BRIEF OF THE COMMITTEE FOR THE CAPITAL CITY, AMICUS CURIAE

Dated: February 8,1999

Respectfully submitted,

Lawrence H. Mirel D.C. Bar No. 159848
8120 West Beach Drive NW
Washington, DC 20012

Attorney for the Committee for the Capital

IV. CONCLUSION: RESIDENTS OF THE DISTRICT OF COLUMBIA HAVE A
CONSTITUTIONAL RIGHT TO VOTE FOR REPRESENTATWES IN THE
U.S. SENATE AND HOUSE OF REPRESENTATWES AS CITIZENS OF
MARYLAND

Cornman v. Dawson, 295 F.Supp. 654 (D. Md. 1969), affid sub nom,
Evans v. Cornman, 398 U.S. 419 (1970) 7

Goodluck v. Apache County, 417 F.Supp. 13 (D. Ariz. 1975), affd. 429
U.S. 876 (1976) 5

Act of February 27, 1801, 2 Stat. 103, ch. 15, reprinted in D.C. Code, v. 1,
p. 46, 1981 ed

An Act for Establishing the Temporary and Permanent Seat of the Government of the United States, § 1, 1 Stat. 139, ch. 28 (1790), reprinted
in D.C. Code, v. 1, p. 42, 1981 ed

District of Columbia Self-Government and Governmental Reorganization Act
Pub. L. No. 93-198, 87 Stat. 774, (1973), reprinted in D.C. Code ¤¤ 1-201
et seq

Uniformed and Overseas Citizens Absentee Voting Act of August 28, 1986,
42 U.S.C. § 1973ff

Declaration of Rights of the State of Maryland (November 8, 1776), reprinted
in D.C. Code, v. 1, p. 28, 1981 ed. 12

Act of Maryland Ratifying the Cession, Sec. 2, Md. Act of 1791, ch. 45,
reprinted in D.C. Code, v. 1, p. 35, 1981 ed 13

Act of Cession from the State of Virginia, Sec. III, Burch's Digest, p. 13,
reprinted in D.C. Code, v. 1, p. 33, 1981 ed 13

The Committee for the Capital City ("Committee") files this amicus curiae brief in support of Motions for Summary Judgment filed by plaintiffs in these actions. The Committee agrees with the constitutional arguments advanced by both sets of plaintiffs, and submits that the Court should grant immediate injunctive relief permitting District residents to vote in Congressional elections in Maryland. The Committee believes that the people of the District of Cotumbia have today, and have always had, the right to vote in elections for the U.S. Senate and House of Representatives as citizens of Maryland, notwithstanding that they have not before sought to enforce that right. Further, the Committee believes that this court has authority to order that the votes of District residents in Congressional elections be counted as part of the Maryland totals. Such a remedy is consistent with the manner in which votes are counted for all other Americans who live on land under the exclusive legislation of Congress and therefore would vindicate plaintiffs' equal protection rights. It would provide plaintiffs with the right to participate in their own governance by having voting representation in both houses of the U.S. Congress, one of the most fundamental rights in our democratic society. This is a right that has been denied only to residents of the District of Columbia, not to any other American citizens similarly situated.

Plaintiffs have raised substantial, credible claims demonstrating that the residents of the District of Columbia are being deprived of fundamental constitutional rights. From the moment the United States Constitution was ratified in June of 1788 all rights and immunities guaranteed thereby applied to every citizen living in what were then the thirteen states of the union, including those persons who lived in the portions of Maryland and Virginia which would later be ceded by those states to become the Seat of the Federal Government. Thereafter, these rights and immunities could not be stripped away except by an explicit subsequent amendment to the Constitution. No Amendment has ever been adopted which would deny the people of the District of Columbia constitutional rights enjoyed by all other Americans. Further, no legislation has been enacted by the legislatures of Maryland or Virginia or by the United States Congress purporting to strip away the right of District residents to participate in federal elections, nor could such legislation do so. Therefore, the residents of the District of Columbia, in common with all Americans, retain the rights guaranteed by the Constitution, including the right to participate in their own governance and the right to equal protection of the laws. As will be shown below District residents retain the right to vote in Congressional elections as citizens of Maryland, a right that this court is compelled by the Constitution to uphold.

