Wednesday, January 28, 2009

New Congress brings hope of change to D.C. . . . literally

Readers have no doubt been keeping abreast of the stories outlining the numerous ways in which the change spurred by the new administration is playing out in the legal arena.  Residents (and former residents, and friends and family of residents) of the the District of Columbia will be pleased to know that the change might spread beyond Capital Hill and throughout the city.

Today, Katrina Vanden Heuvel of The Nation reports that there is a good chance that the "District of Columbia House Voting Rights Act of 2009 will pass Congress.  The Bill, as its title suggests, would finally give DC residents a voting representative in Congress.  The article is interesting because it almost presupposes that the bill will pass, and therefore focuses on considering the legal challenges such a bill will face if enacted.   The primary argument seems to be that the Constitution would not permit any entity that is not "a State" to have a vote in Congress.  However, the other side has a powerful counter-argument.  Here's a snippet from Rep. Steny Hoyer (D-MD):    "If you oppose this bill, you need to tell us: Just what does our country gain by treating the people of Washington, DC differently from America's other 300 million?"   

It could be a great equal protection argument.   Even if we set aside the racial aspect (non-whites outnumbered whites two-to-one in the District in the 2000 census) and potential fundamental rights claims, in this day and age, it would seem that denying District residents a voice in Congress cannot pass even rational basis review.   On the legitimate purpose prong, what is the legitimate purpose at this point?  Even if we harken back to the rationale of the Founding Era, advocacy group D.C. Vote quite convincing refutes those arguments:

Federalists argued that exclusive legislative jurisdiction over the seat of government was needed so the federal government would not be dependent on a state for security in case of mutiny or disruption. Samuel Osgood, a member of the Board of Treasury, said, "It has cost me a sleepless night to find out the most obnoxious part of the proposed plan, and I have finally fixed upon the exclusive legislation in the Ten Miles Square. What an inexhaustible fountain of corruption are we opening?" James Madison argued that the Constitution should be adapted despite concerns because District citizens "will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them." Alexander Hamilton proposed an idea that wasn't adopted - to let DC residents vote in the state from which they had previously belonged (Maryland and Virginia) until their population grew, at which time Congress would give DC voting representation in that body. The historical record indicates that the founders were concerned about the rights of District citizens and left open the possibility that future generations could address the inequity. However, at the time, getting approval for the federal Constitution was more important than assuring national representation for District citizens.

Assuming for the moment that the neutrality of the Capitol is a legitimate purpose, is there any rational basis for denying the vote while continuing to tax the non-voting residents?  No one has ever conclusively proven what the harm to the nation would be if residents of D.C. were allowed to vote.  The basic argument seems to be, "It's always been this way, so it should stay this way." Can that argument pass constitutional muster at this point in time?  After Moreno, it would appear the answer is no because the decision seems so arbitrary.  Since there are so few facts supporting continued denial of this basic right to District denizens, a court could follow Moreno and Cleburne and simply say the rule is no longer rational, and the law would pass constitutional muster.

This promises to be an interesting story.  We'll follow it and keep you updated!

NLS

http://lawprofessors.typepad.com/conlaw/2009/01/new-congress-br.html

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