Big step to DC statehood today

This is a big step toward the District of Columbia becoming a state:

Today, in a vote of 62-34, the United States Senate voted for cloture on the DC House Voting Rights Act (H.R.157/S.160). After a centuries-long struggle, DC residents have overcome a significant hurdle in their fight for voting representation in Congress.

"Congress truly made history today," said Ilir Zherka, DC Vote Executive Director. "Not since the 1970's has a piece of DC voting rights legislation made it to the floor of the Senate. After years of protests, marches and calls to Congress, District residents are finally on their way to having their voices heard."

..."Victory is so close on this issue but the fight's not over yet," said Zherka. "There has been a lot of discussion about possible amendments to the Senate bill. We are calling upon the Senate to pass this bill without amendments."

DC Vote's mission is full congressional voting representation for District residents. Next on the group's agenda is working towards full democracy for DC.

"We will certainly be celebrating once the DC Voting Rights Act is passed," Zherka emphasized. "It will be a momentous win. But then, it's on to the business of defending any legal challenges to the legislation and looking towards future victories such as Senate representation and broader, local autonomy for the District."

The 'solution' is sorta a cut-the-baby-in-half one. DC gets a single Rep in the House, and one more is added, which goes to Utah and the GOP. But the issue of whether this is constitutional is a pretty big one-- since when do places that are not states have Congressional representation?

It will go to the courts, and I would not be shocked to see it reversed; because its not really that great of a precedent, and it doesn't really entirely solve the problem.  If that happens, then it will go back to Congress, and force the issue of statehood-- which it should.

Tags: Columbia, DC Vote (all tags)

Comments

34 Comments

Unconstitutional

As much as this is a good thing, this thing is so unconstitutional I can't even think of a counter argument.  Is there one?

by DaveOinSF 2009-02-24 10:11AM | 0 recs
Re: Unconstitutional

It's the same sort of warped 'pragmatism' that brought us Gore vs Bush 5-4. Basically (from the Republican viewpoint) that giving this is better than DC getting statehood; from the DC Vote perspective, its just an incremental victory.

by Jerome Armstrong 2009-02-24 10:35AM | 0 recs
Re: Unconstitutional

The question is whether passing this law brings us closer to the situation where DC has voting representation.  I think all this does is just delay for a couple of years the ability to pass a constitutional amendment.  The makeup of the COngress is about as favorable as it ever will be for getting 2/3 of each house in favor of an amendment and wasting time on a clearly unconstitutional legislative effort wastes a rare opportunity.

by DaveOinSF 2009-02-24 10:38AM | 0 recs
Re: Big step to DC statehood today

It's worth noting that Ken Starr has written in support of the view that this legislation is perfectly constitutional.  Conservative superstar Viet Dinh of Georgetown Law and the Bush DOJ takes the same view.  So it's clear there's a legal argument in favor of this bill that isn't simply grounded in partisanship.

This is simply a warning to beware of anonymous people on the Internet, many of whom lack any legal training whatsoever, who will assure you that this law is "obviously" unconstitutional simply because they feel it is.  It's a tougher question than that.

by Steve M 2009-02-24 10:14AM | 0 recs
Re: Big step to DC statehood today

I'm curious as to what the pro-constitutional argument would be.  I have to say that I don't really see it, much as I would like DC to have full representation.

by rfahey22 2009-02-24 10:30AM | 0 recs
Re: Big step to DC statehood today

I think it's based on the theory that Congress' legislative authority over the District gives them the power to do so.  If that were true, why don't they grant the District 100 representatives and a dozen Senators?

by DaveOinSF 2009-02-24 10:33AM | 0 recs
Re: Big step to DC statehood today

I've seen a flavor of that argument in the DKos threads.  My personal opinion is that it contradicts the constitutional text as well as historical practice.  Though, I wonder if Starr and the rest have some other arguments in mind.

