<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:29872.wais]
DISTRICT OF COLUMBIA FAIR AND EQUAL
HOUSE VOTING RIGHTS ACT OF 2006
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
ON
H.R. 5388
__________
SEPTEMBER 14, 2006
__________
Serial No. 109-140
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
_____
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WASHINGTON : 2006
29-872 PDF
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Kimberly Betz, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
----------
SEPTEMBER 14, 2006
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress from the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 4
The Honorable Eleanor Holmes Norton, a Representative in Congress
from the District of Columbia.................................. 5
The Honorable Tom Davis, a Representative in Congress from the
State of Virginia.............................................. 5
The Honorable Chris Cannon, a Representative in Congress from the
State of Utah, and Member, Committee on the Judiciary.......... 7
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Member, Subcommittee on the
Constitution................................................... 8
The Honorable Steve King, a Representative in Congress from the
State of Iowa, and Member, Subcommittee on the Constitution.... 9
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Member, Subcommittee on the
Constitution................................................... 9
The Honorable Melvin L, Watt, a Representative in Congress from
the State of North Carolina, and Member, Subcommittee on the
Constitution................................................... 10
The Honorable Chris Van Hollen, a Representative in Congress from
the State of Maryland, and Member, Subcommittee on the
Constitution................................................... 10
WITNESSES
The Honorable Jon M. Huntsman, Jr., Governor of Utah
Oral Testimony................................................. 12
Prepared Statement............................................. 13
Dr. John Fortier, Research Fellow, American Enterprise Institute
Oral Testimony................................................. 14
Prepared Statement............................................. 16
Mr. Adam H. Charnes, Attorney, Kilpatrick Stockton LLP
Oral Testimony................................................. 20
Prepared Statement............................................. 23
Mr. Jonathan Turley, J.B. & Maurice C. Shapiro Professor of
Public Interest Law, The George Washington University Law
School
Oral Testimony................................................. 49
Prepared Statement............................................. 51
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve Chabot, a
Representative in Congress from the State of Ohio, and
Chairman, Subcommittee on the Constitution..................... 93
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas............. 100
Letter from Greg J. Curtis, Speaker of the House, and Josh L.
Valentine, President of the Senate, Utah Legislature, to
Chairman F. James Sensenbrenner, Jr. in support of H.R. 5388,
September 13, 2006............................................. 104
Testimony of Anthony A. Williams, Mayor, District of Columbia.... 105
Statement of the District of Columbia Affairs Section of the
District of Columbia Bar....................................... 110
Statement of Charles Orndorff, the Conservative Caucus, Inc...... 115
Statement of the American Bar Association........................ 122
Letter from Lawrence H. Mirel, Wiley Rein and Fielding LLP, to
Chairman Chabot and Ranking Member Nadler, September 20, 2006.. 125
Statement of Lawrence H. Mirel, Wiley Rein and Fielding LLP...... 128
Testimony of the DC Statehood Green Party........................ 154
Latham and Watkins LLP, ``Supplemental Analysis Regarding
Possible D.C. Voting Legislation by Representative Thomas M.
Davis, III (R-VA),''........................................... 158
Latham and Watkins LLP, ``Analysis Regarding Possible D.C. Voting
Legislation by Representative Thomas M. Davis, III (R-VA),''... 161
Memorandum from Congressional Research Service,
``Constitutionality of Congress Creating an At-Large Seat for a
Member of Congress''........................................... 166
Letter in support of H.R. 5388 from Robert C. Keithan, Director,
Unitarian Universalist Association of Congregations, to
Representative Tom Davis, May 18, 2006......................... 170
Letter in support of H.R. 5388 from Kay J. Maxwell, President,
League of Women Voters, to Members of the House Judiciary
Committee, May 31, 2006........................................ 171
Letter in support of H.R. 5388 from Marc H. Morial, President and
CEO, National Urban League, June 12, 2006...................... 172
Letter in support of H.R. 5388 from Robert D. Evans, Director,
American Bar Association, to Chairman F. James Sensenbrenner,
Jr., June 16, 2006............................................. 173
Letter in support of H.R. 5388 from Dr. Clark Lobenstein,
Executive Director, the InterFaith Conference of Metropolitan
Washington, to Chairman F. James Sensenbrenner, Jr., June 21,
2006........................................................... 177
Letter in support of H.R. 5388 from Joslyn N. Williams,
President, Metropolitan Washington Council, AFL-CIO, June 27,
2006........................................................... 178
Letter in support of H.R. 5388 from Melvin S. Lipman, President,
American Humanist Association, July 14, 2006................... 180
Letter regarding H.R. 5388 from Ronald Jackson, Executive
Director of D.C. Catholic Conference, and Michael Scott,
Coordinator of D.C. Legislative Network, the Archdiocese of
Washington, July 20, 2006...................................... 181
Letter in support if H.R. 5388 from Patricia M. Wald to Chairman
F. James Sensenbrenner, Jr., July 25. 2006..................... 182
``Jewish Organizations Support H.R. 5388,'' Letter in Support of
H.R. 5388, July 25, 2006....................................... 183
Letter in support of H.R. 5388 from the Leadership Conference of
Civil Rights, September 13, 2006............................... 184
Memo in support of H.R. 5388 from the Leadership Conference on
Civil Rights................................................... 186
Letter in support of H.R. 5388 from Ralph G. Neas, President, and
Tanya Clay House, Director of Public Policy, People for the
American Way, September 13, 2006............................... 188
``Reform Jewish Leader Urges Committee to Support Congressional
Representation for Washington, D.C. Residents.................. 189
Letter in support of H.R. 5388 from Rabbi David Saperstein,
Director and Counsel, Religious Action Center of Reform
Judaism, September 13, 2006.................................... 190
Letter in support of H.R. 5388 from Hilary O. Shelton, Director,
National Association for the Advancement of Colored People
(NAACP) to Members of the House Commitee on the Judiciary,
September 13, 2006............................................. 191
``Interfaith Coalition Supports H.R. 5388,'' Letter in support of
H.R. 5388 from a broad coalition of religious organizations,
September 13, 2006............................................. 193
Letter in support of H.R. 5388 from Richard T. Foltin,
Legislative Director and Counsel, and David Berstein, Executive
Director of the Washington Chapter, The American Jewish
Committee, September 14, 2006.................................. 194
Letter in support of H.R. 5388 from Chellie Pingree, President
and CEO, Common Cause, September 20, 2006...................... 195
``Support Democracy in Our Nation's Capital,'' The Coalition to
Stop Gun Violence.............................................. 196
DISTRICT OF COLUMBIA FAIR AND EQUAL HOUSE VOTING RIGHTS ACT OF 2006
----------
THURSDAY, SEPTEMBER 14, 2006
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:12 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Steve
Chabot (Chairman of the Subcommittee) presiding.
Mr. Chabot. The Committee will come to order.
This is the Constitution Subcommittee. I am Steve Chabot,
the Chairman of the Committee. We wish everybody a good
afternoon, and we welcome you to the House Subcommittee on the
Constitution's legislative hearing on H.R. 5388, the ``District
of Columbia Fair and Equal House Voting Rights Act of 2006.''
The District of Columbia was created by article I, section
8, clause 17 of the United States Constitution, which provides
that ``Congress shall have power to exercise exclusive
legislation in all cases whatsoever over such district, as may,
by cession of particular states and the acceptance of Congress,
become the seat of the government of the United States.''
