include senatorial representation). This might actually be the compromise needed for New Columbia to achieve statehood. Granting statehood under current law would give three electoral votes to the new state and three to those who remain - a net three for the party in power. It makes voting rights attractive in the Senate to the party in power. So attractive that the Democrats may fillibuster the measure.

Here is where the MOVEMENT needs to do a morals check. Is the movement really about self determination or is about partisan advantage? If it is about partisan advantage, the movement loses its moral focus (which the Republicans doubt it has anyway). If we are really sincere, we will take statehood under these terms, with no net Democratic gains - and even a small loss. This should not be important, since the failure of the last two Democratic presidential candidates had more to do with a bankrupt electoral strategy (win the "Blue States" rather than running a truly national candidate) than with the electoral map.

Expel Congress

About a year and a half ago, Faith came to StandUp! seeking support for a July 4th event hwere District residents declare their independence from the United States. She has been making this argument for years and I had always dismissed it as a bit nuts, but then it occurred to me that the equivalent of this is to do a citizen initiative to expel the Congress from the District of Columbia. For the first two decades in the life of the District, Congress held the possibility of removing the Capitol to another place as a sword of Damoclese to force compliance on all issues, especially financial. Now that all the original land speculators are dead, I say we return the favor.

The importance of such an effort is that the United States must oppose it, denying the right of the District's residents to expel Congress and thus confirming that the District has no right to self-determination. This argument will be explosive, even more so if accepted by the Courts and affirmed by the Supreme Court.

A serious referendum to throw out Congress is about the only thing the District of Columbia can force the United States to admit that the District is a colony. The 20 Citizens lawsuit tried to force these admissions and the United States merely demured on the factual statements and ignored the actual arguments which were never addressed in any finding or opinion. While we cannot prove ex parte communication occurred to ignore the major issues, the proof is in the pudding. The great thing about a citizen initiative is that it cannot be stopped unless they admit what we want them to admit. Again, it is not about the actual issue, but getting the Solicitor General to say that the District does not have the right to self-determination in his legal brief.

If the initiative sponsors, the United States is effectively smacked down. If the initiative sponsors lose, then the Court is on record in saying the the District is a colony and its residents have no right to self-determination - which is the declaration that the 20 Citizens were fishing for but could not get.

The lawsuit will be filed when the DC Board of Elections and Ethics denies ballot access. The United States will undoubtedly intervene and what was implicit will be made explicit. If the initiative sponsors win, then the government will likely want to make a deal because they have too much to lose to allow the District residents a vote on this issue.

If they want to deal, aside from a star in the flag and voting rights in both Houses, we must demand that Congress cease and dissist from unilaterally amending the District Charter without the consent of D.C. voters. This can be done by inserting language in Section 303 of the Home Rule Act. The other method is to challenge the next attempt to amend it unilaterally. This is further discussed on my web page. The important thing about this effort is that it takes the fun away from Congress. In theory, it acts as the state legislature. However, no state legislature that I know of can unilaterally amend the state constitution without some form of popular check, either a ratification vote, an intervening election, or both. By taking their fun away, we take away the main obstacle to statehood.

What is required to get this effort off the ground. First, we need initiative sponsors and a committed group of petition circulators. Second, and as important, we need legal representation, most likely the ACLU. Doing this will surely attract attention, since this issue will be explosive. If the Free DC movement wants its arguments out there, this one of the most effective ways to do it. It would certainly put pressure on Congress and take some of the attention off of voting rights.

Call for a People's Constitutional Convention (Geocities Rescue)

Proposed Goal: To recommend to the Council of the District of Columbia a proposed New Columbia Constitution and Home Rule Act Amendments to be submitted to District of Columbia voters. Even if the Council proposes and submits a different constitution, the goal of resolving the problem of two New Columbia Constitutions will be achieved. This action will advance statehood by removing a major obstacle, a single ratified constitution acceptable to the Congress. If state structures are put in place for the current District Government, the cause is even further advanced, especially if Congress resists and elevates the issue.

Proposed Membership: Six members from each ward and 3 at-large (51 total), to be elected by an open caucus of District voters among nominees drawn from StandUp! other Team Democracy members, the DC Statehood Green Party, the DC Republican Party, the ANC Assembly and ANC Commissioners, and the Democratic State Committee Statehood Caucus, the State Committee as a whole and ward level Democratic Committees. Candidates must certify that they support statehood for New Columbia to be put forward for nomination. Outreach: StandUp! members will visit the DC Statehood Green Party, the DC Republicans, the ANC Assembly and the Democratic State Committee Statehood Caucus. ANC Commissioners and members of the Democratic State Committee will be notified by mail two months prior to the first convention session (the Board of Elections and Ethics should have this list). DSC members will be asked to notify their ward committees.

Proposed Convention Organization: The convention will draft its own procedures. However, we will recommend that it break into committees to consider the various articles: The Bill of Rights, the House of Delegates, the Governor, the Judiciary, Finances and the National Capital Service area, Amendments, General Provisions. The various committees will be empowered to call witnesses, especially the House of Delegates Committee. The House of Delegates Committee will consider especially the size of the House and the number of Delegates from each ward. The committees will present their recommendations to the full convention, which will vote on their recommendations and approve final constitutional language, amendments to the Home Rule Charter and the text of the referenda (see attached sample).