On January 6, 2009, Senator Lieberman, Chairman of the Senate Homeland Security and Governmental Affairs Committee, introduced S.160, the District of Columbia House Voting Rights Act of 2009. This landmark measure would provide the District of Columbia (DC) with one voting seat in the House of Representatives and Utah, the next state in line to receive an additional representative based on the 2000 census, a fourth seat in the House, and would bring membership in the House from 435 to 437.
S.160 has received bipartisan co-sponsorship, including Senators Hatch and Voinovich. The bill, as amended, was favorably reported out of the Senate Homeland Security and Governmental Affairs Committee on February 12 on an 11 to 1 vote. The legislation was then placed on the Senate legislative calendar.
On February 13, Senate Majority Leader Reid filed cloture on the motion to proceed to S.160. The Senate is expected to vote on the cloture motion on February 24 at 11:00 a.m.
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.
Federal constitutional provisions must be considered when weighing legislative proposals, including 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 of S.160 argue that Article I, Section 2 precludes granting DC voting representation through legislation and that the only constitutional means of securing voting rights for DC 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 case law 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.
While S.160 would provide a fourth congressional seat for Utah, at least until the 2010 reapportionment, H.R.157 (a similar measure that is pending in the House) would provide an at-large seat for the next eligible state. 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. 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.160 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 112th Congress, S.160 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.160 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 until the first reapportionment occurring after the decennial census conducted for 2010 takes effect. Thus, it is possible that Utah would not retain the seat in the 113th Congress.
Section 6. Effective Date. S.160 would require that both the DC and Utah Representatives be elected in the general election for the 112th Congress and be sworn in and seated on the same date as other members of that Congress.
Section 6. Confirming Amendments. Once the full-voting DC Representative takes office, S.160 would amend the District of Columbia Delegate Act to repeal the Office of the DC Delegate, and would amend the District of Columbia State Constitutional Convention Initiative of 1979 to abolish the Office of DC Statehood Representative.
Section 6. Nonseverability of Provisions. S.160 would require that if any part of the Act dealing with the awarding of a representative to DC and Utah (Sections 2 and 3) is declared invalid or unenforceable, all provisions of the Act will be treated as invalid and unenforceable.
Section 7. Judicial Review. S.160 would provide for the 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 January 6, 2009, Senator Lieberman, Chairman of the Senate Homeland Security and Governmental Affairs Committee, introduced S.160, the District of Columbia House Voting Rights Act of 2009. The bill has received bipartisan co-sponsorship, including nine original co-sponsors (Senators Clinton (former), Dodd, Durbin, Feingold, Hatch, Kennedy, Kerry, Leahy, and Sanders) and six co-sponsors (Senators Carper, Landrieu, Levin, McCaskill, Mikulski, and Voinovich). Senate Majority Leader Reid also supports this legislation. The bill, as amended, was favorably reported out of the Senate Homeland Security and Governmental Affairs Committee on February 12 on an 11 to 1 vote. The legislation was then placed on the Senate legislative calendar. A cloture vote on the motion to proceed to S.160 is scheduled for February 24.
A similar measure, H.R.157, also named the District of Columbia House Voting Rights Act of 2009 and sponsored by Rep. Eleanor Holmes Norton (the DC Delegate), was introduced in the House on January 6. The House bill would not, however, prohibit DC from being considered a state for the purposes of Senate representation, require the two new representatives to be seated on the same day, expressly state that Utah receive the new congressional seat, or abolish the offices of the DC Delegate and the DC Statehood Representative once the full-voting DC representative is seated. A related measure, H.R.665, the District of Columbia Voting Rights Restoration Act of 2009, was introduced on January 23 in the House by Rep. Rohrabacher. This legislation would provide voting rights to DC citizens by retroceding the District to Maryland.
A nearly identical measure, S.1257, was introduced in 2007 during the 110th Congress. The cloture motion on the motion to proceed to the measure received a 57 to 42 vote, but 60-votes are required on cloture motions. During that 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 similar House legislation.
Amendments are expected to S.160. Updates will be sent to the DPC-JUDICIARY and DPC-GOVERNMENTALAFFAIRS e-mail lists.
On February 17, the Congressional Budget Office (CBO) issued a S.160.pdf">cost estimate for S.160. CBO estimates that "enacting the bill would increase direct spending by about $140,000 in 2011 and by about $2 million over the 2011-2019 period. In addition, implementing the bill would have discretionary costs of about $1 million in 2011 and about $7 million over the 2011-2014 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."
At the time of this writing, no Statement of Administration Policy (SAP) had been issued for S.160. However, President Obama has been supportive of this legislation in the past, and was a co-sponsor of S.1257 when he was a Senator in the 110th Congress.
Congressional Research Service, “District of Columbia Voting Representation in Congress: An Analysis of Legislative Proposals,” RL33830, Updated February 20, 2009.
Congressional Research Service, “District of Columbia Representation: Effect on House Apportionment,” RS22579, February 20, 2009.
Senator Orrin G. Hatch, “‘No Right is More Precious in a Free Country': Allowing Americans in the District of Columbia to Participate in National Self-Government,” Harvard Journal on Legislation, Vol. 45, Number 2 (287 – 319), available at LINK (Summer 2008).
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.