DC Voting Rights: Is This The Year?
(I'll be online for an hour-long chat about this Outlook section essay on Monday at 1 p.m. Please join me at washingtonpost.com/liveonline)
For decades now, eyes have rolled and members of Congress have fled for the exits when the perennial nags from the D.C. voting rights movement have come around with their incessant whining about the terrible injustice visited upon the people of Washington.
Elected officials well-schooled in the art of saying "No" without ever actually using the word made a special exception: No, no, no, they told D.C. residents, you may not have a seat in Congress. And if you don't like it, you can move to a state.
Well, strap yourselves in, because the rollercoaster journey toward adding a seat in the House for the District has reached its most ambitious height since the 1970s, and the wild ride is now heading into the Senate. A bill that would create one seat for Washington -- an assuredly Democratic slot -- and an additional one for Utah -- a Republican gimme -- passed the House last month by a vote of 241 to 177.
How this happened is almost as remarkable as the fact that the Senate is about to consider the issue. A battle that has been stuck on repeat for half a century has been altered by savvy political maneuvering and the desire by both political parties to stake out some moral high ground while the nation fights an unpopular war.
The arguments over D.C. voting rights always centered on two questions: Does the Constitution allow the District to have a seat in Congress? And why should Republicans consent to creating a seat that would be Democratic from now until at least the end of time?
But the D.C. voting rights issue has morphed into a way for Congress to address far less parochial questions, including the nation's political polarization, its inexorable ethnic diversification, its declining status in the world and a yearning for moral leadership at home.
"It's a harmonic political convergence," says Wade Henderson, president of the Leadership Conference on Civil Rights and a lifelong Washingtonian who has pushed for D.C. voting rights for decades. "This bill is advancing in an unexpected way for several reasons, including a new bipartisanship on civil rights; the pairing of the District with Utah, which was a stroke of sheer political genius" by Republican Rep. Thomas M. Davis III of Virginia, "and the fundamental truth that we talk glibly about bringing democracy to Baghdad while people in this city are denied the vote."
Article I of the Constitution says plainly that "the House of Representatives shall be composed of Members chosen . . . by the People of the several states." The District is definitely not a state. So the legal debate over D.C. voting rights has always been a straightforward tug of war.
One side says, "Sorry, it would be great if half a million people weren't disenfranchised, but that's how the Founders wanted it; a state is a state, and you ain't a state."
The other side says, "Let's be real: When the Founders wrote that, the District barely existed and nobody envisioned a city sprawling far beyond its federal core. Anyway, Congress routinely treats the District as a state, allowing D.C. residents to file suit in federal court (even though the Constitution similarly restricts that right to 'Citizens of different States') and requiring city dwellers to pay federal income taxes."
The Constitution is still a big part of the argument. But listen closely to the latest round of this debate -- and especially to the battle raging inside the Republican Party -- and you will hear lots of other issues, and that's the District's grand new opportunity.
Only 22 Republicans broke with the White House and party leadership in Congress to support the voting-rights bill. But the ability of Davis and former congressman Jack Kemp to get even that many Republicans to resist the entreaties of party whips demonstrates how three larger issues have shifted the debate over the District.
· First Republicans want to expand their reach beyond the white suburban base to appeal not only to blacks, but to Hispanics and other immigrants who may see a District seat as a symbol of a country embracing its minority population.
Several Republicans who have switched sides on D.C. voting rights in recent weeks said that Kemp persuaded them to focus on this as the premier civil rights question of the day.
"I would like someday for African Americans to feel more at home in the Republican Party than they have in the past 70 years," said Rep. Mike Pence of Indiana. "I cannot believe the Founders intended to deny 550,000 Americans representation."
Kemp points to Republican opposition to the 1964 Civil Rights Act as the moment when his party lost the bulk of its black support, and he warns against a repeat performance. "Members say, 'Well, black people in L.A. don't care about this,' " Kemp says of his conversations with lawmakers. "Let me tell you, African Americans know that Washington, D.C., is a majority-black city with an African American mayor. This is one of the last chances the Republicans have to be a truly national party."