The Committee for the Capital City is a civic organization comprised of citizens of the District of Columbia, Maryland and Virginia who have come together to seek full democratic rights for the people of the District of Columbia, including voting representation in both houses of the U.S. Congress. The board of directors of the Committee includes, among others, Phillip W. Buchen, White House Counsel to former President Gerald Ford; Andrew P. Miller, former Attorney General of the Commonwealth of Virginia; Betty Ann Kane, former Member of the Council of the District of Columbia; Lawrence H. Mirel, former General Counsel to the Council of the District of Columbia; and David Falk, a financial policy advisor to Maryland Governor William Donald Schaefer and former Director of the Maryland Housing Finance Agency. The Committee is a non-partisan, non-profit organization registered under section 50 1(c) (3) of the United States Tax Code.

Plaintiffs in the two cases before this court,1 all of whom are citizens of the District of Columbia, assert that the Constitution of the United States guarantees their right to participate in the election of two United States Senators and one or more Members of the United States House of Representatives.2 Plaintiffs claim that the continued denial of their right to vote in Congressional elections violates: (1) equal protection of the laws as guaranteed by the Fifth and Fourteenth Amendments to the Constitution (Adams Memorandum at 31-56; Alexander Memorandum at 22-27); (2) liberties guaranteed by the Fifth Amendment (Alexander Memorandum at 27-3 8); (3) privileges of national citizenship guaranteed by the "privileges or immunities" clause of the Fourteenth Amendment, as protected against federal intrusion by the Fifth Amendment (Alexander Memorandum at 39-41); and (4) the right to a republican form of government provided for in the guarantee clause of Art. IV, § 4 (Adams Memorandum at 5 8-76; Alexander Memorandum at 42-44).

In their supporting Memorandum, the Alexander plaintiffs assert that no structural constitutional barrier prevents them from voting in Congressional elections and that an adequate remedy can be fashioned simply by Congressional action. The Alexander plaintiffs argue that one possible remedy for the denial of voting rights is to count the votes of District voters as part of the Maryland totals. (Alexander Memorandum at 3,45-47 and 5 1-54). The Adams plaintiffs do not request and may actually oppose this remedy but nonetheless provide a persuasive argument in support. (Adams Memorandum at 37-47).

Although plaintiffs in neither case propose counting the votes of District residents with the Maryland totals as the only or best remedy (and the Adams plaintiffs, as pointed out above, do not endorse it at all) the Committee believes that it constitutes the proper solution. A careful analysis of the historical record, the precedents established for persons similarly situated to District of Columbia residents (that is, persons also subject to exclusive legislation by Congress) and the applicable constitutional principles, the Committee respectfully submits, compel this court to find that the people of the District of Columbia have the right to participate in Congressional elections as citizens of Maryland.

The Constitution provides that the House of Representatives shall be composed of Members chosen "by the people of the several states." (Art. I, § 2). The Seventeenth Amendment to the Constitution provides that the Senate shall be composed of two Senators from each state "elected by the people thereof." Defendants argue that since the District of Columbia is not a state but a federal district subject to "exclusive legislation" by Congress, the people of the District of Columbia are not entitled to vote in Congressional elections and therefore these suits should be dismissed.3 But that is not the end of the matter. There are several million people4 who currently live on land subject to "exlusive legislation" by Congress who do vote in Congressional elections, namely the people who live in the so-called "federal enclaves."5 The United States Supreme Court has said6 that these persons have a constitutionally protected right to vote in the state from which the enclave was carved.7 By the same argument, the Committee believes, people living in the District of Columbia have a constitutionally protected right to vote in Congressional elections in the State of Maryland, which is the state from which the District of Columbia was carved. Such a solution does no violence to the Constitution and has ample precedents. If the votes of District of Columbia residents are counted as part of the Maryland totals for purposes of Congressional elections they will have full and equal democratic rights, a solution fully consistent with the Constitutional principle that the Congress is comprised of representatives elected by the people of the several states.

At least two good Constitutional arguments support such a solution, either of which may lead this court to resolve the heretofore intractable problem presented by the current disenfranchisement of the people of the District of Columbia - - a situation that none of defendants argue is just.

The first argument is based on the guarantee clause of the Constitution. The land that currently comprises the District of Columbia was once part of Maryland, one of the founding thirteen states of the umon. Giving Congress "exclusive legislation" over that land did not and could not deprive the people living there at the time, and therefore those living there today, of Constitutionally guaranteed rights, including their right to participate in a republican form of government.

The second argument is based on a combined reading of the "Seat of the Government" clause and the equal protection clause of the Fourteenth Amendment. The same Constitutional provision which gives Congress "exclusive legislation" over the District of Columbia also provides that Congress shall have "like authority" over other land acquired by the federal government for federal purposes -- the federal enclaves. (Art. 1, § 8, cI. 17.) Today, all persons who live on enclaves vote as citizens of the state from which the enclave was carved. This result has come about through a series of court decisions and federal legislation8 each aimed at the same objective, i.e., to make sure that American citizens are not denied their Constitutional rights, including the right to participate in their own governance, simply because they live in places under the "exclusive legislation" of the U.S. Congress.

