Statutory Provision for House Seat for DC -- The Remaining Electionlaw List Posts

Tue Mar 27 14:23:33 PDT 2007

Here is the response from Ms. Masters of DC Vote, and my response to her.

Mark S. Scarberry
Pepperdine University School of Law

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Response from Lorelie Masters, Esq.:

From: owner-election-law_gl at majordomo.lls.edu on behalf of Masters, Lorelie S

Sent: Thu 3/22/2007 9:15 PM

To: election-law_gl at majordomo.lls.edu

Subject: D.C. Voting Rights

As Vice Chair of DC Vote, and a new member of this listserve, I feel compelled to respond to the posting by Mark Scarberry about the constitutionality of the D.C. Fair and Equal House Voting Rights Act. We at DC Vote, and I as a longtime citizen of the District of Columbia, believe strongly that the D.C. Voting Rights Act is constitutional and should be passed immediately to correct the historic inequity that has afflicted the District since 1801. Yes, there is an argument made by those who have long denied the 580,000 residents of D.C. voting representation in Congress. However, much law and history - not to mention simple equity and fairness - support the Act. I cannot in a quick posting address every point Mr. Scarberry, a law professor at Pepperdine Law School in California, makes, but in my view the cases and other points below refute his premise. At a minimum, the courts - and, ultimately, if the anti-voting rights forces continue to deny us, the Supreme Court should decide the issue.

The Constitutional provision on which the anti-voting rights forces rely does not preclude Congress from enacting legislation to give us D.C. residents a full vote in the United States House of Representatives. That provision, found in Article I, Section 2, of the Constitution, does state that members of the House of Representatives shall be "chosen by the people of the various States." However, many provisions in the Constitution refer only to "States." Despite that fact, courts, including the United States Supreme Court, have consistently treated D.C. as a "State," or the American citizens who are residents of D.C. as if they were citizens of a State, under the Constitution. 

Thus, courts have ruled that D.C. residents are treated like citizens of "States" for many purposes. A short, but incomplete, list includes the following Supreme Court cases:

· Loughborough v. Blake, 18 U.S. (5 Wheat) 317, 319-20 (1820): Upholding the federal government's power to levy and collect taxes against D.C. residents.

· Hepburn v. Ellzey, 6 U.S. (2 Cranch) 445, 452 (1805), and National Mut. Ins. Co. of D.C. v. Tidewater Transfer Co., 337 U.S. 582, 587-88 (1949): Upholding federal law treating D.C. residents as if they were "Citizens of different States," U.S. Const., art. III,§ 2, to provide federal court diversity jurisdiction for D.C. residents.

· DeGeofroy v. Riggs, 133 U.S. 258, 267-68 (1890): Treating D.C. as a "state" for purposes of enforcing international treaties.

· Callan v. Wilson, 127 U.S. 540, 548 (1888): Upholding the right to trial by jury under the 6th Amendment for D.C. residents.

As this list shows, although Mr. Scarberry discusses two Supreme Court cases to argue D.C. does not deserve a vote in the "People's House," many other cases support our demand for simple justice for D.C. residents. 

Mr. Scarberry appears to assert in part that the Supreme Court has held that D.C. is not a "State" for purposes of the Fourteenth Amendment. That premise does not hold, however, given the history on that issue. It is true that, in District of Columbia v. Carter, 409 U.S. 418 (1973), the Supreme Court held that, because the Fourteenth Amendment did not apply to D.C. residents, the civil rights remedies in 42 U.S.C. § 1983 did not apply to D.C. residents either. In response, Congress enacted legislation, pursuant to its power under the District Clause, expressly extending § 1983 to the District. The validity of that legislation has never been challenged, and the courts have since assumed its applicability in many cases brought under its auspices. See, e.g., Inmates of D.C. Jail v. Jackson, 158 F.3d 1357 (D.C. Cir. 1998). 

As Justice Jackson said in Tidewater, when Congress has treated the District as a State for purposes of Article III of the Constitution, it was "reaching permissible ends by a choice of means which certainly are not expressly forbidden by the Constitution." 337 U.S. at 603. Congress did so in circumstances where "no good reason is advanced" for denying Congress that power. Id. This rationale applies equally to Congress's power to treat citizens of the District as if they were citizens of a state under Article I for voting purposes.

Other federal legislation has allowed United States citizens not present in their home jurisdictions, or "States," to vote in Congressional elections. For example, soldiers stationed overseas are allowed to vote for Representatives and Senators from the last state in which they resided before shipping out to their foreign posts, without regard to their being resident in their state of residency, or in a state (if stationed abroad). The constitutionality of that legislation has never been challenged - and is unlikely to be so. 