The rationale for this provision was set forth by James
Madison in Federalist Paper No. 43, in which he wrote, ``The
indispensable necessity of complete authority at the seat of
Government carries its own evidence with it. It is a power
exercised by every legislature of the union, I might say of the
world, by virtue of its general supremacy. Without it, the
public authority might be insulted and its proceedings
interrupted with impunity.''
The emphasis for creating a capital city separate from the
control of any State occurred in 1783, when a crowd of
Revolutionary War soldiers protested outside the building in
Philadelphia in which the Continental Congress was meeting. The
Continental Congress requested assistance from the State of
Pennsylvania, but that State's government refused to send the
militia, forcing the Congress to retreat to New Jersey.
The actual creation of the District of Columbia occurred
during the first Congress, when that body accepted the
cessions, land, of Maryland and Virginia. From 1780 until the
capital officially moved to the District of Columbia in 1800,
the residents of the District were able to vote for the
representatives and senators of the States from which they had
been seated.
Once the District was formally adopted as the seat of
Government, however, the residents of the District ceased to
have voting representation in Congress. Evidence of the
Founders' intent with respect to representational rights of
District residents is sparse. Whatever the intent of the
Founders, the residents of the District have sought
representation for years.
For example, in 1978, Congress passed an amendment to the
Constitution that would have given the District of Columbia
voting representation in both the House and the Senate.
However, that resolution only received the approval of 16 of
the 38 States necessary to ratify an amendment to the
Constitution, and it expired in 1985.
District residents also sought to obtain voting
representation through the courts. In 2000, the United States
District Court for the District of Columbia held that District
residents did not have a constitutional right to representation
in Congress. The court held that the language of article I,
section 2 of the Constitution ``makes clear just how deeply
congressional representation is tied to the structure of
statehood.''
While acknowledging that the court could not give relief to
District residents, the court did urge a political solution to
the problem. H.R. 5388 represents one possible political
solution.
Introduced by Representative Tom Davis of Virginia on May
16, 2006, the bill has 40 cosponsors, including Delegate
Eleanor Holmes Norton, who is with us today. H.R. 5388 would
permanently increase the size of the House of Representatives
to 437 Members from 435, which it is now, and would give one
additional seat to the District of Columbia.
The bill would give the other seat to Utah, which missed
out on an additional representative in the House by
approximately 800 residents during the 2000 apportionment. The
Utah seat would be at-large, meaning that Utah residents would
vote both for their geographic representative and for the
statewide at-large representative, until the next apportionment
prior to 2012 congressional elections.
The bill also contains a non-severability clause, which
ensures that if any section of the bill is struck down as
unconstitutional, the whole bill will be rendered ineffective.
Many commentators have noted that H.R. 5388 is a novel
solution to what has been a pernicious and vexing problem for
Congress for the last 200 years. However, that novelty also
leads to new and challenging constitutional questions.
For instance, in granting the District of Columbia a seat
in the House of Representatives, the bill potentially puts two
sections of the Constitution in conflict. On one hand,
supporters of the bill claim that the District Clause gives
Congress plenary authority over the District of Columbia,
including the power to give it representation in the House of
Representatives.
On the other hand, some scholars point to the language of
article I, section 2, that the House of Representatives shall
be ``chosen by the people of the several states,'' and maintain
that the District, as a non-State, cannot be given voting
representation merely through exercise of the District Clause.
Similarly, H.R. 5388's grant of an at-large seat to the
State of Utah also pits two constitutional principles against
each other. Under the Constitution, Congress enjoys wide
authority both to apportion the seats of the House of
Representatives and to make or alter regulations relating to
the times, places and manner of holding elections.
However, the Supreme Court has held that article I, section
2 of the Constitution requires that, ``As nearly as
practicable, one man's vote in a congressional election is to
be worth as much as another's.''
The question then arises whether this principle of one
person, one vote, is violated by a bill that some might
characterize as giving one person two votes, in the State of
Utah, for a period of 6 years.
These are complicated and interesting issues, and we are
fortunate to have a distinguished panel of experts with us
today that can help us to understand the constitutional
implications of this legislation.
I also would like to thank the Governor of Utah for
appearing before this Subcommittee to explain the importance of
the bill to his State, Utah.
Finally, I would note that this legislation is supported by
many civil rights groups, including the Leadership Conference
on Civil Rights. And we have the distinguished gentleman, Wade
Henderson, here with us this afternoon that we worked very
closely with during the hearings and legislative consideration
of the Voting Rights Act reauthorization, which the President
signed into law this July. And Mr. Henderson and many other
civil rights leaders were present with us at that ceremony.
And we appreciated your involvement in that, Mr. Henderson.
As always, we look forward to working with our friends in
the civil rights community to ensure that all voices are heard
in this process.
I also would like to acknowledge the presence of a number
of other people. One of those people, who has just entered the
room, Mr. Tom Davis, who represents one of the districts in
Virginia. And Mr. Davis, as I had mentioned before, is the
principal sponsor of this legislation.
We also have Delegate Eleanor Holmes Norton, who
represents, obviously, the District of Columbia and has done so
so ably for quite a number of years now.
We also have Chris Cannon here, as well.
I mention these particular Members because they are not
Members of this Subcommittee, but are--at least Mr. Davis is a
Member of the Judiciary Committee. The other two I mentioned
are not--the Judiciary Committee, but not the Subcommittee.
I apologize. Mr. Cannon is a Member of the Judiciary
Committee, but not this Subcommittee. And, actually, he is the
Chairman of one of the Judiciary Subcommittees, as well.
And I want to reiterate the Committee's policy as it
relates to non-Member participation, which is as follows. By
unanimous consent, non-Judiciary Committee Members may submit
statements for the record. They may also participate in the
question-and-answer portion of the hearing and in opening
statements, as well, but their time must be yielded by a
Subcommittee Member.
Judiciary Committee Members who are not Members of the
Subcommittee may also participate under these same rules.
Without objection, the non-Members of the Subcommittee will
be permitted to submit statements for the record and they may
ask questions, subject to being yielded time by another Member
of the Subcommittee, as well.
And I want to reiterate that this is generally not the
Committee's policy to have non-Members sit on the dais. So the
events today don't necessarily bind any future actions of the
Committee, but welcome them here to the dais this afternoon.
I would also like to recognize several other Members,
distinguished people who are here, and not in any particular
order. But I guess it is, since we will acknowledge and thank
the Mayor of Washington, D.C., Mayor Anthony Williams, for
being with us this afternoon and for his service to the
community over these years.
We have Councilmember Carol Schwartz here with us, as well;
Councilmember Dave Catania--I hope I am pronouncing that
correct; Councilmember Adrian Fenty, who prevailed in the
Democratic primary for mayor this year, as well.
And congratulations on that.
And we have Shadow Senator Paul Strauss with us this
afternoon. We have Mary Cheh, who won the Democratic primary in
Ward 3.
And have I failed to recognize any other members of the
council? If so, I apologize. Having been a member of Cincinnati
City Council myself, I definitely want to recognize others.
I am sorry. Kwame Brown is also here, another Member of
Council.
So we welcome you all here this afternoon and thank you for
attending.
At this time, I would recognize the gentleman from New
York, Mr. Nadler, who is the Ranking Member, to make an opening
statement, if he would like to do so.