There is no rational basis for treating the people of the District of Columbia any differently for Congressional election purposes than people who live on the federal enclaves. Thus, to treat the people living in those places differently with regard to such a basic right must be deemed a violation of the equal protection clause of the Fourteenth Amendment to the Constitution. The state from which the present boundaries of the District of Columbia was carved is the State of Maryland. Therefore the people who live in the District of Columbia must be deemed entitled to vote in Congressional elections as citizens of that state.

1. The Creation Of The District Of Columbia On Land Ceded By Maryland Cannot Void The Guarantee Of A "Republican Form Of Government" To The People Who Live There

The guarantee clause of the Constitution provides that the "United States shall guarantee to every State in this Union a Republican Form of Government." (Art. IV, § 4, cl. 1). "Every State" as used in this provision necessarily includes the State of Maryland, a state at the time the Constitution was adopted. A "Republican Form of Government" must, at a minimum, mean that the people, through their elected Congressional representatives, participate in their own governance. In fact, the people who lived in the portion of Maryland that became the District of Columbia elected representatives to the U.S. Congress prior to and for a time after the land was ceded to the federal government.9

It must be recognized that the basic right of participation in the election of representatives to the U.S. Congress could not be stripped away from people who had been so entitled by simple legislation or by court decree, for the right was guaranteed to them by the Constitution.10

The Supreme Court has recognized this Constitutional imperative when considering other fundamental rights. For instance, when considering whether the salaries of judges duly appointed to the Superior Court of the District of Columbia and the Court of Appeals of the District of Columbia were protected by provisions found in Article III, the Court stated:

O'Donoghue v. United States, 289 U.S. 516, 540 (1933) (emphasis added). The Court also quoted at length an earlier statement it made on this point, as follows:

[The District of Columbia] had been a part of the states of Maryland and Virginia. It had been subject to the Constitution, and was a part of the United States. The Constitution had attached to it irrevocably. There are steps which can never be taken backward. The tie that bound the states of Maryland and Virginia to the Constitution could not be dissolved, without at least the consent of the Federal and state governments to a formal separation. The mere cession of the District of Columbia to the Federal government relinquished the authority of the states, but it did not take it out of the United States or from under the aegis of the Constitution. Neither party had ever consented to that construction of the cession. If, before the District was set off, Congress had passed an unconstitutional act affecting its inhabitants, it would have been void. If done after the District was created, it would have been equally void; in other words, Congress could not do indirectly, by carving out the District, what it could not do directly. The District still remained a part of the United States, protected by the Constitution. Indeed, it would have been a fanciful construction to hold that territory which had been once a part of the United States ceased to be such by being ceded directly to the Federal government.

O'Donoghue v. United States, at 541, quoting Mr. Justice Brown in Downes v. Bidwell, 182 U.S. 244, 260-261 (1901) (emphasis added).

No legislation has been enacted by Congress or by the Maryland legislature denying the people of the District of Columbia their right to continue to vote as citizens of Maryland.11 Even if Congress believed that it had the authority under its "exclusive legislation" powers in Art. I, § 8, cl. 17 12 to enact legislation denying people in the former Maryland territory the right to vote for representatives to the national legislature, it has not done so. In fact, the historical record indicates that Congress was concerned with preserving rights these people had as citizens of Maryland and so it took steps to ensure the rights were not destroyed. One need look no further than the Act of February 27, 1801 (2 Stat. 103, ch. 15, reprinted in D.C. Code, v. 1, p. 46) which established the first government for the new federal District to understand Congressional concerns. This statute is often cited as the legislation that made the people living in the District of Columbia no longer citizens of Maryland or Virginia and therefore no longer entitled to vote in those states. Section 1 thereof states, however:

[T]he laws of the state of Virginia, as they now exist, shall be and continue in force in that part of the District of Columbia, which was ceded by the said state to the United States, and by them accepted for the permanent seat of government; and that the laws of the state of Maryland, as they now exist, shall be and continue in force in that part of the said district, which was ceded by that state to the United States, and by them accepted as aforesaid. (emphasis added)

Among the laws that then existed in Maryland 13 were election laws governing how representatives to the U.S. House of Representatives 14 were chosen. 15 As noted, Congress has never enacted legislation that repealed or superseded those Maryland laws,16 and therefore still apply -- by the express terms of teh Act of 1801 establisihng theDistrict's local governance - - to those persons living in that portion of the State of Maryland that was ceded to the federal government for purposes of creating a federal "Seat of the Government." 17

