- The Washington Times - Saturday, February 24, 2007

For far too long the injustice of disenfranchisement for U.S. citizens in the District of Columbia has seemed to defy a permanent constitutional remedy. That is one reason the attempt to find a near-term statutory fix has been embraced so broadly.

Of course, any statutory remedy that survives a court challenge will be a first step that ultimately must lead to a constitutional solution. History teaches that the mechanisms of the Constitution itself ultimately must be employed to end a denial of rights that is in effect permitted by the Constitution itself.

Who would argue that a federal statute ending denial of equal citizenship based on race would have sufficed in lieu of the 13th, 14th and 15th Amendments? Why the 23rd Amendment, instead of an act of Congress to give D.C. a presidential vote?

However, the gradualism of a statutory fix can usher in a constitutional solution only if it survives judicial scrutiny. It should come as no surprise that the legal issues get harder the closer supporters get to legislating a vote for D.C. in the House.

This is because the Constitution confers on states a right to representation in Congress, and citizens in the states elect representatives. This encumbers citizenship rights in both D.C. and U.S. territories, because citizens not eligible to vote in a state have no express constitutional right to elect voting representation in Congress.

A statutory policy granting a House vote to the District of Columbia would be a purely discretionary act by Congress, and would not create a new constitutional right or bind Congress in the future. That is also the case when Congress allows delegates to vote when the House convenes as a special committee of all members to consider amendments to bills (a somewhat precatory privilege since votes by D.C. or the territories that would decide a question don’t count).

The options for statutory remedies seem limited because Congress is empowered by the Constitution to apportion seats based only on population in each state. Legal experts who testified before Congress on the D.C. bill were divided on whether the District Clause gives Congress discretion to add seats outside the constitutionally prescribed apportionment process, because that dilutes the voting power of representation based on population in the states.

The D.C. proposal would also give Utah an extra at-large representative based on the novel argument Utah “just missed” one more seat in the last census. But states that did not just miss in the last census may argue that partisan tradeoff diminishes their voting power.

Legal scholars also predict a statutory vote for D.C. will create the expectation of a statutory remedy for other disenfranchised Americans. If the District Clause is broad enough to allow a statutory solution, does the Territorial Clause enable Congress to give a vote to Puerto Rico, Guam, American Samoa, Northern Marianas and the Virgin Islands?

With a population of 4 million U.S. citizens, Puerto Rico arguably already should have six delegates to provide the same level of constituent services as House members representing much smaller populations. If Congress gives D.C. and the small territories one vote each with their small populations, only the odious logic of the infamous three-fifths compromise giving slaves fractional representation could deny Puerto Rico six voting seats in the House.

Some mistakenly argue territories pay no taxes and do not deserve a vote. Actually, Puerto Rico and other territories pay billions annually in federal taxes on income earned in the States and overseas, as well as payroll taxes for Social Security and Medicare. Besides, the Revolutionary War era slogan about taxation without representation does not mean people must be represented to be taxed, or taxed to be represented (the “poll tax” was another abuse requiring the constitutional remedy in the 24th Amendment).

Disenfranchising U.S. citizens is as wrong in the territories annexed in the age of American imperialism as it is in the nation’s capital. If statutory remedies are constitutional, all these areas should also be granted proportional House seats, as well as senators, and territories should have electoral votes in presidential elections.

Of course, full enfranchisement eventually means full voting representation in both Houses of Congress. For D.C., the options are voting as residents of Maryland, admission as a state or a constitutional amendment on representation. For territories that do not aspire to separate nationhood, only statehood or a constitutional amendment will secure full voting rights in Congress and presidential elections.

Those are the normative constitutional remedies through which the union can be made more perfect. The debate over statutory remedies and constitutional solutions is long overdue, but is finally beginning in earnest.


Previous legal counsel on territorial status policy for the National Security Council and the Defense and State Departments. Earlier, he served as a lawyer in the Peace Corps, supporting establishment of constitutional governments for U.S.-administered territories in the Pacific during transition to separate nationhood.

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