In addition, eminent legal scholars have concluded that the Act (or its predecessors) is constitutional - and should be passed now. Writing in the Washington Times in September 2006 (http://www.washingtonpost.com/wp-dyn/content/article/2006/09/15/AR2006091500935.html <http://www.washingtonpost.com/wp-dyn/content/article/2006/09/15/AR2006091500935.html> ), for example, former federal Judges Kenneth Starr and Patricia Wald stated that the D.C. Voting Rights Act is "consistent with fundamental constitutional principles; it is consistent with the language of Congress's constitutional power; and it is consistent with governing legal precedents." Mr. Starr is Dean of Mr. Scarberry's law school - and a former Solicitor General of the United States, the official charged with representing the United States Government on constitutional issues before the Supreme Court. Viet Dinh, former Assistant Attorney General for legal policy in the George W. Bush Administration, also concluded that the Act passes constitutional muster (http://www.dcvote.org/pdfs/congress/vietdinh1 <http://www.dcvote.org/pdfs/congress/vietdinh1> !

12004.pdf).

The bipartisan compromise in the Act has the support of both Republicans and Democrats on the Hill, a fact that will help promote its passage - and preclude efforts later to take away our vote (as was done with D.C.'s vote in the Committee of the Whole in 1994 by the then-new Republican Congress) and disenfranchise the District once again.

Surely, the citizens in D.C. - who pay federal income taxes and fight and die in our wars - deserve the same rights, and vote in Congress, enjoyed by every other citizen of the United States. Congress should forego gimmicks and ignore smoke-screen arguments - and pass the D.C. Fair and Equal House Voting Rights Act now.

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Lorelie S. Masters

Jenner & Block LLP

601 Thirteenth Street, N.W.

Suite 1200 South

Washington, DC 20005-3823

Tel (202) 639-6076

Fax (202) 661-4924 

Mobile (202) 595-4600

LMasters at jenner.com 

Assistant: Kim Gibbs (202) 637-6390 KGibbs at jenner.com

www.jenner.com <outbind://51/www.jenner.com> 

CONFIDENTIALITY WARNING: This email may contain privileged or confidential information and is for the sole use of the intended recipient(s). Any unauthorized use or disclosure of this communication is prohibited. If you believe that you have received this email in error, please notify the sender immediately and delete it from your system.

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My response to Ms. Masters:

From: Scarberry, Mark 

Sent: Friday, March 23, 2007 12:21 AM

To: election-law_gl at majordomo.lls.edu

Subject: RE: D.C. Voting Rights

I appreciate Ms. Masters taking the time to respond to some of the points I made.

I am in favor of giving a seat in the House to the District. But it should be done in a manner consistent with the Constitution, that is, by amendment to the Constitution, just as an amendment was used to give the District a voice in presidential elections. The idea that the composition of the House could be changed without constitutional amendment -- given that the compromise formula for the House and Senate was the cornerstone of the agreement in Philadelphia -- does not on its face seem plausible. The more I consider the particular arguments, the less plausible it seems.

My first post on this issue asked for a reference to arguments in favor of the constitutionality of the proposed statute. This is not a topic I've researched before, but when I looked at the references on the DC Vote web site they seemed weak to me (even though, as I noted, and as Ms. Masters notes, my dean reaches the opposite conclusion). 

Turning to Ms. Masters's points, I remain unconvinced. For example, the Hepburn case cited below by Ms. Masters does not hold that the meaning of "State" in the Constitution includes the District, but in fact holds to the contrary (or at least so concludes as part of Chief Justice Marshall's reasoning in interpretation of the Judiciary Act). In the Tidewater Transfer case, also cited by Ms. Masters, seven of the nine justices joined opinions denying that the District was a "State" as that term is used in Article III of the Constitution. All nine seemed to think that the District was not a "State" as that term is used in Article I. I discussed those cases at more length in my earlier post.

It is not surprising that Congress could impose a tax on District residents (as Ms. Masters notes was held in Loughborough), if for no other reason than because Congress has the power to act as a legislature for the District. That is a typical power of a legislature. However, in Loughborough, Chief Justice Marshall relied on Congress's power under Art. I, sec. 8, cl. 1 to lay and collect taxes, which is not limited to the states. As I read the case, he argued that the requirement that direct taxes be apportioned among the states (Art. I, sec. 2) only provided the manner in which direct taxes should be handled to the extent they were imposed on the states; it neither required nor prevented taxation of the territories and the District. "The words used do not mean, that direct taxes shall be imposed on States only which are represented, or shall be apportioned to representatives; but that direct taxation, in its application to States, shall be apportioned to numbers." Id. at 320. 

Note that if the District were treated as a state, then Art. I, sec. 2 would have required that direct taxes be imposed on the District on an equal basis with the states. The Chief Justice argued to the contrary that Congress did not need to impose such taxes on the District even if it imposed them on the states. "The words of the 9th section do not in terms require, that the system of direct taxation, when resorted to, shall be extended to the territories, as the words of the 2d section require that it shall be extended to all the States. They, therefore, may, without violence, be understood to give a rule when the territories shall be taxed, without imposing the necessity of taxing them." Id. at 323. Thus Art. I, sec. 9 would require that any such direct taxes on the District be based on the same apportionment scheme that applied to the states. And note that the source of the apportionment requirement for any direct taxes laid on the District would not be sec. 2, which applies only to states, but rather sec. 9, the application of which is not limited to the states.