All that was ceded to the federal government by Maryland and Virginia, and all that the Constitution provides for, is "exclusive legislation" by Congress over the ceded lands. That means -- and can only mean, given the explicit language of the Act of 1801 quoted above -- that Congress could enact any otherwise constitutional laws it deemed necessary for the District of Columbia, and that such laws would supersede and preempt existing laws of those jurisdictions. Further, pursuant to Section 1 of the Act of 1801 unless the laws of those jurisdictions were superseded or preempted they would continue to apply to the people living in the ceded land.18

Since Congress has taken no action to repeal or modify the right that persons living in the District of Columbia formerly enjoyed to vote for Maryland representatives to the national legislature,19 and since the right to a republican form of government is guaranteed by the United States to the states, of which the current land of the District of Columbia was part when the Constitution was adopted, it follows that the people living on the land ceded by Maryland are still entitled to vote for national legislators with Maryland. Nor is it too late, under any statute of limitations or the doctrine of laches,20 for persons who now live in the District of Columbia to seek court enforcement of these rights which have lain dormant for almost 200 years, since they ivolve one of the most basic rights of citizens, namely the right to participate in their own governance.21

2. The "Like Authority" Constitutional Provision And The "Equal
Protection Of The Laws" Provision, Read Together, Require That
Residents Of The District Have The Same Voting Rights For National
Legislator_As People Living In Federal Enclaves, Namely The Right
To Vote With The State From Which The Territory Was Carved

Two separate Constitutional provisions, read together, also lead to the conclusion that the people of the District of Columbia are entitled to vote with Maryland in Congressional elections.

As noted above, Art. I, § 8, cI. 17 gives Congress "exclusive legislation" over "such District ... as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States ...." The provision goes on to say that Congress is authorized

The Fourteenth Amendment to the Constitution provides that no state may deprive any person of the equal protection of the laws. Since a body of law now exists relating to voting rights in the "federal enclaves," an analysis of that law serves to inform

The starting point for any discussion of voting rights in the federal enclaves is the Supreme Court decision in Evans v. Cornman, 398 U.S. 419 (1970). There, a unanimous Court held that persons living on the campus of the National Institutes of Health ("NIH") in Bethesda, Maryland, cannot be denied their right to participate in Maryland elections notwithstanding that Congress has "exclusive legislation" over the National Institutes of Health.

In Evans the voter registration board of Montgomery County, Maryland, had refused to register persons who lived on the NIH campus on the ground that they did not meet the residency requirements for voting in Maryland because they lived on a federal enclave. The Court rejected that argument, saying:

The Court next went through a balancing test to determine if the people living on the NIH campus were affected substantially enough by electoral decisions to warrant their participation as electors, and concluded:

In nearly every election, federal, state, and local, for offices from the Presidency to the school board and on the entire variety of other ballot propositions, appellees have a stake equal to that of other Maryland residents. As the District Court concluded, they are entitled under the Fourteenth Amendment to protect that stake by exercising the equal right to vote. (Evans at 426)

The "interest analysis" undertaken by the Supreme Court in Evans has particular resonance for the residents of the District of Columbia. Congress governs the District both in its capacity as the federal legislature and as the ultimate local legislature. 23 The fact that District residents have been granted limited "home rule" gives them no less interest in Congressional elections. Congress retains the power of final approval over the District's annual budget and the power to prevent local legislation from going into effect. Moreover, Congress has not hesitated to exercise its reserved authority.24 When it comes to participation in their own governance, therefore, nothing is of more interest to the people of the District of Columbia than electing voting representatives to the Congress.

It is true that some of the indicia used by the Court to find the necessary electoral interest on the part of the NIH residents do not apply to residents of the District of Columbia, such as the application of state criminal laws, the levying and collection of state income taxes, etc. In neither pending suit, however, do plaintiffs ask, nor does the Committee,25 that District residents be given the right to vote in Maryland state elections.26 As to U.S. Congressional elections, however, residents of the District of Columbia "have a stake equal to that of other Maryland residents," since they, like the residents of Maryland, are subject to the laws made by the U.S. Congress.27

Therefore, according to the reasoning the Court used in the Evans case, denying to the people of the District of Columbia the right to vote with Maryland -- the state from which the land of the District was ceded to federal control -- on the purported ground that they do not meet Maryland residency requirements would violate their equal protection of the laws. As to their right to vote for Senators and Representatives in the U.S. Congress, their interest is identical to other Maryland residents, and certainly identical to the interests of all persons who vote in Maryland who live on federal enclaves that have been ceded to the federal government of Maryland.28 Unless there is a compelling state interest, when a group of otherwise qualified citizens has the right to vote and another group, similarly situated, is denied that right, there is a violation of the equal protection provision of the Fourteenth Amendment. Kramer v. Union School District, 395 U.S. 621, 627, (1969). No compelling state interest exists for treating the residents of the District of Columbia differently from persons who live on federal enclaves for purposes of voting in Congressional elections. Thus, the current denial of the right of District residents to vote for members of the United States Senate and the House of Representatives is unconstitutional.

