Support for Litigation Challenging Constitutionality of the Denial of Congressional Voting Representation for District Residents Sense of the Council Resolution of 1998
PR 12-617

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A PROPOSED RESOLUTION IN THE COUNCIL OF THE DISTRICT OF COLUMBIA

RESOLVED, BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this resolution may be cited as the "Support for Litigation Challenging Constitutionality of the Denial of Congressional Voting Representation for District Residents Sense of the Council Resolution of 1998".

Sec. 2. Findings.

(a) The District of Columbia is the only national capital amongst the world's representative democracies whose residents are denied voting representation in the national legislature.

(b) Although the Constitution of the United States (Article I, section 8, clause 17) authorizes the establishment of a national capital district over which "Congress shall have the power to exercise exclusive legislation in all cases whatsoever", nothing in its terms or in the rationale offered for this provision suggests that the right to voting representation in the Congress should be withheld from those citizens who happen to reside within the boundaries of the national capital.

(c) The core principle of a democracy – that the government derives its powers from the consent of the governed –  is violated when citizens do not have voting representation in the bodies that make their laws.

(d) Moreover, the fundamental Constitutional rights of one person-one vote and equal protection under the law are each violated by the District's lack of voting representation in the House and the lack of any representation in the Senate.

(e) The denial of Congressional voting representation for District residents is even more heinous when coupled with the fact that Congress chooses to exercise ultimate decision-making over all local legislative and budgetary matters affecting District residents. Thus, as Professor of Law Jamin B. Raskin has argued, District residents are not only locked out of their national legislature but also out of what is in a structural sense their state legislature. This shameful lack of democracy is further compounded by the recent transfer of certain state-like functions from the District government to the Federal government.

(f) Because District residents bear all of the burdens of citizenship, including federal taxation in the amount of nearly $2 billion annually – higher federal taxes than eight other states, and including wartime participation, District residents are entitled to full representation in Congress, the same as all other U.S. citizens. Taxation without representation led the American colonies in 1776 to declare their independence from Britain. Equal protection requires that District residents in 1998 no longer be treated as second-class citizens.

(g) A proposed amendment to the Constitution, which would have provided District residents with voting representation in the United States Senate and House of Representatives as if the District were a state, was approved by the required minimum two-thirds majority in Congress and signed by President Carter in 1978. However, the Voting Rights Amendment died in 1985 when only 16 of the required 38 states ratified the proposed amendment within the Congressionally required time period for ratification.

(h) A statehood initiative, which if successful would automatically place District citizens on equal footing with other American citizens, including Congressional voting representation, was approved by a majority of District voters in 1980. However, a bill to admit the state of New Columbia (consisting of all but a federal enclave of the District of Columbia) was not considered by the House of Representatives until November 1993, when it was defeated by a vote of 277-153.

(i) In early 1993, the District gained a small step in political representation when the House of Representatives changed its rules to permit the District delegate to the House to vote in the Committee of the Whole along with the delegates from the four territories of Puerto Rico, Guam, American Samoa, and the Virgin Islands. However, the rule provided that any time that these delegates' votes played a decisive role in the margin of victory of legislation, the vote would be held a second time and delegates from the District and the territories would not be allowed to vote. Further, even this ability to vote was short-lived, as members of the House, in January 1995, terminated the District's and territories' delegates from the official voting roster.

(j) Professor Jamin B. Raskin, of the Washington College of Law at American University, has recently authored a law review article, entitled "Is This America? The District of Columbia and the Right to Vote", which presents extensive legal research and case law demonstrating how the District's disenfranchisment in Congress burdens fundamental rights, including the following arguments which provide the groundwork for litigation challenging the constitutionality of this disenfranchisement:

(1) The denial of Congressional representatives of the people of the District burdens the right to be represented in Congress on the basis of one person-one vote, regardless of geographic residency, as well as the right to run for Congress;

(2) District residents are part of "the people" who must be represented, and have the opportunity to serve, in the US. House of Representatives and, by analogy, the Senate, but instead have been closed out of the political process;

(3) The denial of representation in Congress burdens the right of American citizens in the District to be represented in their own state legislature;

(4) The denial of representation and equal vote to the District population bears an unconstitutional resemblance to political apartheid, because it sends a message that majority-minority populations are not fit to govern themselves and participate equally in the national government;

(5) The denial of representation and an equal vote to American citizens in the District unjustifiably burdens the right to travel;

(6) The denial of representation in Congress violates the right of citizens living in the District not to be disenfranchised in Congressional elections for failure to pay any poll tax or other tax; and

(7) By extending full voting rights and representation in Congress to American citizens living abroad and members of Congress living in the District, but denying the same rights to all American citizens living in the District, Congress has acted irrationally and with a presumed indifference or hostility to the rights of a political community.

(k) Professor Raskin provides extensive legal research demonstrating how this denial of fundamental constitutional rights does not bear the strict scrutiny required under the standard of review established by the United States Supreme Court, including the following arguments:

(1) There is no valid interest in disenfranchising the District population because of its alleged statism, dependence on the Federal government, urban character, or lack of political or economic diversity;

(2) The Constitution does not compel Congress to disenfranchise the District; and

(3) Congress does have a compelling interest in maintaining its control over the federal District and exercising its "seat of government" powers, but this interest is in no way incompatible with the exercise of constitutionally protected voting rights by District residents.

Sec. 3. The Council commends Professor Jamin B. Raskin for his extensive legal research, hard work and dedication, and excellent advocacy to bring representative democracy to the nation's capital. The Council strongly supports and would be enthusiastic about serving as one of the plaintiffs in litigation challenging the constitutionality of the denial of Congressional voting representation of American citizens who live in the District. The Council calls upon the legal community and others to provide pro bono assistance to the preparation and advocacy of this important litigation on behalf of the fundamental rights of District residents.

Sec. 4. This resolution shall take effect immediately.\