Mr. Nadler. Thank you, Mr. Chairman. I am interested to
hear that, like the Supreme Court case of Bush v. Gore, our
proceedings today have no precedental value.
Mr. Chairman, I want to welcome our distinguished witnesses
and also welcome our colleagues who have worked so very hard in
the cause of equal voting rights for the citizens of the
District of Columbia.
The District is ably represented by our colleague, Eleanor
Holmes Norton, who has been a tireless advocate for the
citizens of our Nation's Capital. The gentleman from Virginia,
Mr. Davis, has likewise taken on this cause and deserves great
credit for his work to move this effort forward.
We will hear arguments concerning some of the very
difficult legal issues surrounding the approach to D.C. voting
rights taken in this bill, as well as questions arising from
the portions of this bill pertaining to Utah. I look forward to
that testimony.
Some of these legal issues are quite challenging, and we
owe it to the citizens of the District and of Utah, as well as
the rest of the nation, to get it right.
But before we get into the technical questions, I want to
just reiterate the basic and most important thing at stake
here. It is a disgrace, a blot on our nation, that the citizens
of our Capital City do not have a voice in Congress.
Whatever technical issues there may be with respect to
rectifying this problem, we must never lose sight of the fact
that our democracy is permanently stained by the
disenfranchised group of citizens who pay taxes, serve in our
wars, work in our Government and bear all the responsibilities
of citizenship.
Whether you took a cab to work or rode the Metro or bought
a cup of coffee or walked on a sidewalk or were protected by a
police officer or got a parking ticket or participated in this
hearing, your safety, your livelihood, every aspect of your
life, including this hearing, was made possible by people who
have no vote in our democracy. There is no excuse for that.
If we are to have the audacity to hold ourselves out to the
world as a beacon of freedom and democracy, if we want to
lecture other countries about the importance of freedom and
democracy, as this Congress and the President regularly like to
do, we need to clean up our own House and Senate.
So I thank you, Mr. Chairman. I welcome our witnesses and
our colleagues, and I look forward to the testimony.
And I yield the balance of my time to the gentlelady from
the District of Columbia.
Ms. Norton. I thank the gentleman for his kindness in
yielding.
I certainly wanted time to thank Chairman Sensenbrenner and
Chairman Chabot for their courtesies, especially you, Mr.
Chabot, for presiding at this hearing and for your work to
prepare us.
I would like to certainly thank all of the witnesses who
have come forward. You are going to be very helpful to us.
I want to especially thank Governor Huntsman, who had to
come further than most of us, for coming all the way from Utah.
I would be remiss, Mr. Chairman, if I did not thank you for
your work on the recently reauthorized Voting Rights Act. And
if I didn't tell you how much that work means on its own for
the District of Columbia, I need to tell you, sir, that the
residents of the District of Columbia identify with your work
on the Voting Rights Act and see a direct link between that
work and the denial of voting rights for 200 years.
For the people who live here, this is a district that is
two-thirds African-American, but of every background, we have
been denied the right to vote.
I want to acknowledge the presence of the godmother of the
civil rights movement, who, with John Lewis, the only two who
are living, and who designed the work that led to march on
Washington and the civil rights statutes.
We hope for a bipartisan solution, the same solution that
Chairman Davis and I have spent 4 years in crafting.
And I thank you for all your courtesies.
Mr. Chabot. Does the gentleman yield back? The gentleman
actually has a little more time.
Mr. Nadler. Yes, I yield back.
Mr. Chabot. Okay, the gentleman yields back.
The gentleman from Arizona, a Member of the Committee, Mr.
Franks, is recognized for 5 minutes.
Mr. Franks. Thank you, Mr. Chairman. I would like to yield
2\1/2\ minutes to Mr. Davis, please.
Mr. Davis. I thank my friend for yielding.
I think the bill before this Subcommittee is unique and a
creative legislative solution, which provides a win-win
opportunity to the Congress. I hope the Subcommittee will
consider this with an open mind.
For 205 years, the citizens of the District have been
denied the right to elect their own fully empowered
representative to the nation's legislature. This historical
anomaly has happened for a number of reasons: inattention,
misunderstanding, a lack of political opportunity, and a lack
of will to compromise to achieve the greater good.
I have long stated it is simply wrong for the District to
have no directly elected national representation. Let's be
real. How can you argue with a straight face that the Nation's
Capital shouldn't have some direct congressional
representation? For more than two centuries, D.C. residents
have fought in 10 wars, have paid billions of dollars in
Federal Taxes. They have sacrificed and shed blood to help
bring democratic freedoms to people in distant lands.
Today, American men and women are fighting for democracy in
Baghdad, and here in the Nation's Capital, residents lack the
most basic democratic right of all.
What possible purpose does this denial of rights serve? It
doesn't make the Federal district stronger. It doesn't
reinforce or reaffirm congressional authority over D.C.
affairs. In fact, it undermines it and offers political
ammunition to tyrants around the world to fire our way.
In spite of my concerns, I was long frustrated by the lack
of any politically acceptable solution to this problem. That
all changed after the 2000 census, when Utah missed picking up
a new seat by less than a thousand people.
Utah, as you know, contested this apportionment and lost in
court. As I looked at the situation, I realized the
predominance of Republicans in Utah and Democrats in the
District and thought we might be able to fit them together.
The D.C. Fair Act would permanently increase the size of
Congress by two Members. The plan is intended to be partisan-
neutral. It takes political concerns off the table, or at least
it should.
After answering the political question, we moved on to
address whether Congress, independent of a constitutional
amendment, had the authority to give the District a voting
Member. Through hearing testimony and expert opinions, we have
established, by clear authority of Congress, to direct the
political affairs of the District.
As Ken Starr, a former appeals court judge here in the
District, stood before my Committee, the authority of the
Congress, he said, is awesome with respect to the District.
We have also received the expert opinion of Viet Dinh, a
Georgetown law professor and former Assistant Attorney General,
asserting the power of Congress.
Some legal scholars will disagree, but the courts have
never struck down a congressional exercise of the District
Clause. There is no reason to think the court would act
differently in this case.
It is now essentially a matter of political will as to
whether D.C. receives a voting Member of Congress or not.
And today I received a letter from our former colleague,
J.C. Watts, offering his support. ``Your proposed legislation
does a great job of balancing the achievable with the
desirable,'' he wrote.
The District is a wholly unique political entity. It isn't
a State; it isn't a territory. States and territories have
unique constitutional status, but so does the District. The
District was formed to create a seat of Government, where the
Federal Government could exist without interference from any
one State. In a real sense, the District exists to create a
safe place for democracy.
I want to thank Eleanor Holmes Norton, Mayor Williams, the
council, who have come a long way from the control board days,
for their interest in this legislation, and my Ranking Member,
Henry Waxman, for bringing this, and to you, Mr. Chairman, and
to Chairman Sensenbrenner, for making this hearing possible
today.
Mr. Chabot. Thank you very much. The gentleman yields back
to the gentleman from Arizona.
Mr. Franks. Mr. Chairman, I would like to yield the
remainder of my time to Mr. Cannon, please.
Mr. Cannon. I thank the gentleman from Arizona.
And, Mr. Chairman, thank you for holding this hearing.