Although states set the voting rules for their elections, including elections for representatives to the U.S. Congress, there is no doubt that federal courts have jurisdiction to order that such elections be held in accordance with constitutional principles, and in particular that they be held in ways that do not deprive persons who are entitled to vote of their right to cast their ballots.29 Moreover if states refuse to provide for, or count, votes that they are required by federal law or judicial decision to count, federal officials may be authorized and required to count such votes.3 For example, Congress itself set up a program under which a federal official was to be designated by the President to secure and count, as part of a state's total election results, the votes of overseas uniformed services voters and their dependents and other American overseas voters in elections for federal officials. See The Uniformed and Overseas Citizens Absentee Voting Act ,42 U.S.C. §1973ff.31

This court may, therefore, by way of providing for the right of District of Columbia citizens to participate in Congressional elections, order that

Among the "self-evident Truths" described in the Declaration of Independence is that "Governments ... deriv[e] their just Powers from the Consent of the Governed...." For almost 200 years the people of the District of Columbia have been governed without their participation or consent by a Congress in which they have no voting representation. There is near universal agreement that the people who live in the capital city of the United States are entitled to elect representatives to the national legislature, just as the people living in the capital cities of every other democratic country in the world. The only reason they do not enjoy those rights today is that they are not treated as citizens of a state, and the Constitution provides that only states elect representatives to the U.S. Congress. That hollow argument should not be allowed to deprive the people of the District of their right to equal participation in the national legislature. Congress and the courts have found that persons living on Indian reservations, on military bases, on Federal parks, even Americans living overseas, can vote as citizens of a state. This is true notwithstanding that the states in which they vote have only limited or no authority over the territory where they live, and notwithstanding that several million of these people live on territory under the "exclusive jurisdiction" of Congress. Only the people of the District of Columbia are excluded. Based on the Constitutional provisions analyzed above, the Committee for the Capital City urges this Court to find not only that District residents are entitled to vote in Congressional elections, but to issue an Order which implements that right.

Dated: February 8,1999

Respectfully submitted,

Lawrence H. Mirel
D.C. Bar No. 159848
1614 Twentieth Street, N.W.
Washington, D.C. 20009
(202) 265-8017

Attorney for COMMITTEE FOR THE
CAPITAL CITY

1) 'Plaintiffs in Adams, et al., v. Clinton, et al., Civil Action No. 98-1665 (hereinafter Adams), filed a Memorandum of Points and Authorities in Support of Motion for Summary Judgment (hereinafter Adams Memorandum) on December 22, 1998. Plaintiffs in Alexander etal. v. Daley, et al., Civil Action No. 98-2 187 (hereinafter Alexander), filed a Memorandum of Points and Authorities in Support of Motion for Summary Judgment (hereinafter Alexander Memorandum) on November 16, 1998. All plaintiffs in the two cases will be referred to collectively as "plaintiffs".

2) Plaintiffs in the Adams suit claim other rights as well, but the Committee takes no position with regard to those claims.

3) See Memorandum in Support of Motion to Dismiss Plaintiffs' Claims filed in Adams on September 18, 1998, by defendant President William Jefferson Clinton; Memorandum of Points and Authorities in Support of the Motion to Dismiss filed in Alexander on December 18, 1998, by defendant Robin H. Carle, et al; and Memorandum on Behalf of Secretary Daley and the United States in Opposition to Plaintiffs' Motion for Summary Judgment filed in Alexander on December 18, 1998.

4) The federal enclaves consist of several thousand separate parcels of land purchased by or ceded to the federal government by the states in which they are located. Such land may collectively comprise as much as 35% of the total land area of the United States, and as many as 3 million people live on those enclaves. See Adams Memorandum, pp. 38, 51, and sources cited therein.

5) The federal enclaves are those places described in the latter half of Art. 1, § 8, cl. 17, as "Forts, Magazines, Arsenals, dock-Yards and other needful Buildings." Federal enclaves also include the national parks.