by rfahey22 2009-02-24 10:34AM | 0 recs
Re: Big step to DC statehood today

Because the members of Congress would never vote to so weaken their relative representation.  Plus, under the Constitution H of R representation has to be proportional to population.  Given DC's population, they could not be granted more than 1 rep unless the entire House were drastically expanded (which it probably should be).

by LanceS 2009-02-24 10:36AM | 0 recs
Re: Big step to DC statehood today

But if Congress has authority over the DIstrict, they could just pass whatever they wanted.  They could appoint people who they trusted to represent the District.  You can't apply one constitutional formula while ignoring another one.

by DaveOinSF 2009-02-24 10:40AM | 0 recs
not really

The Constitution requires  "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States"

All one has to do is say that DC residents are "People of the several States" as in fact they are considered to be in numerous other parts of the Consitution.

In fact, it's quite noticeable that the language in Section 2 describing the House is different from the language in Section 2 describing the Senate.

by John DE 2009-02-24 10:55AM | 0 recs
Amendment 23


Amendment 23
A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State,

Explicit acknowledgment that the District is not a state is not entitled to those Representatives and Senators.

by DaveOinSF 2009-02-24 10:57AM | 0 recs
so what?

You only prove DC did not have a Rep and two Senators in the 20th Century.  That's not under dispute.

The point is not to pretend that DC has had an invisible Representative in history, but that Congress has the power to allow DC to elect a Rep.  Indeed, this claim is consistent with their not having two Senators.

by John DE 2009-02-24 11:06AM | 0 recs
Re: so what?

No it clarifies that DC was not entitled to a Rep or Senators because it's not a state.  I also find it amusing that, if DC does get a Rep, would they lose two electoral votes?

by DaveOinSF 2009-02-24 12:08PM | 0 recs
Re: not really

And the distinction "people of the several states" vs. "each state" was because the framers mandated that the House be done by popular vote, ergo, "the people".

by DaveOinSF 2009-02-24 11:01AM | 0 recs
Re: not really

Which, says Dinh, includes the people of DC, if (but only if) Congress so chooses.

So the real problem with this bill is that a Republican supermajority could repeal it if they so chose.  That is a reason why a constitutional amendment may be more helpful, but is not necessary.

by ajwagner 2009-02-24 11:09AM | 0 recs
Re: not really

What I meant by "not necessary" is that it's not necessary to give DC representation for now.

But maybe it is necessary to be truly and permanently fair.  

by ajwagner 2009-02-24 11:13AM | 0 recs
Re: Big step to DC statehood today

What's the argument against?  That DC isn't a state?  As Ken Starr notes (his legal analysis can be found here, the courts have upheld countless laws that treat DC as a "state" for constitutional purposes.  I frankly find his argument pretty persuasive, but it's certainly a debatable point at a minimum.

by Steve M 2009-02-24 10:36AM | 0 recs
Re: Big step to DC statehood today

How can you (or Starr) say that DC doesn't get 2 Senators then as well?

by Jerome Armstrong 2009-02-24 10:38AM | 0 recs
Re: Big step to DC statehood today

I'm not sure whether there's a constitutional distinction or not, but the short answer to your question is that even under Starr's interpretation, representation for DC is something that Congress CAN confer if it chooses to, not something that the residents of DC are entitled to under the Constitution.  So Congress is perfectly free to tell DC "we're going to treat you like a state for this purpose, but not for these other purposes" - in fact, they've done that numerous times in the past.

by Steve M 2009-02-24 10:56AM | 0 recs
RTFA

Starr argues that Congress has the power to make "legislation to enfranchise the District's voters."  That does no mean that they must give Senators.

by John DE 2009-02-24 10:59AM | 0 recs
Re: Big step to DC statehood today

Starr doesn't touch on the Senate issue.  

Dinh's argument on why they couldn't get Senators goes back to the original Constitution, pre-17th amendment.  He argues that Representatives in the House were elected by the people, to represent the people.  Therefore, the people in DC should get a representative too.  