I would like to first associate myself with the comments
made by the gentleman from Virginia, and also I would very much
like to thank him for his leadership and work on this issue.
I would also like to thank the delegate from the District
of Columbia, Ms. Holmes Norton, for her work on this issue.
As Mr. Davis said and, by the way, as Mr. Nadler said, as
he was making his point--I would associate myself with his
comment--that it is unconscionable that we have people who
fight and die and live and serve in America without being able
to vote.
And so, as Mr. Davis pointed out, it is a matter now of
political will. I think, having polled many of my Republican
colleagues, that the Republicans have the will to do this. I
think, also, the Democrats have the will to do it. And so I
think this is a good day for America.
I would also like to thank my governor for taking the time
to come here today. This is a mark of how important this issue
is Utah. I have literally known the Governor his whole life and
almost all of my life. His gray hair notwithstanding, I am a
little bit older, but he is a good friend and understands this
issue and understands the importance of this issue.
So I appreciate your being here, Mr. Governor.
I have taken the position that this bill is good as it is.
It currently contains an at-large provision. That makes my life
easier, frankly. That means I don't have to run for re-
election, and Rob Bishop's and Jim Matheson's lives, as well.
But I have also said that the important thing here is to
actually have a new district in Utah and the voting rights in
the District of Columbia. And so I am looking very much forward
today to the insights and information we are going to get from
this panel as to what is appropriate as we frame this issue for
final passage on the floor.
And I would just reiterate again in closing, before I yield
back, how pleased I am to see that this issue has come to
fruition, that the political will is here and that people in
the District will actually have a vote.
I have always thought this is an abomination that they did
not, a historical anomaly that we can correct now. And it is
also appropriate for Utah to have, as the next State that would
get a seat, to have that additional seat.
So I want to thank you, Mr. Chairman, again, for holding
this hearing, and yield back the balance of any time that Mr.
Franks has yielded to me.
Mr. Chabot. The time has long since expired. So thank you
very much. The gentleman's time has expired.
We have been joined by several additional persons who we
want to recognize this afternoon. We have another Member of
Council, Vincent Gray, who just won the Democratic primary for
D.C. Council Chairman and is also currently a Member of
Council.
We have been joined by Nancy Zirkin, also with the
Leadership Conference on Civil Rights; Hilary Shelton, who is
the head of the D.C. NAACP chapter.
And we are so pleased to be joined by Ms. Dorothy Hite. For
nearly half a century, Dorothy Hite has given leadership to the
struggle for equality and human rights for all people. Her life
exemplifies her passionate commitment for a just society and
her vision of a better world.
And we welcome you here this afternoon, Ms. Hite.
I would, at this time, like to recognize the distinguished
gentleman from Michigan, who is the Ranking Member of the Full
Judiciary Committee. The gentleman from Michigan, Mr. Conyers,
is recognized.
Mr. Conyers. Thank you so much, Chairman Chabot.
I only wish that we could get the photograph of everybody
in this room right now, because this is a most historic and
distinguished coming together of experts, Government officials,
lovers of democracy, the witnesses, everybody.
And I have got a picture, a jazz picture, where they number
everybody in the room and then you identify, ``Gosh, I didn't
know he was here or she was there,'' because we are at a
historic moment.
And for Chairman Chabot and to Jerry Nadler and Bobby
Scott, Mel Watt, all of you here, here we are back in the
Subcommittee on the Constitution of the United States House of
Representatives Judiciary Committee. This is exactly where we
were several months ago when the Voter Rights Act extension of
1965 was taken up and worked on and deliberated.
And there were as many imponderables, as much difficulty,
as many constitutional questions as there are surrounding the
discussion that will shortly take place here. We are up to it.
We can handle it. We have done it before in this Subcommittee,
and we will be doing it again, with your help.
I go back a little ways in this, too, because I remember
the late Joe Rawl, and what a wonderful spirit it is to have
him watching over us. And Walter Fauntroy, for almost 20 years,
who worked on this subject before us.
There have been many that have sewn the seeds and laid the
path that bring us right here where we are today. The
Constitution gives the Congress the authority to rectify the
issues.
We will be in the courts, we know, but that doesn't bother
anybody that I know within these walls today. But on the heels
of the Voting Rights Act reauthorization, we must now address
this longstanding voter inequity that we all know too much
about already.
The Congress, in a bipartisan spirit, has to work to
protect the rights of the citizens of this great Capital City.
And, Congressman, Chairman Chabot, your work on the Voting
Rights Act distinguishes and gives you the complete authority
to move and lead and guide us to where we have to go from here,
from this historic meeting that brings us all here today. And I
thank you so much.
Mr. Chabot. Thank you very much, Mr. Conyers.
The gentleman from Iowa, Mr. King, is recognized.
Mr. King. Thank you, Mr. Chairman.
And I am looking forward to the testimony on the part of
the witnesses, and I am going to keep my remarks very short in
order to help expedite this process, because I can see by the
crowd here that there is a lot of intensity on this, and I
really want to hear from the witnesses.
I will say that I have a perspective that I would like to
just inject into the thought process as this discussion moves
forward. And that is, I happen to have a profound conviction
that American citizens should be represented in the
reapportionment process in America.
And as I listened to the injustice described by Mr. Davis,
I reflect upon the nine to 11 congressional seats that would be
differently distributed across America if we counted citizens
for our census as opposed to homosapiens.
In other words, we have millions of illegals that are
represented in the United States Congress, whether they can
vote or not, because they are counted for redistricting
purposes. And I believe that is a consideration we could keep
in mind as we correct the injustices.
But I just make that point, and I open my ears and yield
back the microphone to hear the testimony of the witnesses.
Thank you.
Mr. Chabot. Thank you. The gentleman yields back.
The gentleman from Virginia, Mr. Scott, is recognized for 5
minutes.
Mr. Scott. Thank you, Mr. Chairman. I, too, would just make
a very brief comment so that we can get to the witnesses.
Fighting for freedom abroad, when citizens right here in
Washington, D.C., suffer without voting representation in
Congress, no reasonable understanding of democracy can tolerate
this denial of representation.
So I look forward to working with the Committee Members to
remedy this injustice. And we should proceed as expeditiously
as we can and not let the details of whatever happens in Utah
slow us up. We need to move as expeditiously as we possibly can
to remedy this ongoing injustice.
Thank you, Mr. Chairman. I yield back.
Mr. Chabot. Thank you very much. The gentleman yields back.
The gentleman from Florida, Mr. Feeney, is recognized.
Okay, we are back to the gentleman from North Carolina. Mr.
Watt is recognized.
Mr. Watt. Thank you, Mr. Chairman. I thank you for having
the hearing, and I will yield back the balance of my time in
the interest of hearing the witnesses at some point.
Mr. Chabot. Thank you very much.
The gentleman from Maryland, Mr. Van Hollen, is recognized.
Mr. Van Hollen. I thank you, Mr. Chairman. Thank you for
holding this hearing and moving forward on this legislation.
As the representative of the congressional district that
borders right on the District of Columbia, I want to just say
how much I hope that we will move this forward so we can get to
the entire process quickly.
It is absolutely unfair and unjust that one of my
constituents on the Maryland side of the D.C. boundary is able
to elect a Representative who can vote in Congress and the
person right across the street from my congressional district
does not have the ability to elect a Representative who can
vote in Congress. That is wrong. We need to correct that.
