An­other road to vot­ing rights

The Washington Post Sunday - - METRO - The writer is a lawyer in pri­vate prac­tice.

A House vote, Se­nate rep­re­sen­ta­tion and con­tin­ued in­de­pen­dence? With a lit­tle leg­isla­tive in­ge­nu­ity, D.C. can get there.

There is a newCongress in town, butThePost and oth­ers con­tinue to push for what the last one would not do: En­act a purely po­lit­i­cal, and likely un­con­sti­tu­tional, plan to give the District a full-fledged and al­mostcer­tain­lyDemo­crat­icmem­ber of the House of Rep­re­sen­ta­tives in ex­change for an ex­tra Repub­li­can seat some­where else.

The Con­sti­tu­tion does not re­quire this kind of games­man­ship for the District to get fed­eral rep­re­sen­ta­tion. In­stead, bi­par­ti­san and last­ing change can be achieved by en­act­ing leg­is­la­tion that can quickly, cleanly— and con­sti­tu­tion­ally— guar­an­teeD.C. res­i­dents­therightto vote for Congress by 2012. What’s more, they would also be able to be­gin vot­ing in Se­nate races. They would just be do­ing so asMary­land res­i­dents— while oth­er­wise re­tain­ingal­lotheruniquea­spects of liv­ing in the District.

All that is needed is a lit­tle leg­isla­tive in­ge­nu­ity.

There is strong his­tor­i­cal prece­dent for the first half of this. The District­wa­so­rig­i­nal­ly­de­signedasa di­a­mond-shaped en­clave for the fed­eral govern­ment. In 1801, through the District of Columbia Or­ganic Act, the young states of Vir­ginia and Mary­land ceded part of their territories to help the United States es­tab­lish a strong fed­eral gov­ern­ment­ca­pable­ofdeal­ing­with for­eign threats and cre­at­ing cir­cum­stances con­ducive to vi­brant eco­nomic ac­tiv­ity. It all worked so well that by 1846 it was agreed that the por­tions of the District ceded from Vir­ginia could be re­turned, and res­i­dents of Alexan­dria and Ar­ling­ton­re­sumed­vot­ing formem­bers of Congress as Vir­ginia res­i­dents.

The idea of “retro­ced­ing” all or most of the re­main­ing District to Mary­land is a fa­mil­iar part of the de­bate on D.C. vot­ing rights. D.C. res­i­dents un­der­stand­ably raise ob­jec­tions to such a change. But this­would­not­beretro­ces­sion as it is nor­mally dis­cussed. There are many lev­els of sovereignty, and noth­ing in the Con­sti­tu­tion would pro­hibitD.C. res­i­dents from be­ing con­sid­ered part ofMary­land solely for the limited pur­pose of fed­eral elec­tions. The District’s sys­tem of govern­ment would not have to change in any other way.

The needed leg­is­la­tion in­volves only the con­sti­tu­tional pro­vi­sions found in Ar­ti­cle IV, Sec­tion 3, which state:

Clause 1: “New States may be ad­mit­ted by the Congress into this Union; but no new State shall be formed or erected within the Ju­ris­dic­tion of any other State; nor any State be formed by the Junc­tion of two or more States, or Parts of States, with­out the Con­sent of the Leg­is­la­tures of the States concerned as well as of the Congress.”

Clause 2: “ The Congress shall have Power to dis­pose of and make all need­ful Rules and Reg­u­la­tions re­spect­ing the Ter­ri­tory or other Prop­erty be­long­ing to the United States; and noth­ing in this Con­sti­tu­tion shall be so con­strued as to Prej­u­dice any Claims of the United States, or of any par­tic­u­lar State.”

Read to­gether, these two clauses con­firmthat, with­thep­er­mis­sionof Congress, theMary­land leg­is­la­ture and ide­ally the D.C. Coun­cil, D.C. res­i­dents can be des­ig­nated to vote as Mary­land res­i­dents for fed­eral elec­tions. It would re­quire just these steps. Most im­por­tant, there would be no ques­tions re­gard­ing whether such a change is con­sti­tu­tional, un­like the con­sis­tently flail­ing “com­pro­mise” leg­is­la­tion that ig­nores the “state” re­quire­ment for con­gres­sional rep­re­sen­ta­tion.

What are the pos­si­ble costs and com­pli­ca­tions? There would be some start-up costs for the Mary­landBoard­ofElec­tion­stoup­dateits voter rolls to in­clude D.C. res­i­dents and co­or­di­nate the elec­tions of the Mary­land mem­bers of Congress with D.C. of­fi­cials and agen­cies. Mary­land sen­a­tors also would need about a 20 per­cent in­crease in staff and re­sources for their new­con­stituents from the District.

The un­avoid­able po­lit­i­cal as­pects of this plan are like­wise eas­ily man­age­able. There might be grip­ing that a ran­dom state will lose a mem­ber of Congress. Which­ever statethi­sis, how­ever, itwill­be­based on an im­par­tial math­e­mat­i­cal process de­rived from the new cen­sus data. Math will also af­fect the lines for the new Mary­land con­gres­sional district; since the District has about 600,000 res­i­dents and the av­er­age con­gres­sional district about 650,000, a por­tion of Prince Ge­orge’s County or Mont­gomery County will need to be re­dis­tricted in with the city.

Also, Repub­li­cans may ob­ject that ad­di­tional Demo­cratic vot­ers will af­fec­tMary­land’s Se­nate races. But the Demo­cratic Party al­ready hold­sasig­nif­i­cant reg­is­tra­tionedge in­Mary­land, so the ef­fect onSe­nate races would be min­i­mized.

Lastly, theleg­is­la­tion­would­need to be drafted so that the 23rd Amend­ment re­mains un­af­fected and the District re­tains its three Elec­toral Col­lege votes for pres­i­dent.

Fewdis­agree that it is un­fair that 600,000D.C. res­i­dents lack full rep­re­sen­ta­tion in Congress. The time to ad­dress this is now, be­fore the re­dis­trict­ing from the cen­sus be­comes fi­nal­ized in 2011. Do­ing so would also give Pres­i­dent Obama and both par­ties in Congress a chance to show the Amer­i­can peo­ple that smart break­throughs on long-dead­locked is­sues can still be achieved in to­day’sWashington.


Vin­cent Gray leaves the White­House in De­cem­ber, when he and Pres­i­dent Obama dis­cussed D.C. vot­ing rights and other topics .

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