On the other hand, he says, Senators were elected by the state governments to represent the interests of the states "as states."  And the whole point of having a District of Columbia (as opposed to having Washington be just another city in Maryland which happens to host the federal government, is that it's not a state.  

He says that with the addition of the 17th amendment the picture is a little less clear but declines to elaborate further.  

by ajwagner 2009-02-24 11:02AM | 0 recs
Re: Big step to DC statehood today

So in your opinion, the 23rd Amendment was uneccessary then?

by DaveOinSF 2009-02-24 10:42AM | 0 recs
Re: Big step to DC statehood today

Are you under the impression that I actually am Ken Starr?  Here's what Viet Dinh has to say about the 23rd Amendment:

Opponents of District representation argue that the enactment of the [23rd] Amendment demonstrates that any provision for District representation must be made by constitutional amendment and not by simple legislation. The existence of the 23rd Amendment, dealing with presidential elections under Article II, has little relevance to Congress' power to provide the District with Congressional representation under the District Clause of Article I. Not only does the Constitution grant Congress broad and plenary powers to legislate for the District by such clause, it provides Congress with sweeping authority "[t]o make all Laws which shall be necessary and proper for carrying into Execution" its Article I powers. The 23rd Amendment, however, concerns the District's ability to appoint presidential electors to the Electoral College, an entity established by Article II of the Constitution. Congressional authority under Article II is very circumscribed--indeed, limited to its authority under Article II, § 1, clause 4, to determine the day on which the Electoral College votes. Because legislating with respect to the Electoral College is outside Congress' Article I authority, Congress could not by statute grant District residents a vote for President; granting District residents the right to vote in presidential elections of necessity had to be achieved via constitutional amendment. By contrast, providing the District with representation in Congress implicates Article I concerns and Congress is authorized to enact such legislation by the District Clause. Therefore, no constitutional amendment is needed, and the existence of the 23rd Amendment does not imply otherwise.

Buy the argument or not, as you choose, but I do think you're going a little over the top when you thunder that the law is "clearly" unconstitutional.  I mean, if the courts ultimately uphold it, as they might, I hope you won't be going all John Brown on us.

by Steve M 2009-02-24 11:00AM | 0 recs
Re: Big step to DC statehood today

Starr's argument is interesting, and I would have to read the cases, but as summarized they do not appear to provide any clear conflict between the Seat of Government Clause and any other constitutional provisions, as would seem to be the case here.  Art. I, s. 2 provides that "[t]he House of Representatives shall be composed of members chosen every second year by the people of the several states ..."  This appears to be an automatic requirement, and the fact that DC has not had representation for 220 years strongly suggests that it is not a "state" for these particular purposes.  

Furthermore, Art. I, s. 8 authorizes Congress "[t]o 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 ..."  So, we have DC characterized as territory that was ceded by the "states" to the federal government.  

I guess one could argue that Art. I, s. 2 does not limit those who may serve in the House merely to delegates from the "states."  That seems like a strange reading to me, though.  You could also argue that the Seat of Government Clause allows Congress to do an end-run around Art. I, s. 2.  But, when you have a fairly specific constitutional provision in conflict with a more general and vague provision, I think generally the more specific provision is read as limiting the scope of the general provision.  Anyway, we'll probably find out at some point.  

by rfahey22 2009-02-24 11:01AM | 0 recs
Re: Big step to DC statehood today

I don't think anyone can claim that Art. I, s. 2 was explicitly intended to exclude DC, as DC didn't exist at the time.  So I think Starr has a fair point when he says you shouldn't read it as a conflict, just as an ambiguity that Congress has the authority to resolve through legislation.

