On May 1, 2007, Senator Lieberman, with Senators Bennett and Hatch as original co-sponsors, introduced S.1257, the District of Columbia House Voting Rights Act of 2007. The bill, as amended, was favorably reported out of the Senate Homeland Security and Governmental Affairs Committee on June 13 on a 9-1 vote. The legislation was then placed on the Senate legislative calendar.
The landmark measure would provide the District of Columbia (DC) one voting seat and Utah a fourth seat in the House of Representatives, which would bring membership in the House from 435 to 437.
The House passed a similar bill, H.R.1905, also named the District of Columbia House Voting Rights Act of 2007, on April 19 on a 241-177 vote. The bill was received in the Senate the following day and referred to the Senate Finance Committee because of tax-related provisions were included. It should be noted that this bill is a modified version of H.R.1433, also the District of Columbia House Voting Rights Act of 2007, which was introduced and debated earlier in the 110th Congress. That bill was laid on the table on April 19 pursuant to a motion to recommit the bill to the Committee on Oversight and Government Reform for consideration of an amendment regarding DC’s gun control law. In lieu of that measure, the House considered and passed H.R.1905.
S.1257, which differs from H.R.1905, would require that Utah be given a fourth congressional district seat, as opposed to an at-large congressional seat, and would set the election for the two new Representatives in 2008 for the 111th Congress, as opposed to holding a special election in 2007 for the remainder of the 110th Congress. The bill would further specify that DC is not a state for the purposes of Senate representation and repeal the DC delegate once a full voting Representative is established. The measure also omits a revenue tax offset, required by the House PAYGO resolution, to cover the cost of adding the two seats.
During the 110th Congress, the Senate Homeland Security and Governmental Affairs and Judiciary Committees held hearings on S.1257 entitled “Equal Representation in Congress: Providing Voting Rights to the District of Columbia,” and “Ending Taxation without Representation: The Constitutionality of S.1257,” respectively. Hearings on this issue were also held in the House. During these hearings, constitutional scholars from a wide ideological spectrum testified in support of the constitutionality of S.1257 and H.R.1905/H.R.1433.
Since 1801, the year after DC was established as the seat of the national government, DC residents have been seeking representation in the House and Senate. Hundreds of attempts have been made, but according to the Congressional Research Service (CRS) most proposals have centered around five options: a constitutional amendment granting DC full voting representation in the House and Senate (proposed more than 150 times); DC statehood; full retrocession of DC into Maryland, save a federal enclave; semi-retrocession of DC into Maryland by allowing DC residents to vote as residents of Maryland in federal elections; and virtual statehood by defining DC as a state for the purposes of voting representation in the House and/or Senate.
Legislative proposals have federal constitutional hurdles, including issues raised regarding Article I, Section 2 of the Constitution, which grants House representation to the “People of the several States,” Article I, Section 3, which grants “two Senators from each State,” and Article I, Section 8, which gives Congress exclusive legislative authority over the “District [that] become[s] the Seat of the Government of the United States.”
Opponents ofS.1257 argue that Article I, Section 2 precludes granting DC voting representation through legislation and that the only constitutional means is through a constitutional amendment or statehood. Supporters of the measure believe that Congress’s authority over DC, via Article I, Section 8, permits it to grant DC virtual statehood for the purposes of congressional representation. Congress has already passed legislation (the Judiciary Act of 1789, amended in 1940) granting DC virtual statehood for the purposes of diversity jurisdiction. DC is also considered a state for other purposes. Supporters further point to the Uniform and Overseas Citizens Absentees Voting Act as an example of Congress’s authority to grant voting rights to citizens who are not residents of a state.
While there is a significant amount of jurisprudence relating to the special nature of DC, including voting representation, no court has expressly ruled that Congress is prohibited by the Constitution from granting DC voting representation through legislation. The most often referenced cases are National Mutual Insurance Company v. Tidewater Transfer Company (1949) and Adams v. Clinton (2000). In Tidewater, the Supreme Court held that although DC is not a state for the purposes of Article III, Congress has the authority to grant DC residents diversity jurisdiction pursuant to its authority under Article 1, Section 8. In Adams, a three-judge panel of the U.S. District Court for the District of Columbia held that DC is not entitled to be treated as a state for the purposes of congressional apportionment, but it did not address whether Congress could grant DC representation through legislation. Indeed, the court encouraged the plaintiffs to seek representation through “other venues,” which may be construed to include the possibility of congressional representation through legislation.
While S.1257 would provide a fourth congressional seat for Utah, H.R.1905 would provide an at-large seat for the next eligible state, which the House has determined to be Utah. Utah is the state next in line to receive a congressional seat based on the 2000 census. While constitutional concerns have been raised regarding an at-large district, according to CRS, there is precedent for an at-large district where the state legislature could not convene in time to redistrict, could not agree upon a redistricting plan, or decided not to redistrict, etc. Nonetheless, on December 5, 2006, Utah enacted a redistricting map creating a fourth congressional district for the state.
For more background on this bill, please see the sources cited in the additional reading section below.