I want to thank my colleague, Representative Eleanor Holmes
Norton, for her long efforts and her long championship of
trying to get this through the Congress, not this bill, but
other bills that she has pushed forward on this issue. She has
been sort of indefatigable and a champion here, and it has been
a pleasure to try and work with her on those issues.
I want to congratulate Mayor Williams for his incredible
service.
And it is great to see you and all the Members of the
Council.
To you, Mr. Fenty, congratulations on your recent victory.
And let me just close with this. I want to congratulate
Congressman Tom Davis from Virginia. I also have the privilege
of serving on the Government Reform Committee that he chairs.
And he has really spent a lot of time and effort to craft this
compromise.
My view is that we should have voting rights for the
District of Columbia as a matter of principle. And there have
been legislations to do it. I mean, as a matter of principle,
the residents of this great city should have voting rights. But
I understand the art of the possible. And I want to
congratulate Congressman Davis for taking the lead on this
issue and crafting this piece of legislation.
And I would only say, to all of us on this Committee and
the Judiciary Committee, this is a piece of legislation that
has been much debated in this Congress. It has been much
considered in the Government Reform Committee. It is a very
delicate balance and compromise, and I would urge my colleagues
to not tamper with what I think is a very well put-together
proposal that stands on its own.
I know we are going to hear testimony on various issues
today, but I would just stress the fact that Mr. Davis has
worked for many years for us to get to this point, and I hope
we don't blow it.
Thank you, Mr. Chairman.
Mr. Chabot. Thank you. The gentleman yields back.
Without objection, all Members will have 5 legislative days
to submit additional materials for the hearing record.
Mr. Chabot. And I would like to now introduce formally our
distinguished panel here this afternoon.
Our first witness is Governor Jon M. Huntsman, Jr., of the
State of Utah.
Mr. Cannon, was there anything else you wanted to say prior
to me introducing the governor here?
Mr. Cannon. Let me just reiterate what a great governor
Utah has.
Mr. Chabot. Okay, thank you, excellent.
Governor Huntsman was elected to his position in 2004,
where he represents the 2.5 million residents of Utah that
would enjoy a new Representative under H.R. 5388.
As Governor Huntsman will testify, the issue of obtaining
an additional Representative has been extremely important to
his State, to the point that they litigated the issue all the
way up to the United States Supreme Court.
We welcome you here this afternoon, Governor.
Our second witness is Dr. John C. Fortier, who is a
research fellow at the American Enterprise Institute, where he
focuses his studies on American Government. Dr. Fortier
received his bachelor's degree from Georgetown University and
earned his doctorate from Boston College.
We welcome you here this afternoon, Doctor.
Our third witness is Adam Charnes, who is a partner at the
law firm of Kilpatrick Stockton, LLP, in Winston-Salem, North
Carolina. Prior to that, Mr. Charnes served as Deputy Assistant
Attorney General in the office of legal policy at the
Department of Justice. He received his bachelor's degree from
Princeton University and his law degree from Harvard Law
School.
We welcome you this afternoon, Mr. Charnes.
Our fourth and final witness is Professor Jonathan Turley,
of the George Washington University Law School. Professor
Turley is a nationally recognized legal commentator and
constitutional scholar. He is a graduate of the University of
Chicago and Northwestern University School of Law.
And we welcome you here this afternoon, Dr. Turley.
Before we get started with our testimony this afternoon, I
just want to reiterate the rules that we have in the Committee.
Most of you are probably familiar with the 5-minute rule.
We have a lighting system on there. Each of you will be
given 5 minutes. We would ask you to stay within that time. The
green light will be on for 4 minutes. A yellow light will come
on to let you know you have a minute to wrap up. And the red
light will come on, and we would ask you to please try to
complete your testimony by that time or very close to the light
coming on.
They are kind of small, so it is a little hard to see them.
We used to have big lights. That was old technology. It was
real easy to see. And now we have got these modern, small
lights that you can't see. What the reasoning for that was is
beyond me.
But those are basically the rules within which we would ask
you to follow.
It is also the practice of this Committee to swear in all
witnesses appearing before us. So if you would, if you would
all four please stand and raise your right hand.
[Witnesses sworn.]
Mr. Chabot. All witnesses have indicated in the
affirmative.
We, again, thank you for your attendance and your testimony
here this afternoon.
Governor, we will begin with you. And you will need to
probably pull the mike a little closer and turn it on there.
Thank you.
TESTIMONY OF THE HONORABLE JON M. HUNTSMAN, JR., GOVERNOR OF
UTAH
Governor Huntsman. Thank you, Mr. Chairman and
distinguished Members of this Committee. It is an honor and
privilege to be with you, along with Ms. Dorothy Hite, who I am
honored to be with, as well, and want to thank her for her
commitment to equality and civil rights during her career.
I will confine my testimony to a brief discussion of why I
believe this legislation will not only benefit the State of
Utah, but will simultaneously promote democratic values
inherent in our constitutional system.
As I understand, H.R. 5388 takes a unique approach to a
problem that has remained unresolved for most of our nation's
history. If enacted, this legislation would increase the size
of the House by two votes, giving one to the District, the
other to Utah, the State that should have received an
additional seat in the wake of the 2000 census.
When I say that Utah should have received the additional
seat following the 2000 census, I am referring to two separate
errors committed by the Census Bureau in 2000, each of which
improperly deprived our State of a fourth seat.
The first such error involved the bureau's use of a
statistical procedure known as hot deck imputation, which I
believe violated the spirit, if not the letter, of the Census
Act.
The second error involved the bureau's decision to count
Federal employees residing temporarily overseas, while
arbitrarily refusing to count other similarly situated
Americans living outside the United States.
Although this bill does not address either of those errors
directly, it addresses both of them indirectly by awarding Utah
the seat that it should have received in 2002. The loss of that
seat has cost Utah in many ways over the last 6 years.
In spite of the fact that we are large enough to merit a
fourth Member of Congress, the State has been spread thin, with
only three Members to represent the State's ever-growing
population. That extra Member would have been able to serve on
other House Committees and begin the process of gaining
seniority and influence within the House.
Following 2000, the Census Bureau certified our State's
apportionment population to be roughly 2.2 million, which today
has grown well beyond 2.5 million. Obviously, the citizens of
the State would be better served if each Member only had to
serve 559,000, as opposed to 850,000.
Last December, the Census Bureau reported that Utah was the
fifth fastest growing State in the union. The estimate stated
that Utah grew by 2 percent from July of 2004 to July of 2005.
This sort of continued growth represents a State with a
very challenging matrix of problems. Schools, transportation
infrastructure, social services, emergency services can become
a stress on a very rapidly growing State. In each of these
areas, having a fourth Member of Congress would greatly aid the
State in delivering its message to the Federal Government here
in Washington.
Now, I welcome the fact that, if the legislation passes,
Utah's new seat would be elected on an at-large basis until
2012, when congressional redistricting would automatically take
place based on population figures from the 2010 census.
However, our objective, first and foremost, is to get a
fourth district seat, even if that included early
redistricting.
In short, H.R. 5388 rights the wrongs that were committed
in the 2000 census, benefits those who suffered most as a
result of those wrongs, and does so in a way that makes sense.
I also want to add this point. I have not extensively
studied the constitutionality of the D.C. House Voting Rights
Act, but I am impressed and persuaded by the scholarship
represented in this legislation.
