(1) Structure of bill and Constitutional Authority
What does H.R. 3709 do? What is its constitutional authority?
H.R. 3709, the District of Columbia Voting Rights Restoration Act,
simply restores the federal voting rights of D.C. residents that Congress
took away by enacting the Organic Act of 1801 ten years after the District
of Columbia was formed. Once again, D.C. residents would be able to vote
for, run for, and serve as, U.S. Senators, U.S. Representatives, and
presidential electors from Maryland. It accomplishes this by undoing the
disenfranchisement effects of the Organic Act that was enacted pursuant to
Article I, Section 8. Congress has the authority under Article I, Section
4 to control the conduct of federal elections.
(2) Political and Geographic Cohesiveness of the District of Columbia
What is to keep the Maryland legislature from splitting D.C. and joining it
with two or more Maryland congressional districts?
Since the Constitution reserves redistricting to the states, could Congress constitutionally
ensure that Maryland would not split D.C. into two or more parts through simple
legislation, eliminating the present cohesive geographic, political and
legal character of the District?
H.R. 3709 would require in any new congressional redistricting by
the Maryland legislature that D.C. be kept intact in the new congressional
district, with contiguous territory from adjacent Maryland counties added
as necessary to produce a district equal in population to the other Maryland
districts.
Such a requirement is entirely constitutional. Article I, Section 4
permits Congress to supersede the states in matters relating to
congressional elections. The controlling Supreme Court opinion in Oregon
v. Mitchell (the 18-year-old vote case) goes into detail how this section of
the constitution has always been understood to include Congressional
authority over redistricting, and in fact Congress has exercised this
authority to the extent of prohibiting states with more than one
representative from having at-large congressional districts. Further
authority for the "intact D.C." requirement comes from Article I, Section
8, Clause 17, which provides for Congress' power of "exclusive legislation"
over the District.
(3) Representation of the D.C. District by a D.C. Resident
Does the Constitution allow D.C. residents who do not actually live in
Maryland to choose the representatives of that state?
If it were constitutional to treat D.C. residents as if they were residents of the
state of Maryland for the purposes of voting, would D.C. residents be
constitutionally precluded from representing the new Maryland district,
given the language of Article I specifically requiring that representatives
be inhabitants of the state in which they are chosen?
In addition to restoring congressional voting rights, H.R. 3709 also
restores Maryland citizenship rights to be a candidate for, and to serve
as, U.S. Representatives, U.S. Senators, and presidential electors from
Maryland.
(4) Effect of Changes in D.C. or Maryland Population on Redistricting
If, as seems likely, the proposal would require both Maryland and Utah to
redistrict, could the new district be eliminated entirely if the population
of Maryland or the District decreases to a level that would not support the
additional district?
In addition, if the population of Maryland or the District rises significantly, allowing either jurisdiction to claim
additional House members, would Maryland or would the District receive the
additional seat? Would the effect of redistricting in Utah be to make the
lone Utah Democrat's reelection more difficult? Would the proposal
encounter difficulty because Members fear they would lose a seat because
the overall number of representatives under the proposal will decrease from 437
to 435 after the next census?
Under the H.R. 3709, the population of the District of Columbia
would be included in the population of Maryland for congressional apportionment
purposes. Whatever number of U.S. Representatives that population total
entitles Maryland to under the existing formula will be the number it gets.
The additional (4th) Utah seat will not cause any current Member to
lose a seat, since Utah will have four congressional districts after the
2010 census apportionment regardless of whether this proposal is adopted in
the meantime. The additional Maryland seat will have the effect of either
denying some state an additional district or causing a state to lose a seat
that it would not otherwise lose. But that's arguably just a fair
consequence of restoring rightful congressional representation to U.S.
citizens who are currently unfairly denied that representation.
Utah has already enacted into law a 4-district plan that all parties
recognize would result in a 3-1 partisan split. It would be a simple
matter for Congress to lock in that 4-district plan until after the 2010 census.