The Court went on to say, with regard to the claim that the territories and the District should not be taxed because they were not represented in Congress:

"The difference between requiring a continent, with an immense population, to submit to be taxed by a government having no common interest with it, separated from it by a vast ocean, restrained by no principle of apportionment, and associated with it by no common feelings; and permitting the representatives of the American people, under the restrictions of our constitution, to tax a part of the society, which is either in a state of infancy advancing to manhood, looking forward to complete equality so soon as that state of manhood shall be attained, as is the case with the territories; or which has voluntarily relinquished the right of representation, and has adopted the whole body of Congress for its legitimate government, as is the case with the district, is too obvious not to present itself to the minds of all. Although in theory it might be more congenial to the spirit of our institutions to admit a representative from the district, it may be doubted whether, in fact, its interests would be rendered thereby the more secure; and certainly the constitution does not consider their want of a representative in Congress as exempting it from equal taxation." Id. at 324-25. 

As noted above, I would support a constitutional amendment giving the District a representative, because, as the Chief Justice correctly suggests, that would be "more congenial to the spirit of our institutions."

De Geofrey v. Riggs, cited by Ms. Masters, appears to have involved interpretation of the phrase "states of the Union" in a treaty, not in the Constitution. The Court in fact cites Hepburn for the point that under general law, including international law, the District would be considered a state, even though it is not a state as the term is used in the Constitution.

It's not surprising that the Court in Callan held that the right to jury trial in criminal cases extended to the District. As the Court noted, Art. III, sec. 2, cl. 3 applies to District by its terms and provides for jury trial in criminal cases. I'd also note that the Sixth Amendment by its terms seems to apply to all federal criminal prosecutions, though the reference to where the trial would be held does not fit with regard to crimes committed in the District. That is perhaps unsurprising, since Congress already had the power to determine where trials would be held for crimes committed in the District or in territories, and it seems the drafters of the Sixth Amendment did not intend to eliminate that power. In any event, Callan does not hold that the District is a "state" as that term is used in the Sixth Amendment but only that the Sixth Amendment applies to the District (along with the Fifth Amendment and Art. III, sec. 2, cl. 3). In fact, if Court had held that the District were a state for purposes of the Sixth Amendment, then the Court would have had to conclude that the Sixth Amendment partially repealed Art. III, sec. 2, cl. 3 by eliminating the power of Congress to determine the place of trial. There is no indication that the Court thought that the Sixth Amendment did so. 

I still have not seen a plausible argument for ignoring the 14th Amendment's provision that House members are to be apportioned among the states, which would not include the District. The analogy to Loughborough does not work; Congress could provide for direct taxation of the District despite a provision stating that such taxes should be apportioned among the states, but it was reasonable to read the apportionment provision as to taxes among the states as being nonexclusive, given the broad scope of the power to lay and collect taxes, and given the broad provision in Art. I, sec. 9 providing for apportionment of such taxes without any limitation to states. Thus broad provisions explicitly providing for taxation and the manner of taxation were used to show that the narrower provision was not exclusive. But there is no analogous broad provision explicitly providing (or even by fair reading implicitly providing) for Congress to apportion House seats other than to states, as is provided in the 14th Amendment. 

Perhaps a plausible argument could be developed based on a very, very, very aggressive reading of section 5 of the 14th Amendment. No such argument could prevail, however, under the Court's present understanding of section 5. Cf. City of Boerne. 

Ms. Masters argues that Congress's extension of section 1983 to the District provides authority for treating the District as a State for purposes of the 14th Amendment, but the argument simply does not work. That Congress could extend to the District statutory provisions originally enacted under section 5 of the 14th Amendment (including provisions like section 1983) is unsurprising, given Congress's power to act as a legislature for the District.

Although Ms. Masters suggests that constitutionality of the proposed legislation should await court decision, I respectfully disagree (for the same reason given by Prof. Lowenstein). Members of Congress -- and the President -- have taken an oath to uphold the Constitution. They cannot legitimately pass the buck. 

In that regard, I'd be interested in any comments Ms. Masters or others might have as to whether anyone would have standing to challenge the constitutionality of the proposed legislation in court. I'm not an expert on standing, but it seems the grievance of the residents of states -- that their representation in the House is diluted if the District is given a House seat -- is the kind of generalized grievance that would not provide standing. If standing would be difficult to obtain, it is even more important that members of Congress and the President take their oaths seriously. 

Again, I appreciate Ms. Masters's response and hope that she and other list members will continue the discussion. I hope she will agree that it is possible to have good faith concerns about faithfulness to the Constitution such that opposition to the proposed legislation is neither a "gimmick" nor a "smoke-screen."

Perhaps Ms. Masters would give me permission to forward her response (and my posts) to the conlawprof list to see what members of that list make of the arguments. I would then ask permission of members of that list to forward their responses (or a summary of their responses) to this list, assuming the list moderators do not object. 

Mark Scarberry

Pepperdine

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