The people of Utah have expressed outrage over the loss of
one congressional seat for the last 6 years. I share their
outrage. I can't imagine what it must be like for American
citizens to have no representation at all for over 200 years.
As a former trade negotiator, as an elected official, I
recognize a finely balanced deal when I see one. Congress
should try to address this problem in a fair and reasonable
way. It is just the right thing to do.
And in conclusion, let me thank all of you on both sides of
the aisle who have worked so diligently to bring us to where we
are today.
Thank you, Mr. Chairman.
[The prepared statement of Governor Huntsman follows:]
Prepared Statement of the Honorable Jon M. Huntsman, Jr.
Good afternoon Mr. Chairman and distinguished Committee members.
Thank you for requesting that I testify today on H.R. 5388, the
District of Columbia Fair and Equal Voting Rights Act of 2006. I will
confine my testimony to a brief discussion of why I believe this
legislation would not only benefit the State of Utah, but would
simultaneously promote democratic values inherent in our constitutional
system. As I understand it, H.R. 5388 takes a unique approach to a
problem that has remained unresolved for most of our nation's history.
If enacted, this legislation would increase the size of the House by
two seats, giving one to D.C. and the other to Utah, the State that
should have received an additional seat in the wake of the 2000 census.
When I say that Utah ``should have received'' the additional seat
following the 2000 census, I am referring to two separate errors
committed by the Census Bureau in 2000, each of which improperly
deprived our State of a fourth seat. The first such error involved the
Bureau's use of a statistical procedure known as ``hot-deck
imputation,'' which I believe violated the spirit, if not the letter,
of the Census Act. See 13 U.S.C. Sec. 195 (prohibiting ``the use of the
statistical method known as `sampling' in carrying out the provisions
of this title''); but see Utah v. Evans, 536 U.S. 452, 473 (2002)
(holding that ``the statutory phrase `the statistical method known as
sampling' does not cover the [Census] Bureau's use of imputation'');
see also id. at 480 (O'Connor, J., dissenting) (``I would find that the
Bureau's use of imputation constituted a form of sampling and thus was
prohibited by Sec. 195 of the Census Act.''). The second error involved
the Bureau's decision to count federal employees residing temporarily
overseas, while arbitrarily refusing to count other, similarly situated
Americans living outside the United States.\1\
---------------------------------------------------------------------------
\1\ Had the Bureau treated all temporary expatriates alike by
simply (a) not limiting its overseas enumeration to federal employees,
or (b) excluding all non-U.S. residents from the census, Utah would
have had a fourth seat beginning in 2002.
---------------------------------------------------------------------------
Although this bill does not address either of those errors
directly, it addresses both of them indirectly by awarding Utah the
seat that it should have received in 2002.
I welcome the fact that, if the legislation passes, Utah's new seat
would be elected on an at-large basis (rather than from a specific
district) until 2012, when congressional redistricting will
automatically take place based on population figures from the 2010
census. I consider that a significant benefit because redistricting--
which is always a difficult, time-consuming, and politically costly
process--would be especially undesirable at this point in time, less
than four years before the next decennial census.
In short, H.R. 5388 rights the wrongs that were committed in the
2000 census, benefits those who suffered most as a result of those
wrongs, and does so in a way that makes sense.
Thank you for this opportunity to testify. The State of Utah and
its 2.5 million residents deserve and welcome the chance to have an
additional seat in the House of Representatives.
Mr. Chabot. Thank you very much, Governor.
Dr. Fortier, you are recognized for 5 minutes.
TESTIMONY OF JOHN FORTIER, RESEARCH FELLOW, AMERICAN ENTERPRISE
INSTITUTE
Mr. Fortier. Thank you, Chairman Chabot and Ranking Member
Nadler and Members of the House Judiciary Subcommittee, for
inviting me to testify on a very important issue of
representation in Congress for the District of Columbia.
In particular, we are discussing the District of Columbia
Fair and Equal House Voting Rights Act of 2006, which has been
ably described by several Members of the Committee.
I wrote a column in The Hill newspaper, my weekly column,
on this bill back in the spring, and I called it ``Much Needed,
Ingenious, and Blatantly Unconstitutional.'' While I meant that
to be provocative, I stand by all three of those statements.
I think, first of all, the bill is much needed.
Representation for the District is much needed. It is a great
injustice that over half a million citizens living in the
shadow of the Capitol are not represented by full voting
Representatives and by Senators. So the aim of the bill is just
right.
Second, the bill is ingenious or it is politically savvy,
in a way that has been described up here. We have political
concerns of Republicans and Democrats which have been finely
balanced.
And on this score, I don't believe that Congress has
overstepped its bounds by expanding the House or by creating
the at-large district. I would agree with the remarks of
Governor Huntsman.
But at the end of the day, I do not believe that this
approach is constitutional. And this, unfortunately, means that
we are left with several ways to give representation to the
District, but all of them are very difficult, difficult to
achieve.
Congress could admit the District as a State. Congress
could, with the consent of Maryland and the District, retrocede
the District to Maryland, as was done in Virginia in the 19th
century, or we could amend the Constitution. Difficult options,
all of them, but I believe the only three alternatives to get
to a just end.
So why do I believe that H.R. 5388 is unconstitutional? For
one simple reason: Congress does not get to decide what bodies
are represented in the House and the Senate. It is the
Constitution that decides that, and the Constitution has
decided that.
Over and over in the Constitution, it is clear that only
States may have Representatives in the House and the Senate.
The textual references are many, but the first is the most
obvious. The House of Representatives shall be composed of
Members chosen every second year by the people of the several
States.
Each State is also guaranteed a Representative. The
franchise in each State must be equal to that of the State's
most popular part of their State legislature.
And even in one instance, the Constitution prescribes that
the House should vote by State. That is, in the case of the
Electoral College, if there is no majority, a pick of the
President of the Electoral College, it goes to the House, and
the House votes by State and the quorum is determined by State.
Again, no reference to other bodies being represented in
Congress, no territories, no other entities. It is States that
are represented and the people of the States in the
Constitution.
The proponents of the approach in the bill before us today
rely heavily on the Seat of Government Clause, a clause that
gives Congress great power of the District. But, in fact, this
provision should best be understood as the power to govern the
District, as a State would govern its own territory.
What is being done to it is it is being stretched to
override other constitutional provisions in the name of the
welfare of the District, and here is where I think the
interpretation of that clause goes wrong.
If we were to accept this power, which is broad, but accept
it, as the proponents would argue, Congress could give
representation to the Senate by simple legislation. They could
have granted voting in the presidential election, as was done
in the 23rd amendment, by simple legislation and not by
constitutional amendment.
It would not be bound at all by proportionality. It could
grant the District two Representatives or 10 or 436
Representatives. And if you doubt that power, you look at the
bill itself. As part of the delicate compromise, the bill
limits the District to one Representative, no matter what
population has. If the District grows substantially, it still
only gets one Representative in the bill before us.
And then if Congress can create the Representative, it can
also take that Representative away by legislation. Imagine
having a Representative for the District of Columbia and a
tough votes comes by and then Congress decides to punish the
District and the Representative by withdrawing that seat,
again, by simple legislation.
For all these reasons, I think the more legitimate methods,
the more difficult methods are the way to go in giving
representation to the District in Congress.
