- The Washington Times - Saturday, March 10, 2007

Recently, The Washington Times published a commentary concerning a bill pending in Congress that would give residents of the District of Columbia voting representation in the House of Representatives (“Hard Truths about D.C. Vote,” Feb. 25). While we agree with some of the commentary, the piece makes three points we believe are inaccurate and call for a response.

First, to its credit, the commentary recognizes the “injustice of disenfranchisement for U.S. citizens in the District of Columbia” has gone on “for far too long.” We agree. The United States is the only democratic nation on Earth that denies voting representation to citizens of its capital, and it is well past time to fix that. But the article suggests a “statutory fix” would be only temporary and eventually the Constitution would need to be amended to correct the injustice. That is not so. If Congress has power to address the problem by statute — and we believe it does — it seems to us both unnecessary and inappropriate to amend the Constitution.

Second, the commentary notes a few legal scholars have questioned whether Congress in fact has the power to bring voting representation to citizens of the Nation’s Capital. That is true. But the great weight of legal scholarship is on the other side. In fact, the analyses of eminent jurists across the political spectrum — including the District’s former U.S. Court of Appeals Chief Judge Patricia Wald, former Solicitor General of the United States Kenneth Starr and former U.S. Assistant Attorney General and Professor Viet Dinh — have all confirmed the constitutionality of that power.

These constitutional scholars emphasize three key points:

(1) the Framers never intended to deny voting representation to citizens of the Nation’s Capital.

(2) the Framers gave Congress sweeping power over the Nation’s Capital in Article I of the Constitution, pursuant to which Congress may restore to District residents the vote they lost in 1801 when D.C. was carved out of parts of Maryland and Virginia. (3) And the relevant legal precedents all confirm that Congress may use this power to bring about that restoration.

The article’s final point is that “disenfranchising U.S. citizens is as wrong in the territories… as it is in the nation’s capital.” But District residents differ from residents of the territories in important ways. District residents are now and always have been fully subject to federal income taxation; residents of the territories are not. This country was founded on the proposition that such “taxation without representation” is wrong. It should be fixed by giving the District representation.

The District, moreover, was part of the original 13 states; it was only because the District was carved out of two of the original states that its residents lost the vote they had up until 1801. That is not true of the territories. At some later point, it may be appropriate to consider voting representation for the territories. But that is not a reason to deny the vote to the District now.

At the end of the day, it will always be possible to find reasons to quibble about the pending bill that at long last would begin to restore the District’s voting rights. But to those who quibble, we would say three things: the Framers of our Constitution meant residents of the Nation’s Capital to participate in the democracy they founded; a strong case has been made by respected jurists that Congress has the constitutional authority to effectuate the Framers’ intent through the pending bill; and there is no doubt that effectuating that intent and bringing the vote to the District of Columbia is the right thing to do. Congress should pass the bill.


Mr. Smith is executive director of D.C. Appleseed. Mr. Bress is a partner at the law firm of Latham & Watkins. They have long been involved with D.C. voting rights.

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