7) Another group of Americans who live on land subject to the jurisdiction of Congress, and not of the states from which that land was carved (except insofar as Congress has delegated its exclusive authority) are Native Americans who live on reservations. Congress has jurisdiction over the Indian Reservations by virtue of Art. I, § 8, cI. 3 of the Constitution -- the same Article and section, although a different clause, that give Congress exclusive jurisdiction over the District of Columbia and the federal enclaves. With passage of the Citizenship Act in 1924 all Native Americans living on reservations were granted U.S. citizenship and the right to vote as citizens of the states from which their respective reservations were carved (see 8 U.S.C. § 140 1(a)(2)). Thus, Native Americans cannot be denied full rights as citizens even though they are not subject to state taxes and despite the language of the Fourteenth Amendment excluding from legislative apportionment "Indians not taxed." Goodluck v. Apache County, 417 F.Supp. 13 (D. Ariz. 1975), affd. 429 U.S. 876 (1976).

8) For court decisions, see Cornman v. Dawson, 295 F.Supp. 654 (D. Md. 1969), aff'd sub nom Evans v. Cornman, 398 U.S. 419 (1970); Fort Leavenworth R. Co., v. Lowe, 114 U.S. 525 (1885); Howard v. Commissioners of Sinking Fund, 344 U.S. 624 (1953); Paul v. United States, 371 U.S. 245 (1963). For legislation, see 4 U.S.C. §§ 104-110; 10 U.S.C. § 2667(e); 16 U.S.C. § 467; 18 U.S.C. § 13; 20 U.S.C. §§ 236-244 and §§ 63 1-645; 23 U.S.C. § 105; 26 U.S.C. § 3305(d); and 40 U.S.C. §§ 255 and 290.

9) Maryland ceded land that became part of the District of Columbia to the federal government in 1788, see Maryland Act of December 23, 1788, ch. 46, reprinted in D.C. Code, v. 1, p. 33. Congress accepted this (and Virginia's) cession by the Act of July 16, 1790, see Ch. 50, 1 Stat. 130. Maryland ratified the cession in 1791, see 2 Kilty Laws of Maryland, ch. 45 (1791), reprinted in D.C. Code, v. 1, p. 34. Thus, the transfer of jurisdiction over what is now the District of Columbia from Maryland to the federal government was complete in 1791. Nonetheless, four years later a Mr. Uriah Forrest of Georgetown, in the District of Columbia, was elected to the Third Congress (March 4, 1793 to March 3, 1795) as a Maryland Representative. See S. Doc. No. 8, 92nd Cong. 1st Sess. (1971) (Biographical Directory of the United States Congress, 1774 -1971) at 55, 960. Further, historical records indicate that Congressman Forrest's only residences at the time were located in the District of Columbia. See Adams Memorandum at 22.

10) Defendants have argued that guarantee clause issues are nonjusticiable and cite a number of cases so holding, in particular Baker v. Carr, 369 U.S. 186 (1962). In at least one post Baker v. Carr case, however, the Supreme Court has suggested that not all guarantee clause matters are nonjusticiable. See New York v. United States, 505 U.S. 144, 185 (1992). Additionally, the Supreme Court has held that the Constitutional grant of plenary power under Art. 1 §8, cI. 3, as regards Indian affairs, "does not mean that litigation involving such matters necessarily entails nonjusticiable political questions." County of Oneida v. Oneida Indian Nation of New York Sate, 470 U.S. 226, 249 (1984) (citations omitted). See also the Adams Memorandum, pp. 75,76 and App. 1 which effectively challenges the assertion that guarantee clause issues are necessarily nonjusticiable.

The instant case demonstrates quite clearly that, where the affected citizens who seek a judicial remedy have no voting representation in the body that governs them, it is meaningless to say that the solution to their guarantee clause claim is the political process. Simply put, these citizens have no voice in that process and so they are reduced to relying on the benevolence of legislators who do not represent them and who must be responsive to their own constituents. Further, the problems of even pursuing a judicial solution to a guarantee clause claim when the plaintiffs are disenfanchised is illustrated by a law enacted last year which prohibits the District of Columbia from expending any funds to pursue this lawsuit. See D.C. Appropriations Act, 1999, § 151, Pub. L. 105-277. __ Stat.__. See also Alexander Memorandum, App. C, item no. 1.

