Friday, February 27, 2009

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.


  1. Let's play a game of "count the votes":
    After every Justice, I put their 'School' of thought and a brief explanation of what the likely crux of their position will be.

    Scalia: Textualist (states = states)
    Thomas: Textualist (states = states)
    Roberts: Textualist (states = states)
    Alito: Textualist (states = states)
    Kennedy: Wild-card (which way was the wind-blowing?)
    Ginsberg/G-Burg's replacement: Feel-good (which reading of A1S2 would save the orphans?)
    Stevens: Feel-good (which reading of A1S2 would seem 'fair')
    Souter: Uh... can I go to New Hampshire yet?
    Breyer: I'm NOT Souter...

    Assuming the Court didn't decide to duck the issue by claiming "non-justiciable" political question, the stat. is struck down 5-4, with the majority distinguishing "Tidewater" to its facts (or some other clever method to make it inapplicable).

    And you can take that to the bank.

  2. hahaha favorite line "can I go back to NH?"

  3. @ Master Shake --

    I agree that it's more likely than not that this will ultimately be struck down if the Court hears the matter on the merits. Of particular interest to me, is your suggestion that this may fall into the political question doctrine. The doctrine's obviously malleable, but a cursory glance at the six factors from Baker v. Carr suggests strongly that this case could be non-justiciable:

    1) Textual commitment--the District Clause could be read as a textual commitment to Congress. Of course, is this is the case, Congress's powers would be vastly unbounded.

    2) Lack of standards--Probably not relevant.

    3) Policy determination--Also probably not relevant.

    4) Respect for other branches--I could see this factoring in as with #1.

    5) Unquestioning adherence--Doubtful this would factor in.

    6) Avoid embarrassment--Hasn't really been done in this context before (so far as I know), but this could be a case where this applies based on the whole "taxation without representation" bit...

  4. You correctly state the consequences of DC representation in Congress, and that's why this is doomed to fail on Constitutional grounds. Yes, the arguments cut both ways more than people are saying, but it doesn't mean that this legislation would survive.

  5. So what are you saying 1:41? That the potentially bad consequneces should lead to a predetermined result that will perpetuate an inequity that is mired in history?

  6. @ 1:46--

    I don't think 1:41 is really saying that so much as it's implied in the comment. I disagree with you to the extent you suggest this is a bad thing. Being cognizant of the consequences of a decision is--in my view--an important component of judicial review, and one the Court should keep in mind in the (likely) event it has occasion to consider the propriety of this bill.

  7. @ Craig:
    I'm not understanding your 1:25 comment-- Your quote "The doctrine's obviously malleable, but a cursory glance at the six factors from Baker v. Carr suggests strongly that this case could be non-justiciable" has me confused vis-a-vis my comment "Assuming the Court didn't decide to duck the issue by claiming "non-justiciable" political question..." Are you agreeing that this case will probably be ruled 'non-justiciable,' or no?

    Btw-- I like the caselaw application & analysis. ::grumbling:: Show-off... :-).

  8. @ Master Shake--

    Sorry for not being entirely clear; I was agreeing with your point that the Court may just duck the issue by using the political question doctrine. What I meant when I said it was malleable is just that it's hard to predict when the Court will hold something to be a "political question" based on the relevant factors the Court looks to (per Baker v. Carr). This isn't really surprising given that all the factors could reasonably be found to be (or not be) implicated in any given case.

    Long story short: I hadn't initially thought of the Court ducking the issue altogether, and it would be interesting to see if they'd do that given the wide political appeal this movement has obtained (since the argument in favor of the bill on the merits is fairly weak...if only slightly *less* weak than people are saying).

    And thanks, as always, for the kind words!

  9. Interesting commentary

  10. Addendum:
    Here's another hurdle to clear (for all you constitutional law scholars out there):

    Who would even have sufficient standing to challenge this and get it into court? I can't seem to fabricate even a plausible hypo where this statute could be challenged (notwithstanding the PQ doctrine).

  11. @ Master Shake,

    Another interesting point. I think standing would pose a challenge, but not an insurmountable one.

    The easiest scenario I can envision would be someone challenging a statute that passes by the one (D.C.) vote added by the bill.

    Professor Turley has indicated that it is unlikely standing would prevent an Article III court from hearing this case: "My expectation is that at least one group of those plaintiffs will be found to have standing. It will be very hard for Congress to say that it can change the structure of the institution with no judicial review." See

  12. This post is asinine. A STATE MEANS A STATE. It is no coincidence that D.C. is just now getting a voting representative -- given the liberal conquest that just took place in November. Now, people like Maxine Waters are running our country, and they are about to open Pandora's box on ANY territory in the United States having a voting representative in Congress. If the founders wanted this, they would have made is explicit.

  13. @ 3:46 --

    I agree the argument against constitutionality is the stronger one; I was merely pointing out that it's not necessarily the foregone conclusion everyone's been suggesting.

  14. 3:46, I think your comment is unfair and misinformed. There are a lot of things the framers didn't contemplate.


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