· In the shadow of an unpopular war and a gloomy cloud of anti-American sentiment around the world, an increasing number of Republicans are looking for ways to counter criticism that the United States is less than a paragon of democratic virtue at home.
On a trip to see the chief executive of Hong Kong, Davis raised the issue of China's interference with that city's election system. The chief executive turned on the congressman, saying, "Don't you lecture me -- you don't even let residents of your capital city vote." U.S. officials are apparently encountering ever more such difficult moments abroad.
"Young men and women are being sent from D.C. to Baghdad," Kemp says. "The hypocrisy is painful. It's just unbelievable how Republicans could turn away from American citizens who want to vote. I don't see how they can sleep at night."
· Americans are sick of polarization in Washington, in the media and in the way politicians market themselves. The D.C. voting rights bill presents Republicans with an opportunity to demonstrate independence from purely partisan motivations (even as the scheme to grant an extra seat to Utah seeks to neutralize the partisan impact of the change).
"This is about being on the right or wrong side of history," said Rep. Paul D. Ryan, a conservative from Wisconsin. After he and his wife went on a civil rights pilgrimage with Rep. John Lewis, a Georgia Democrat, he came home determined "to make sure that if I see this kind of injustice in my time, I'm not complicit in it."
As the D.C. vote takes on new levels of meaning, opposition remains strong. The White House has made it clear that aides will recommend that the president veto any expansion of D.C. voting rights. Supporters in the Senate expect Minority Leader Mitch McConnell of Kentucky to lead a filibuster against it. Ostensibly, McConnell and the Bush administration base their opposition on constitutional objections to a D.C. seat, but Davis says the real reason "is purely political. They see it as one more seat for the other side." Some Republicans figure their party will get the extra seat in Utah anyway in the redistricting after the next census.
But with Republican Orrin G. Hatch of Utah and independent Joseph I. Lieberman of Connecticut sponsoring the Senate version of the bill, voting rights advocates say they can fend off a filibuster. "We don't need Republicans to vote for the bill," Davis says. "We just need nine to stop a filibuster, and we think we have them."
For the many Republicans who still believe that the Constitution poses an impassable barrier, Davis has one plea: Let the courts decide. And he has a delicious tool of persuasion, a strongly argued brief in favor of the constitutionality of a D.C. vote written by former special prosecutor Kenneth W. Starr and law professor Viet D. Dinh, who helped write the USA Patriot Act. Both are conservative scholars who draw deep respect from Republicans.
"I talk to members of Congress about this and they literally walk away, saying the bill is unconstitutional. Unconstitutional? They voted for the Patriot Act!" Kemp says. "A presidential veto on this would consign the Republican Party in perpetuity to 8 to 10 percent of the black vote."
If this is finally the year when District residents get their voice in the House, it won't be because of any novel constitutional interpretation or any newfound love of the city. It will be for the most traditional of political reasons: A bunch of politicians needed an issue -- a way to show that even in this dark hour, they could strike a blow for democracy and the validity of the American ideal.
By Marc Fisher |
May 5, 2007; 12:08 PM ET
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Posted by: Anonymous | May 5, 2007 4:31 PM
Coninuing the above post, I fully support DC representation by constitutional means, either statehood, constitutional amendment, or retrocession with the express consent of Maryland. If people want to settle for a single voting representative, then it must be done by amending the Davis bill to include a constitutional amendment, with Utah getting its representative when the amendment is ratified. Those are the rules.
Posted by: Vince Treacy | May 5, 2007 4:34 PM
I did't know Mayor Fenty was African Amercian? Someone made a comment on a blog, he was the first Italian American mayor of Washington.
Posted by: Ward Four | May 6, 2007 6:10 PM
In 1793, in the Capitol (Philadelphia) the Congress denied Revolutionary War Vets a promised bonus. The soldiers threatened to march on the Capitol and the Congress called on, first, the Philadelphia and then the Pennsylvania militias to protect them. Both the Mayor and the Governor refused, personally joining the marchers. The Congress loaded its wagons and moved the Capitol to NY City. Why is this relevant? Every time the "statehood" issue has been raised (in the 19th Century and as recently as 1972), the issue of who controls the District of Columbia National Guard (Militia) has been raised.