11) "Albaugh v. Tawes, 233 F.Supp. 567 (D. Md. 1964), aff'd 379 U.S. 27 (1964), cited by defendants Robin H. Carle et al. in their Motion to Dismiss (p. 5) for the proposition that the residents of the District are not citizens of Maryland, is a fragile reed to rely upon for denying the people of the District their right to be represented in Congress. Mr. Albaugh was not a resident of the District of Columbia and lacked standing to bring his pro se action, purportedly on behalf of District of Columbia residents. 223 F.Supp. at 476-77. Moreover, the decision of the three-judge district panel in that case is not binding on this court and the U.S. Supreme Court affirmed the decision without opinion, and therefore it must be viewed as only affirming the result of that decision.

12) Article I, § 8, cI. 17 provides Congress with 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, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

That portion of clause 17 preceding "and to exercise like authority" is commonly referred to as the "District Clause" while the remainder is commonly referred to as the "Enclave clause."

13) The issues were no different for people living in the portion of Virginia that was ceded to the federal government, who were still subject to Virginia law, but since that portion of the District was returned to Virginia in 1846 the matter is moot as to them.

14) Senators were not chosen by vote of the people until the Seventeenth Amendment was adopted in 1913. Prior to that time Senators were elected by the legislatures of the separate states, as provided by Art. I, Sec. 3 of the Constitution.

15) The Constitution does not set rules for the election of persons to Congress. Instead, it simply requires that "electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature." Art. I, Sec. 2. Thus it is left to state law to determine how such representatives are to be elected. In Maryland, voter qualifications are set forth in Art. 1, § 1 of the Maryland Constitution, and in Md. Code Ann. Art. 33, §3-4 (1997). These provisions and their predecessors are the laws that were specifically "continue[d] in force" in the portion of the District that was ceded by Maryland.

16) It should be noted that Clause 18 of Art. 1, § 8, which follows the provision containing the District and Enclave Clauses (Art. 1, § 8, cl. 17) provides that Congress shall "make all Laws, which shall be necessary and proper for carrying into Execution, the foregoing Powers ...." The necessary concomitant of that provision is that unless Congress enacts implementing laws it must be assumed that such laws are not necessary or proper to carry out the authority given Congress by Art. 1, § 8. Since Congress has enacted no laws that would deprive the people of the District of Columbia of their right to elect representatives to the national legislature -- a right they formerly enjoyed and exercised as citizens of Maryland -- there is no basis for arguing that the power of "exclusive legislation" over the District requires such disenfranchisement even if it were otherwise Constitutionally permissible. (See County of Oneida v. Oneida Indian Nation, supra note 10.) This accords with the Ninth Amendment to the Constitution, which provides that "[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." If the Constitution gives the Congress the right of "exclusive legislation" over the District of Columbia and Congress makes no law denying those
persons the right to participate in their own governance through voting for national legislators, they must retain those rights.

17) Whenever there is a transfer of legislative jurisdiction from one sovereign authority to another, the tradition in Anglo-Saxon jurisprudence is that the laws of the former sovereign continue to apply until changed. Clearly this is necessary for good order and to ensure that individual legal rights are not lost. See e.g., the original Declaration of Rights of the State of Maryland (November 8, 1776), reprinted in D.C. Code, v. 1, p. 28, 1981 ed., provides in Sec. 3:

The inhabitants of Maryland are entitled to the common law of England ... and to the benefit of such of the English statutes as existed at the time of their first emigration ... and such others as have been since made in England or Great Britain ... except such as may have since expired, or have been, or may be altered by acts of convention, or this declaration or rights; subject nevertheless to the revision of, and amendment or repeal by the legislature of this state.

(This provision was modified and renumbered as Section 5 in Maryland's Declaration of Rights found in the State's Constitution of 1867, as amended.)

Consequently the transfer of "exclusive legislation" to the U.S. Congress surely meant to transfer no more than the right to alter laws then in force. There are, in fact, ancient laws of England currently in force in the District of Columbia, having devolved through the Maryland law and not having been changed. See, for example, 52 Act of Henry III (1267), codified at D.C. Code § 14-1202, or 6 Act of Edward 1(1278), codified at D.C. Code § 45-120 1. For a complete list of such old laws still in force (most of which, not surprisingly, concern property rights), see D.C. Code, v. 11, p. 75.

18) Both Virginia and Maryland, in the acts of cession of territory for the new federal District adopted by their legislatures, specilically provided that nothing in the legislation would "affect the rights of individuals therein, otherwise than the same shall or may be transferred by such individuals to the United States." See Act of Cession from the State of Virginia, Sec. III, Burch's Digest, p. 13, reprinted in D.C. Code, v. 1, p. 33, and Act of Maryland Ratifying the Cession, Md. Acts of 1791, ch. 45, Sec. 2, reprinted in D.C. Code, v. 1, p. 35. It has been shown that such rights included the right to vote in national elections and to be represented in the national legislature, unless such rights were voluntarily given up by those individuals (see note 9, supra). There is no record that the individuals concerned formally foreswore such rights.

