D.C. Voting Rights on the Horizon?

Not if the Constitution has anything to say about it, according to Professor Althouse. Constitutional deficiencies aside, today was plainly a monumental day for the D.C. voting rights movement. The Senate, as the New York Times Blog reports, voted 61-37 to pass a bill providing Washington D.C. with voting representation in the House of Representatives.

According to the Times, the measure is expected to pass in the House and be signed into law by President Obama. As they report:

The measure, if it became law, would increase the size of the House of Representatives to 437 from 435, adding not only a seat from the District of Columbia but also one from Utah. The Western seat was added in a compromise deal a few years back, to help attract Republican support and because officials contended that the state was deprived of an additional congressional district through an undercount in the 2000 Census. (Also Utah’s Republican lean would also help balance out the normally Democratic tilt of the district.)

The House has yet to take up the measure this session, but is certain to repeat its passage of the bill in previous years. (Representative Steny Hoyer, the House majority leader, indicated that his chamber would take up a similar measure next week.) And President Obama has indicated his support for giving the district representation.

This measure, however, is expected to be challenged on constitutional grounds. And you don't exactly need a J.D. to understand the argument against D.C. voting rights. As Article I, Section 2 of the Constitution provides:

The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

Since D.C. is not a "state," how could it possibly be entitled to voting rights in the House of Representatives? One obvious counterargument is that Article I, Section 8 grants Congress with plenary power to "exercise exclusive legislation in all cases whatsoever, over [the] District." Relying on this clause, a plurality of the Court, in National Mutual Insurance Co. of the
District of Columbia v. Tidewater Transfer Co., 387 U.S. 582 (1949), held that Congress was allowed to confer diversity jurisdiction to the federal courts to adjudicate federal claims between residents of the District of Columbia, and those outside the District even though the District was not a "state" under existing precedent. Id. at 590. Significantly, then, Congress was functionally able to treat D.C. as a "state" for the purposes of diversity jurisdiction despite Article III's prescription that diversity jurisdiction extend only to controversies "between citizens of different states."

Tidewater, of course, is not dispositive on the question of whether the "District Clause" gives Congress the power to grant D.C. representatives voting rights in Congress. In fact, the different opinions suggest that the Justices on the Tidewater Court would hold D.C. equivalent to a "state" (based on the "District Clause" or otherwise) only for purposes of determining federal court jurisdiction in diversity cases.

Nevertheless, given the fact that the Tidewater plurality could be read to allow for a flexible definition of "states" in the text, I'm not sure I agree with the pundits that this bill is "flagrantly unconstitutional" despite the fact that the bill could, as Professor Turley explained to The Swamp, open the door to Congressional voting rights for all U.S. Territories.