Congress has long recognized that it can only grant residents of the nation’s capital the ability to participate in federal elections through an amendment to the U.S. Constitution.
Prior to 1961, for example, residents of the District of Columbia were not permitted to vote in presidential elections. Article II, section 1 of the Constitution expressly provides that the Electoral College should be composed of electors from each state, in a number equal to the state’s combined congressional delegation.
In the face of this explicit constitutional language, Congress recognized that a change to the law would require a change to the Constitution itself. That’s why, when Congress granted D.C. residents the right to participate in presidential elections, it went about it the right way — by passing what would become the 23rd Amendment to the Constitution.
Just as Article II of the Constitution limits the right to appoint presidential electors to the states, Article I clearly and repeatedly limits representation in the U.S. House of Representatives and U.S. Senate to the states.
Article I says that the House “shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.” It requires that each Representative, “when elected, be an inhabitant of that state in which he [was] chosen.” It mandates that “each state ... have at least one Representative,” and it provides that “[w]hen vacancies happen in the Representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies.”
Despite the explicit constitutional language giving congressional representation only to states, the U.S. Senate recently approved legislation that would give the District a full voting seat in the House.
Proponents of the bill ignore the fact that the very court that will hear challenges to this bill (under a process known as “judicial review”) have previously ruled on this matter. In Adams v. Clinton, decided in 2000, a three-judge panel of the federal district court for the District of Columbia concluded that the Constitution plainly limited congressional representation to the states. The U.S. Supreme Court later refused to reconsider that ruling.
In order to give District residents a voting seat in Congress, I introduced an alternative proposal that would have accomplished the result constitutionally.
Under my alternative, except for the areas around the Capitol, White House, Supreme Court, and other federal areas, the District would be retroceded to Maryland. This is what was done for the Virginia area of the original District back in 1846. Unfortunately, my amendment was rejected.
Assuming the legislation approved by the Senate is also approved by the House and signed by the president, it will be litigated in the courts, and, I believe, will be struck down as unconstitutional.
Maybe then Congress will be willing to consider retrocession in order to give the residents of the District of Columbia a full vote in the Congress.
U.S. Senator Jon Kyl is the Assistant Republican Leader and serves on the Senate Finance and Judiciary committees. Visit his Web site at www.kyl.senate.gov.