19) This is unlike the situation with regard to the vote for President. The Congress enacted a Constitutional Amendment, later ratified by the states, providing for participation by the people of the District of Columbia in the election of the President of the United States. (Amendment XXIII). It is arguable, therefore, that Congress used its "exclusive legislation" authority, upon state ratification, to supersede or preempt the right the people living in the ceded land once had to participate as Maryland citizens in the election of the President.

20) See e.g. County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 244-45 and note 16 (1984), which allowed an Indian land claim based on treaty rights to be prosecuted more than 200 years after it ripened even though the outcome could affect long-settled property rights of innocent purchasers of land.

21) Reynolds v. Sims, 377 U.S. 533, 554 (1964) ("The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of a representative government."); Wesberry v. Sanders, 376 U.S. 1, 17-18 (1963) ("No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.") and Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) ("[Political franchise] is regarded as a fundamental political right, because [it is] preservative of all rights.")

22) The Fourteenth Amendment, of course, was not yet a part of the U.S. Constitution at the time the District was created. The absence of that Amendment, or of any other avenue for seeking judicial review, may explain why early defenders of the voting rights of District of Columbia residents did not seek relief from the courts. Only in the present century, with the development of case law under the Fourteenth Amendment and with the availability of federal actions under 42 U.S.C. § 1983 and other federal statutes, have citizens increasingly turned to the courts for vindication of their voting rights. For a thorough discussion of the development of voting rights in the United States, see Alexander Memorandum at App. A.

23) "Over this District Congress possesses 'the combined powers of a general and of a state government in all cases where legislation is possible."' O'Donoghue v. United States, 289 U.S. 516, 539, quoting Stoutenburgh v. Hennick, 129 U.S. 141, 147 (1889).

24) The Alexander plaintiffs provide a selected listing of Congressional actions affecting issues typically addressed by non-federal legislative bodies, including public schools, child custody proceedings, health care and criminal sanctions. See Alexander Memorandum, App. C. For a detailed, if somewhat dated, discussion of Congressional intervention in typically local matters, see Philip G. Schrag, The Future of District of Columbia Home Rule, 39 Cath. U.L. Rev. 311 (1990).

25) In the Adams complaint the court is not asked to provide voting rights at all, but merely to declare that the current situation is unconstitutional.

26) Congress has created in the District of Columbia a municipal government which is authorized to perform functions typical of other municipalities as well as some functions typically performed by states. See, District of Columbia Self-Government and Governmental Reorganization Act Pub. L. No. 93-198, 87 Stat. 774, (1973), D.C. Code §§ 1-201 etseq.

27) Resident of the District of Columbia do not "have a stake equal to that of other Maryland residents" in Maryland state elections because they are not subject to laws enacted by the Maryland legislature. No such argument, however, can be made with regard to federal elections. District residents are subject to federal laws of general applicability in exactly the same way as are the residents of Maryland, and therefore are entitled equally to participate in the enactment of such federal laws through having voting representation in the body that makes those laws, the U.S. Congress.

28) Maryland law explicitly recognizes the possibility of "full or partial concurrent jurisdiction" between the state and the federal government in a statute which predates the Evans v. Cornman decision. Section 14-102(c) of the State Government Article of the Maryland code provides in relevant part:

In Hunsford v. District of Columbia, 329 Md. 112, 617 A.2d 1057 (1993), the Maryland Court of Appeals held that the exclusive federal legislative authority over an enclave (here a juvenile detention facility operated by the District of Columbia) did not restrict personal jurisdiction of the Maryland courts over the defendants (including the District Government) nor prevent the application of Maryland tort law as it existed at the time, rather than the tort law existing at the time of the cession of legislative jurisdiction over the land ceded to the federal government.

30) The Committee believes that cooperation between the relevant officials in Maryland and the District of Columbia will be such that no appointment of a federal official will prove necessary and certainly no appointment is necessary at this time.

31) When Congress passed this legislation it considered a recommendation that "States allow qualified absentee voters to acquire legal residence, regardless of their residence on a military installation, and to vote in local, State, and national elections." However, this recommendation was deemed unnecessary because of the Supreme Court's decision in Evans v. Cornman, supra. See, H. Rept. No. 99-765,99th Cong. 2d Sess. (August 7, 1986) at 18.