Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Tuesday, February 24, 2009

Taxation with some Representation

It is worth revisiting the DC Vote Act after three years. This bill would give the District of Columbia a seat in the House of Representatives and another seat to the state of Utah, increasing the total number of seats to 437. The increase to 437 would be permanent.

One effect of this bill never mentioned anywhere else other than this blog, I think, is on the electoral college. It would increase the number of presidential electors by one, to 539. Note that it would not increase the number of electors by two, because DC gets 3 electoral votes according to a constitutional amendment and that will not change. The extra vote for UTAH, however, would be added to Utah's total (EV = Senators + Representatives). In one sense, this is irrelevant because the next census will realloate seats before the 2012 election anyway. So Utah doesn't get an "extra" seat for that 2012 election unless the census so determines. But by increasing the H of R permanently to 437, it increases the total number of EV permanently to 539. This means that a tie in the electoral college is no longer possible, although it is possible for no person to get a majority of the electoral college (what throws a presidential election to the H of R is lack of a majority, not a tie, but third party EV are rare). Nate Silver will want to change the name of his blog from to, but it is already taken (I just checked and would have nabbed it for myself).

Is it a good idea, this law? Most of the Republicans voting against it are not doing so on principle, but on the political calculation that this is a freebie seat for the Democrats. They argue that it is unconsitutional without a constitutional amendment, but conspicuously do not support such an amendment, so the argument that they are opposing it merely on constitutional grounds is a bit thin.

Is it constitutional? The argument that it is not constitutional is straightforward: Article I and Amendment XIV of the Constitution provides that the House of Representatives shall be chosen by the people "of the several states." DC is not a state. Done and done.

Does this preclude granting DC residents the right to vote? The argument on the other side is (1) that the constitution gives the Congress the right to legislate for DC in "all cases whatsoever," which is sweeping broad language found nowhere else in the constitution and (2) DC is sometimes treated as a "state" for legal and constitutional purposes where Congress declares it should be so. Quick examples (1) Article IV, requiring states to give "full faith and credit" to proceedings of other states applies to DC courts also. (2) The diversity jurisdiction grant of Article III (giving any person the right to take a case to federal court if sued by a citizen of "another state") works when that "other state" is DC. (3) the prohibition of Aritcle I, Section 8 (e.g., no state shall enter into any treaty with a foreign state or grant any title of nobility) clearly applies to DC government as well (4) the guarantee of Aritcle IV of a "republican form of government" surely applies to DC government.

Another argument I might make is that Amendment XV reads as follows: "The right of citizens of the United Staes to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Congress shall have the power to enforce this article by appropriate legislation." One can argue that - although not contemplated when it was adoptedin 1870 - this amendment gives Congress the right to remedy the problem created by denying the vote to DC residents when it is now a city of 750,000 and 80% of the residents of DC are African-American.

Amendment XXIII passed in 1961 gives DC residents the right to vote for Pressident (or rather it gives Congress the right to direct how DC shall choose electors). Amendment XXIV, passed in 1964, bars a poll tax "by the united states or any state." Surely this applies to DC also in presidential elections.


Dr. Strangelove said...

While I am impressed by the list that LTG compiles of situations where DC is treated like a state, the "Done and done" argument still seems pretty strong to me. There is clear language in the constitution that DC is not to be treated like a state when it comes to selecting Senators and Representatives. In particular the 23rd Amendment hammers home the point when it gives DC electors equal to the number of, "Senators and Representatives in Congress to which the District would be entitled if it were a State." (But to which the District obviously is not entitled, as it is not a state.)

The Law Talking Guy said...

I have actually been persuaded of the opposite. The federal district was ceded to the federal govt by states. If Congress had agreed with the states in 1801, when this was done, that the residents would retain voting rights, nobody would have blinked an eye. Remember that Virginia even clawed back its portion (Alexandria) with no fuss.

So I don't find "done and done" very convincing as to the ability to extend voting rights to DC for the House. The Senate is obviously different, and I mean obviously.