(5) Disposition of the District's Electoral College Votes
Because representation in the Electoral College is based on the number of
Senators and Representatives in the states, wouldn't Maryland receive only
one more electoral vote to correspond with the new district?
If so, and the District's three reliably Democratic electoral votes were eliminated,
wouldn't the result be to tilt the votes in the Electoral College in favor
of a Republican presidential candidate, if a presidential election were
determined by a small number of votes?
Yes, H.R. 3709 would result in adding one electoral vote to
Maryland's total, and would eliminate D.C.'s current three electoral votes. But just
as noted above, that's arguably a fair consequence of providing full and
equal federal representation to D.C. residents.
(6) Political Controversy
While the proposal on its face has some rough Democratic and
Republican parity, does this equivalence ultimately break down?
For example, is the proposal politically feasible, considering the likelihood
of objections from Maryland elected officials and residents because of the
"transfer" of some Maryland residents to a district dominated by D.C. and
the resulting dilution of Maryland representation, as well as because of
objections from some in the District to being incorporated into Maryland
for representation purposes? Would Maryland's Republican governor and
representatives object to a new Democrat in the Maryland delegation or to
having another electoral vote that would likely be Democratic in
presidential elections?
There are necessarily political consequences to providing fair
federal representation to people who have been unfairly denied it for 200 years. I
believe the H.R. 3709 is both fair and balanced, perhaps causing some
relatively small amount of political pain for both parties. Any other
approach (including keeping the status quo) involves its own political
controversies.
(7) Effect on Home Rule
Once D.C. is subject to Annapolis for redistricting, can the proposal
guarantee the District's ability to continue to govern itself and that the
power of the Maryland legislature over the new district would be strictly
limited to redistricting? Could there be language ensuring that the
District's existing home rule authority be protected? Could the very act of
redistricting produce intended or unintended substantive policy and
political inhibitions?
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H.R. 3709 specifically provides that the D.C. Home Rule Act will not
be affected. The only exception is that Maryland's statewide election laws
will control D.C.'s participation in federal elections only, and only to
the extent that such laws are not superseded by federal law. In cases where
Maryland allows discretion to its local governments in administering
federal elections, that discretion must also be allowed to D.C. The requirement
that the territory of D.C be kept intact in redistricting greatly limits
the amount of "coercion" that Maryland could apply to D.C. through the
redistricting process.
(8) Severability
Shouldn't the bill creating two new House seats for D.C. and Utah have a
clause that the bill is not severable, meaning if the D.C. portion of the
bill were found to be unconstitutional, the Utah portion also would fall,
or could Utah get a seat leaving the District with nothing?
Yes, H.R. 3709 contains such a non-severability clause.
(9) Creating a D.C.-only District
Would many of the potential problems raised by the proposal be avoided if,
instead of treating District citizens as if they were residents of Maryland
for congressional voting purposes, it simply treated the District as if it
were a state solely for voting purposes?
Attempting to create a D.C.-only congressional district by a statute
stating that the District will be considered to be a state for voting
purposes doesn't work, either politically or constitutionally.
An initial question would be whether such a proposal would include
voting rights for the U.S. Senate. If not, then D.C. residents would still
be denied their rightful Senate voting rights. If so, creating two new
U.S. Senate seats for D.C. alone, as with the Lieberman/Norton "No Taxation
Without Representation Act," is not just highly controversial, but
politically undoable. The political questions raised above about the
"Davis proposal" pale in comparison to the controversy involved in trying to
create two U.S. Senators for one smaller-than-one-congressional-district city.
But the even bigger problem is that such a proposal is simply and
clearly unconstitutional. The federal court decision (affirmed by the U.S.
Supreme Court) in the Adams v. Clinton and Alexander v. Daley cases states
emphatically, repeatedly and with overwhelming evidence that D.C. cannot
constitutionally be considered a state for the purposes of voting
representation in the U.S. Congress. On the other hand, the same decision,
through its discussion of the Organic Act of 1801 and the status of federal
enclaves, leaves open the door for Congress, as with the D.C. Voting Rights
Restoration Act, to restore rights by statute that it took away by statute.
