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Posted at 8:59 PM ET, 01/ 8/2011

A better road to the vote: Retrocession, with a twist

By Michael Wein, Greenbelt

There is a new Congress in town, but The Post and others continue to push for what the last one would not do: Enact a purely political, and likely unconstitutional, plan to give the District a full-fledged and almost certainly Democratic member of the House of Representatives in exchange for an extra Republican seat somewhere else.

The Constitution does not require this kind of gamesmanship for the District to get federal representation. Instead, bipartisan and lasting change can be achieved by enacting legislation that can quickly, cleanly — and constitutionally — guarantee D.C. residents the right to vote for Congress by 2012. What’s more, they would also be able to begin voting in Senate races. They would just be doing so as Maryland residents — while otherwise retaining all other unique aspects of living in the District.

All that is needed is a little legislative ingenuity.

There is strong historical precedent for the first half of this. The District was originally designed as a diamond-shaped enclave for the federal government. In 1801, through the District of Columbia Organic Act, the young states of Virginia and Maryland ceded part of their territories to help the United States establish a strong federal government capable of dealing with foreign threats and creating circumstances conducive to vibrant economic activity. It all worked so well that by 1846 it was agreed that the portions of the District ceded from Virginia could be returned, and residents of Alexandria and Arlington resumed voting for members of Congress as Virginia residents.  

The idea of “retroceding” all or most of the remaining District to Maryland is a familiar part of the debate on D.C. voting rights. D.C. residents understandably raise objections to such a change. But this would not be retrocession as it is normally discussed. There are many levels of sovereignty, and nothing in the Constitution would prohibit D.C. residents from being considered part of Maryland solely for the limited purpose of federal elections. The District’s system of government would not have to change in any other way.

The needed legislation involves only the constitutional provisions found in Article IV, Section 3, which state:

Clause 1: “New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”

Clause 2: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”

Read together, these two clauses confirm that, with the permission of Congress, the Maryland legislature and ideally the D.C. Council, D.C. residents can be designated to vote as Maryland residents for federal elections. It would require just these steps. Most important, there would be no questions regarding whether such a change is constitutional, unlike the consistently flailing “compromise” legislation that ignores the “state” requirement for congressional representation.

What are the possible costs and complications? There would be some start-up costs for the Maryland Board of Elections to update its voter rolls to include D.C. residents and coordinate the elections of the Maryland members of Congress with D.C. officials and agencies. Maryland senators also would need about a 20 percent increase in staff and resources for their new constituents from the District.

The unavoidable political aspects of this plan are likewise easily manageable. There might be griping that a random state will lose a member of Congress. Whichever state this is, however, it will be based on an impartial mathematical process derived from the new census data. Math will also affect the lines for the new Maryland congressional district; since the District has about 600,000 residents and the average congressional district about 650,000, a portion of Prince George’s County or Montgomery County will need to be redistricted in with the city.

Also, Republicans may object that additional Democratic voters will affect Maryland’s Senate races. But the Democratic Party already holds a significant registration edge in Maryland, so the effect on Senate races would be minimized.

Lastly, the legislation would need to be drafted so that the 23rd Amendment remains unaffected and the District retains its three Electoral College votes for president.

Few disagree that it is unfair that 600,000 D.C. residents lack full representation in Congress. The time to address this is now, before the redistricting from the census becomes finalized in 2011. Doing so would also give President Obama and both parties in Congress a chance to show the American people that smart breakthroughs on long-deadlocked issues can still be achieved in today’s Washington.

The writer is a lawyer in private practice.

By Michael Wein, Greenbelt  | January 8, 2011; 8:59 PM ET
Categories:  D.C., D.C. politics, DC Vote, HotTopic  
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I appreciate Mr Wein's thinking outside the box. Two major hurdles would arise from his solution....
1-Would the Maryland legislature approve the idea?
2-Unanswered question...if DC can vote as part of Maryland, can the District also provide candidates from within its borders to run for the US Senate and House?

Posted by: johnklenert | January 9, 2011 7:33 AM | Report abuse

All well and good. But the same language that defines representation is used to levey income taxes. So, since DC residents must pay taxes, they must have representation. Same as everyone else. No creative thinking is needed.

Posted by: AMviennaVA | January 9, 2011 10:44 AM | Report abuse

Would DC citizens be able to vote on members of Maryland's legislature for the purpose of approving Constitutional amendments? Would DC citizens vote for the Governor who fills vacant Senate seats? What would happen to DC's three electoral college votes? Why would Maryland agree to have a smaller voice in the Senate (by sharing with DC)?

Posted by: cranor | January 9, 2011 2:34 PM | Report abuse

I like a better idea:

As DC is said to be represented by ALL of congress, let DC residents vote for ALL of Congress.

Or give us our tax money back.

Congress had no right to remove voting rights from citizens when they created the district. Virginia should never have gotten 1/4 of DC returned to them. The retrocession was ridiculous then and now.

If a congressperson from anywhere in the USA can have a say in DC government, DC residents should have the vote for all of Congress.

Posted by: Greent | January 10, 2011 11:09 AM | Report abuse

I love the idea of retrocession but know it will not happen; The current politicians in Annapolis do not want to see power shift to a bunch of newbies in the "new" Maryland districts, the current politicians in Baltimore do not want to see even more power shift to the Washington area and the current politicians in DC rule their own little pond and would not like to be thrown into the bigger pond of Maryland where they would not be kings.

In other words, retrocession may be very good for the citizens but the current political class will be uniformly against it.

Posted by: KS100H | January 11, 2011 9:15 AM | Report abuse

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