Feb. 11, 2016 SIGN IN | REGISTER

Too Clever by Half: the Unconstitutional D.C. Voting Rights Bill

One of the most anticipated pieces of holdover legislation for the 110th Congress is the D.C. Fair and Equal House Voting Rights Act, giving the District of Columbia a single vote in the House of Representatives and balancing that Democratic vote with a fourth district for Utah. While heralded as a historic and long-overdue reform for the Districtís non-voting citizens, the legislation is a constitutional and practical nightmare. It is an example of being too clever by half ó trying to do the right thing without doing it in the right way.

On its face, the bill would create a type of half-formed citizen, residents with a representative in the House but not the Senate. While the same logic could be used to create two Senators for the District, the sponsors insist that one Representative is sufficient. What is particularly annoying is that sponsors are framing this as a civil rights measure ó as if allowing Rosa Parks to move to the middle of the bus would have been a civil rights victory.

The problem for the sponsors is the text of the Constitution, which clearly says that only states are allowed to have voting Members in the House. The District of Columbia was created for the express purpose of being a non-state. Indeed, the non-voting status of District residents was openly debated at the time and was repeatedly raised in the early years, particularly when a large amount of the District was retroceded back to Virginia in 1847.

This should be an easy constitutional question with both the constitutional text and history in agreement. That plain meaning, however, is plainly inconvenient for Members who do not want to deal with the difficult process of retroceding the District back to Maryland from whence it came. Instead sponsors have taken unprecedented liberties with one of the most fundamental parts of the Constitution: the rules governing who can vote on national legislation.

There are obvious risks to this gamble. After spending millions to secure each marginal seat in the midterm elections, the Democrats may spontaneously create a new GOP voting Member in a closely divided house while the District vote is struck down in litigation. Worse yet, if any votes turn on a single vote, a latter decision striking down the bill would create uncertainty as to the legitimacy of enacted legislation.

The Utah seat is in a better, but still not unassailable, legal position. In the original bill, the sponsors tried to create a new at-large seat for Utah. This, however, would have violated constitutional guarantees of one person-one vote with Utah citizens who would have not one but two Representatives in the House.

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