Michael Bindner's DC Blog

In this blog, I discuss DC politics and other issues of import to local government. I have posted several essays from my book, Musings from the Christian Left, on blog entreies dated June 2004.

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Location: Alexandria, Virginia, United States

Friday, September 15, 2006

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.

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