Let's put it this way: if I'm a betting man, my money says that the courts will ultimately uphold this legislation, but I wouldn't put my life savings on it.

by Steve M 2009-02-24 11:44AM | 0 recs
Re: Big step to DC statehood today

I guess I would bet 55/45 the other way, though not for any real money.  :)  Art. I, s. 8 refers to what would later become the District of Columbia and seemingly portrays it as a small territory under federal rule, so it's difficult for me to imagine the founders elevating DC's status to that of a state's, and I do think that DC's treatment with respect to this issue over the past two centuries must also bear on the analysis (it's sort of analogous to Congress's treaty power, which is not constrained by any constitutional text but which has been interpreted as being constrained by the Bill of Rights, etc.).  It's an interesting question, though.  Ultimately it would probably be best to amend the Constitution to grant DC the full rights of statehood in order to prevent repeal of this legislation, were it deemed to be constitutional.

by rfahey22 2009-02-24 12:31PM | 0 recs
How Many States Are There?
     Lincoln is supposed to have asked, "How many legs does a lamb have, if you call a tail a leg?"
     The answer is four. Calling a tail a leg does not make it one.
     Since when do Republican hacks like Kenneth Starr or Viet Dinh have any credibility with our side on matters of Constitutional law?
     Everybody with the slightest modicum of good faith will acknowledge that the District of Columbia is not a state. If it were, it would have had a voting member of the House and two voting members of the Senate for the last 210 years, and there would be 51 stars on the flag.
     If the courts throw out the D.C. seat, does Utah still get a fourth seat? And is it intended that this will permanently raise the House from 435 to 437 seats, so that a majority is 219?
     Also, it seems likely to me that the Republican Party of Utah will be able to draw a four-district map in such a way as to claim not only the new seat, but to defeat the Democratic Representative in the second district.
     It's bad constitutional law. And it's bad Congressional politics. Add to that that it would, if approved, severely undercut the argument for DC statehood and two new Democratic senators, and I can only hope that this law will be immediately enjoined and quickly branded as unconstitutional.
by Ron Thompson 2009-02-24 11:28AM | 0 recs
Electoral College

Answer this: if DC has no "statehood" legitimacy, then why does it continue to cast three electors for the Presidency?

by Zeitgeist9000 2009-02-24 11:33AM | 0 recs
Re: Electoral College
     Because the 23d Amendment provides that "The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct:
     A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but inb no event more than the least popiulous State;"
by Ron Thompson 2009-02-24 11:41AM | 0 recs
Re: How Many States Are There?

I think we should have a ground rule here that nobody comments until they've read or at least skimmed the pieces by Starr and Dinh.  Don't just dismiss them out of hand, bring specific arguments against them.  

To use another proverb, even a stopped clock is right twice a day, maybe this is the time.  

Between them, Starr and Dinh rebut every argument that has been made during this discussion, except for one that I made myself.  

They have me convinced that a constitutional amendment is still preferable, but not absolutely necessary.  

by ajwagner 2009-02-24 11:36AM | 0 recs
by ajwagner 2009-02-24 11:38AM | 0 recs
Re: Big step to DC statehood today

Perhaps... or perhaps we will see an amendment.

What was the original founding fathers argument against making DC a state back int he day?  Anyone know?

by 30000Fine 2009-02-24 12:06PM | 0 recs
Re: Big step to DC statehood today

DC didn't exist until 1790, so there really wasn't an argument either way.  The constitution has provisions for a "district" to be the national capital.  I think at the time, the district pretty much held ONLY politicians, although I honestly don't know for sure.  

i.e., when the "district" verbiage was written, that made complete sense, given the lack (and type) of population within the district.

by Dave in PA 2009-02-24 12:44PM | 0 recs
Re: Big step to DC statehood today

DC didn't exist in 1787. They did foresee a federal district, however, in Art. 1.

The general argument is that the national government must be responsible for its own maintenance and safety, rather than relying on the loyalty and good character of a state (not an objection to be taken lightly back then).

It's also a prestige thing - everybody wanted it, nobody wanted anyone else to have it.

by PantherDem 2009-02-24 12:46PM | 0 recs

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