To make this clear, in 1972 the DC National Guard was given the motto, "Capitol Guardians." The alternative, "President's Militia" was rejected. Unlike the 50 States and three other territories, the DC National Guard has a "Commanding General" rather than an "Adjutant General" at its head. In all the others, that person's "boss" is the Governor - in DC the Commander in Chief of the DC National Guard is the President of the United States.
In 1846, one-third of the original 100 square mile District was ceded back to Virginia (the present counties of Arlington and Alexandria). Perhaps it is time to give the remaining two-thirds back to Maryland (but would they take it?), and stop the argument about giving a 65 square mile piece of land status equivalent to the 50 States of the Union.
Posted by: Mike | May 7, 2007 6:40 AM
So pass it and let the courts decide. There's no way in the world the founding fathers envisioned 550,000 disenfranchised people. The bill's not perfect, but we'll take it!
Hey, we've got a bigger population than Wyoming Mike, and not so different from N. Dakota, Alaska, Delaware, S. Dakota and Vermont. Is land area an argument for disenfranchisement?
We pay taxes (and I bet a heap more than the federal income taxes paid by Wyoming, Vermont, or the Dakotas), we get wounded and die in wars; what the heck does what we call our Nat'l Guard commander have to do with it? We deserve our civil rights just as much as the rest of the nation.
Posted by: NWDC | May 7, 2007 10:13 AM
Whenever the discussion of retrocession comes up I always hear that MD and DC don't like that option. I think the truth is that the POLITICIANS of MD and DC don't want their little empires disturbed.
Posted by: Josey | May 7, 2007 2:21 PM
Maybe the politicians don't want it disturbed, but as a DC voter, I can tell you that I want to vote the interests of my jurisdiction, not MD. I think my Maryland counterparts feel about the same.
Posted by: Charles | May 7, 2007 2:30 PM
NWDC says "let the courts decide." How about the Constitutional amendment of 1978: The Washington DC Voting Rights Amendment?
It granted the citizens of Washington DC the same full representation in Congress as any state, and repealed the 23rd Amendment granting the District votes in the Electoral College (since it would have been moot). It expired unratified in 1985.
The text:
Section 1. For purposes of representation in the Congress, election of the President and Vice President, and article V of this Constitution, the District constituting the seat of government of the United States shall be treated as though it were a State.
Section 2. The exercise of the rights and powers conferred under this article shall be by the people of the District constituting the seat of government, and as shall be provided by the Congress.
Section 3. The twenty-third article of amendment to the Constitution of the United States is hereby repealed.
Section 4. This article shall be inoperative, unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.
I would have no problem with this if proposed and ratified. But, as things stand Article 1, Section 8, Clause 17, of the US Constitution gives Congress authority "to exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States...."
So, propose the amendment again, but this time to Article 1, Section 8, Clause 17, and the 23rd Amendment. If it passes and is ratified it will be the law of the land.
Posted by: Mike | May 8, 2007 11:05 AM
Mike: How about it? Passing the amendment would be fine. In the meantime pass this bill! We're treated like a state for virtually every other purpose (including taxation, from "among the several states" in the 16th amendment).
Thanks for your support for the DC Voting Rights Amendment too!
Posted by: Vote! | May 10, 2007 2:40 PM
The comments to this entry are closed.
Wow, Dinh, the guy who wrote the Patriot Act, supports the Davis bill, while Kemp denounces those who voted for the Patriot Act. Well, the Post itself reported that Dinh was paid $25,000 for his opinion, so it is no wonder it supported Davis. In the meantime, the experienced, non partisan Congressional Research Service found that courts are likely to hold it unconstitutional. Professor Jon Turley of GW Law has warned of its unconstitutionality for over two years. Even if upheld by the courts, the bill would leave D.C. woefully unrepresented. With no Senators, the District would have no voice in confirmation of officers, judges or justices, ratification of treaties, or trial of impeachments. The new Representative may not even be able to vote on deadlocked Presidential elections under the 12th Amendment. Look it up and read it yourself.