Section 2. Treatment of the District of Columbia as Congressional District. S.1257 would establish that DC is a congressional district for the purposes of representation in the House. The bill, however, expressly states that DC will not be considered a state for the purposes of representation in the Senate.
The measure would amend the U.S. Code to include a single seat for DC in the apportionment of congressional Representatives. DC would not be permitted, however, to receive more than one seat under any reapportionment of members.
Section 3. Increase in Membership of House of Representatives. Starting with the 111th Congress, S.1257 would increase membership in the House by two (DC Representative plus one additional Representative) to 437 and amend the U.S. Code apportionment sections accordingly.
The legislation would further provide that no more than 30 days after enactment, the President shall send to Congress a revised version of the most recent apportionment statement, taking into account this act and identifying Utah as the state entitled to receive the additional Representative. No more than 15 days after receiving the revised statement from the President, the Clerk of the House would be required to submit a report to the Speaker identifying Utah as the state entitled to receive the additional Representative.
Section 4. Effective Date; Timing of Elections. S.1257 would require Utah’s new Representative to be elected pursuant to a redistricting plan enacted by the Utah State Legislature, such as the plan enacted on December 5, 2006 that created a fourth congressional district. The plan would remain in place through the 112th Congress, i.e. after the decennial census conducted for 2010.
The measure would further require that both the DC and Utah Representatives be elected in the general election for the 111th Congress and be sworn in and seated on the same date as other members of that Congress.
Section 5. Confirming Amendments. Effective at the start of the 111th Congress, S.1257 would repeal the District of Columbia Delegate Act, which created the Office of the DC Delegate, and would amend the District of Columbia State Constitutional Convention Initiative of 1979, which created the Office of Statehood Representative.
Section 6. Nonseverability of Provisions. S.1257 would require that if any part of the Act is declared invalid or unenforceable, all provisions of the Act will be treated as invalid and unenforceable.
Section 7. Judicial Review. S.1257 would provide for expedited judicial review of constitutional challenges to this Act. The action would be filed in the U.S. District Court for the District of Columbia and be heard by a three-judge panel. Appeals would be made directly to the Supreme Court by filing an appeal within 10 days and filing a jurisdictional statement within 30 days of the lower court’s final decision.
On May 1, 2007, Senator Lieberman, with Senators Bennett and Hatch as original co-sponsors, introduced S.1257, the District of Columbia House Voting Rights Act of 2007. The bill has the bipartisan support of 19 co-sponsors, including Senators Boxer, Carper, Clinton, Dodd, Durbin, Feingold, Feinstein, Hatch, Kennedy, Kerry, Landrieu, Leahy, Levin, McCaskill, Menendez, Mikulski, Obama, Pryor, and Sanders. Senate Majority Leader Reid also supports the legislation.
The bill was referred to the Senate Homeland Security and Governmental Affairs Committee where hearings were held. Hearings were also held in the Senate Judiciary Committee. On June 13, on a 9-1 vote, the measure was ordered to be favorably reported out of committee with two amendments. Senator Collins offered both amendments. The first, an amendment to clarify that the bill applies solely to voting rights in the House and not the Senate, was approved by voice vote. The second, an amendment to provide for expedited judicial review of constitutional challenges to the bill, was approved on a 15-1 vote. On June 28, a written report was issued with additional views included by Senators Coburn and Stevens. The legislation was then placed on the Senate Legislative Calendar.
On September 12, a motion to proceed to consideration of the measure was offered and withdrawn. The Senate is expected to take up the measure during the week of September 17.
On June 15, the Congressional Budget Office (CBO) issued a cost estimate for S.1257. CBO estimates that “enacting the bill would increase direct spending by about $200,000 in 2009 and by about $2 million over the 2008-2017 period. In addition, implementing the bill would have discretionary costs of about $1 million in 2009 and about $7 million over the 2008-2012 period, assuming the availability of the appropriated funds.”
The legislation, however, “contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) and would impose no significant costs on state, local, or tribal governments.”
Statement of Administration Policy
At the time of this writing, no Statement of Administration Policy (SAP) had been issued for S.1257 or H.R.1905. The Bush Administration did, however, publish a SAP strongly opposing H.R.1433 on March 20. The President threatened to veto the bill, if passed, on the grounds that DC can only be granted voting representation in the House via constitutional amendment, not statutory action. Given the similarities between S.1257 and H.R.1433, it is anticipated that President Bush will threaten to veto S.1257 as well.
Congressional Research Service, “District of Columbia Voting Representation in Congress: An Analysis of Legislative Proposals,” RL33830, Updated April 23, 2007.
Richard P. Bress and Lori Alvino McGill, “Congressional Authority to Extend Voting Representation to Citizens of the District of Columbia: The Constitutionality of H.R.1905,” American Constitution Society for Law and Policy, May 2007, available at LINK.
Senate Democratic Policy Committee, Senate Oversight Highlights Week of May 14, 2007, see “Equal Representation in Congress: Providing Voting Rights to the District of Columbia,” available at LINK.