Finally, I will add that the Territories Clause would be
analogous to the Seat of Government Clause that we rely on
here. If Congress may do so for the District, they may do so
also for the territories, and the territories vary widely in
size. We could give a Representative to small islands with a
population of a couple hundred people or larger territories
with certainly much less than a traditional congressional
district.
So the unfortunate conclusion of my testimony is that,
while the aim of the legislation is just, we have other courses
of action that we are going to have to take because they are
legitimate constitutional options.
Thank you, Mr. Chairman.
[The prepared statement of Dr. Fortier follows:]
Prepared Statement of John Fortier
Thank you Mr. Chairman, Mr. Ranking Member, and members of the
subcommittee for inviting me to testify on the important subject of
voting rights for residents of the District of Columbia.
The purpose of this hearing is to explore H.R. 5388 the ``District
of Columbia Fair and Equal House Voting Rights Act of 2006'' which
creates a House seat for the District of Columbia.
H.R. 5388 would increase the size of the House to 437 members. It
treats the District of Columbia as a district that will be represented
in the House. It also calls for a second new district to be located in
Utah, as Utah narrowly missed out on a seat in the last re-
apportionment. That Utah district would be an at-large district, and
the three current Utah districts would remain intact. After the next
reapportionment, the District of Columbia would still be considered a
district with a representative, and the remaining 436 seats would be
apportioned among the states based on the current method of
apportionment.
I wrote my weekly column in the Hill on this bill last spring,
which I described somewhat facetiously as ``much-needed, ingenious, and
blatantly unconstitutional.'' \1\ I say somewhat facetiously because
even though the sentence had a provocative tone, I believe all three of
these descriptions of H.R. 5388 are true. First, a proposal to grant
the citizens of the District the right to vote for congressional
representatives is much needed. It is an injustice that for over two
hundred years District residents have not had congressional
representation. Second, H.R. 5388 is ingenious in the way it balances
the partisan concerns of Republicans and Democrats that arise over such
an issue. Third, as much as I agree with the aim of the legislation and
admire the political savvy of its authors, H.R. 5388 is not the answer
to the District's problems. The central premise that Congress can by
simple legislation create a representative for the District is wrong.
The Constitution, not Congress, has determined that the House and
Senate will be made up of representatives of states and states alone.
Congress can no more change the Constitution on this matter by simple
legislation than it could repeal the first amendment or allow sixteen
year olds to serve as president.`
---------------------------------------------------------------------------
\1\ John C. Fortier, ``DC Colony,'' The Hill, May 17, 2006.
---------------------------------------------------------------------------
The unfortunate conclusion of my remarks is that because H.R. 5388
is not constitutional, the road to representation for DC residents is
difficult. There are three legitimate ways to accomplish this end: (1)
to admit the District as a state into the United States; (2) to
``retrocede'' the District to Maryland; (3) to amend the constitution
to allow DC to retain its current status but also grant it
representation in Congress. All are legitimate means to a just end, but
all would face significant political opposition.
it is an injustice that dc residents are not represented
in the house and senate
The District of Columbia has over 500,000 residents. Only in the
past forty years have they been entitled to vote in presidential
elections. They have no full voting representatives in either the House
or the Senate.
While residents of U.S. territories also have no voting
representation in Congress, the case of the District is even more
compelling. The seat of government has been here since 1800, but DC has
all the while been unrepresented in Congress and has watched as many
territories have become states and now enjoy representation in
Congress. The District is integrally connected to the U.S., not
separated by ocean or language from the fifty states.
One should not quarrel with the message on the District's license
plate, ``taxation without representation.'' The message is essentially
correct.
the ingenuity and political savvy of the davis/norton proposal (h.r.
5388)
The Davis/Norton proposal tries to address the partisan political
concerns of Democrats and Republicans over the issue of DC
representation. In all likelihood, the District would elect a
Democratic representative. To balance this, the proposal adds an
additional representative to Utah, which barely missed out on a fourth
representative last re-apportionment. At least until the next
apportionment, one of the two new seats created would likely be
represented by a Republican and one by a Democrat. The bill also
provides that the new Utah representative would be elected at-large and
that the existing districts in Utah will remain the same until the next
apportionment and redistricting. This was again done to delicately
balance political concerns, as Utah Democrats worried that a new
redistricting might adversely affect the district lines of Utah's sole
Democratic Representative.
While this arrangement is unusual, I see no constitutional
objection to it. Congress may increase the size of the House to 437 by
simple legislation. The at-large district is temporary. And it is well
within Congress's power to regulate the time, place and manner of
elections and therefore to prescribe such an at large district.
Congress has previously weighed in legislatively to require that states
employ single member districts, but it is within Congress's power to
alter that judgment overall by allowing or even requiring at large
districts. It may also carve out a specific exception to its general
rule requiring states to create single member districts as H.R. 5388
proposes to do.
Overall, the provisions of H.R. 5388 that increase the size of the
House and the creation of an at-large district are well thought out and
constitutionally unobjectionable.
why h.r. 5388 is unconstitutional
The Constitution clearly indicates that Congress shall be composed
of representatives from states and states alone. Congress itself does
not determine the makeup of Congress, it is the Constitution that makes
that determination. Of course, Congress would play an important role in
the admission of states, in the retrocession of the District to the
state of Maryland, and in the constitutional amendment process. But
through the normal legislative process, Congress cannot get around the
Constitution's clear language that both the House and the Senate are
composed of representatives from states and states alone.
The textual evidence in the Constitution that the people of states
are to be represented in the House and Senate is extensive:
``The House of Representatives 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.''
``No person shall be a Representative who shall not have
attained to the age of twenty five years, and been seven years
a citizen of the United States, and who shall not, when
elected, be an inhabitant of that state in which he shall be
chosen.''
``each state shall have at least one Representative"
``When vacancies happen in the Representation from any state,
the executive authority thereof shall issue writs of election
to fill such vacancies.'' [Article I, Sec.2, (my emphasis)]
There are many similar references to states in Article I, section 3
of the original Constitution which describes how state legislatures
were to choose senators. The seventeenth amendment which was ratified
in the early twentieth century and which provided for a popular vote
for senators also indicates that it is the people in the states who are
to be represented in the Senate:
``The Senate of the United States shall be composed of two
Senators from each state, elected by the people thereof, for
six years; and each Senator shall have one vote. The electors
in each state shall have the qualifications requisite for
electors of the most numerous branch of the state
legislatures.''
``When vacancies happen in the representation of any state in
the Senate, the executive authority of such state shall issue
writs of election to fill such vacancies: Provided, that the
legislature of any state may empower the executive thereof to
make temporary appointments until the people fill the vacancies
by election as the legislature may direct.'' [Amendment XVII
(my emphasis)]
The Constitution also provides that states will have the power to
regulate elections, although Congress may alter those regulations:
``The times, places and manner of holding elections for
Senators and Representatives, shall be prescribed in each state
by the legislature thereof.'' [Article I, section 4 (my
emphasis)]
Finally, the Constitution prescribes an instance when the votes in
Congress will be counted by state delegation rather than by individual
members. If no presidential candidate receives a majority of the votes
of the presidential electors, the House is called upon to choose the
president from among the top three candidates. Under these
circumstances, a quorum shall be representatives from two thirds of the
states, not of the members themselves. And the vote to select a
president shall require a majority of state delegations:
``if no person have such majority, then from the persons having
the highest numbers not exceeding three on the list of those
voted for as President, the House of Representatives shall
choose immediately, by ballot, the President. But in choosing
the President, the votes shall be taken by states, the
representation from each state having one vote; a quorum for
this purpose shall consist of a member or members from two-
thirds of the states, and a majority of all the states shall be
necessary to a choice.'' [Amendment XII (my emphasis)]
The textual evidence that Members of the House and Senators shall
be representatives of people in states is overwhelming. It is not
described by a throwaway or ambiguous line in the Constitution, but
pervades the whole text. The framers of the original Constitution and
of later amendments were crystal clear that representation in Congress
was for people in states. They knew of the case of territories (The
Northwest Territory was in existence prior to the ratification of the
Constitution) and made provisions for Congress to administer them. They
included constitutional provisions for the creation and governance of a
district for the seat of government, but they never provided for
representation in Congress for territories or the seat of government.
selected history of attempts to give representation to the district
Numerous efforts have been made to give representation to the
District of Columbia.
In two prominent cases, proponents of these efforts sought to amend
the constitution, but did not pursue a simple legislative strategy that
is urged by H.R. 5388.
The enactment of the 23rd amendment gave District residents the
right to participate in presidential election. Using the logic that is
behind H.R. 5388, Congress could have achieved the same result by
legislation, using the Seat of Government Clause as a justification for
passing a simple piece of legislation to grant DC residents the vote in
presidential elections. If such an option were legitimate, why would
the proponents of the 23rd amendment have spent the significant time
and energy needed to secure \2/3\ votes in both houses of Congress and
spent nearly a year seeking ratification in three quarters of the
states?
Similarly, a major effort to grant DC residents the right to vote
in congressional elections was proposed in the form of a constitutional
amendment that passed both houses of Congress in 1978. Proponents of
this measure then pursued the matter in state legislatures but failed
to secure ratification in three quarters of the states. After seven
years had elapsed, as the amendment prescribed, the ratification
failed. Again, why would the proponents of representation for DC have
used such a long, arduous, and ultimately unsuccessful process if the
whole matter could be resolved by simple legislation?
In addition to these two efforts to amend the Constitution to give
representation to the District, consider also the attempt in the 103rd
Congress to give delegates from the District and territories the right
to vote in committee and in the committee of the whole. The House
changed its rules to this effect. Why would the proponents of
representation for DC and the territories have sought only these
changes? Why would they have not proposed full voting privileges for
delegates, making them essentially equal in status to representatives
from states?
The answer is given in part by Michel v. Anderson.\2\ When some
members of Congress sued claiming these rules changes went too far, the
DC Circuit Court affirmed the change in rules, but noted that it passed
constitutional muster because it did not give the essential qualities
of representatives to delegates. In a nutshell, it was acceptable to
allow delegates to participate in all the deliberations and secondary
votes in committees including the committee of the whole as long as
their votes would not be decisive on votes on the final passage of
bills.
---------------------------------------------------------------------------
\2\ 41 F.3d 623 No. 93-5109
---------------------------------------------------------------------------
In short, proponents of representation for DC have worked long and
hard to pass constitutional amendments or have settled for less than
full privileges for delegates because they did not believe that a
simple legislative solution was legitimate.
the seat of government clause
The proponents of granting the District representation by simple
legislation rest much of their case on the clause in Article I that
grants Congress the power to control the affairs of the District.
``Congress shall have the power...to exercise exclusive
Legislation in all Cases whatsoever, over such District (not
exceeding ten Miles square) as may, by Cession of particular
States, and the Acceptance of Congress, become the Seat of the
Government of the United States.'' [Article I, sec. 8]
Clearly, the power granted to Congress over the District is broad
in scope. But this power is best understood as the power to govern the
affairs of the District as a state government would govern over its
territory. Congress has even somewhat greater power over the District
than a state government has over its territory, as it is not subject to
some of the restrictions the Constitution places on states. For
example, Congress could coin money for the District, if it deemed that
course of action wise, as the Constitution prevents states from coining
money, but does not impose a similar restriction on the governance of
the District.
But what cannot be done under the Seat of Government clause is to
grant the District powers that override other constitutional language.
The Seat of Government Clause cannot be an excuse to use simple
legislation to amend the constitution through the back door.
This is, however, what proponents of the Davis/Norton approach
propose to do. They describe the Seat of Government Clause as
``majestic in scope.'' \3\ It is described in such grandiose terms that
Congress might use the Seat of Government Clause for any end as long as
it relates o the welfare of the District's residents.
---------------------------------------------------------------------------
\3\ Testimony of the Hon. Kenneth W. Starr before the House
Government Reform Committee, 2154 Rayburn House Office Building,
Washington, D.C., June 23, 2004, p. 4. See also Viet Dinh and Adam
Charnes, ``The Authority of Congress to Enact Legislation to Provide
the District of Columbia with Voting Representation in the House of
Representatives.'' November 2004 found at http://www.dcvote.org/pdfs/
congress/vietdinh112004.pdf
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If this power is as broad as proponents suggest, then Congress
could have granted District residents the right to participate in the
election of a president by simple legislation rather than through the
23rd amendment. Under this broad interpretation Congress could give the
District representation in the Senate.
Again under this interpretation of the Seat of Government Clause,
there is no reason why Congress would be limited to providing
representation to the District that is proportional to its population.
While states would be subject to apportionment for their
representatives, Congress could give the District two representatives,
or ten, or four hundred thirty six. In fact, the H.R. 5388 deviates
from proportionality by mandating that the District will never have
more than one representative in the House no matter how large its
population grows.
Similarly, there is no reason why such a broad power would be
limited by constitutional provisions that give two senators to each
state; Congress might grant the District as many senators as it saw
fit. Congress might eliminate age or citizenship requirements for
District representatives.
Under such a broad interpretation almost every constitutional
provision would fall if Congress were to act in its capacity to govern
the affairs of the District.
In addition to the constitutional problems arising under such a
broad interpretation of the Seat of Government Clause, consider a
practical one. Since Congress has created the District of Columbia's
seat in the House, it could take it away by legislation. Suppose the
majority party wanted to punish the District or the particular
representative of the District, Congress could pass a law abolishing
the office. Congress does not have the power to take away all
representation from any state, as the Constitution guarantees each
state at least one representative. But the District's seat would rest
on the whim of the legislature.
treating the district as a state
The fallback position for those advocating the use of the Seat of
Government Clause as a basis for giving representation to the District
is that Congress has the power to treat District as a state, as it has
done in certain pieces of legislation and as courts have held in
certain instances, and therefore it may convey upon the District all of
the attributes of statehood, including right to be represented in
Congress.
But if the Seat of Government clause is broad enough to allow
Congress to ignore the many clear textual references that only the
people in states are represented in Congress then why would this clause
be limited to treating the District as a state and then abiding by
other constitutional language?
It is true that in certain contexts Congress and the Courts have
treated the District as a state. But variety of circumstances in these
cases does not point to a general rule that Congress may treat the
District of Columbia as a state. The central case of National Mutual
Insurance Company of the District of Columbia v. Tidewater Transfer
Company \4\ illustrates the divisions on this issue rather than the
ensus. The case was decided 5-4 and the opinion upheld a law that
allowed District residents access to federal courts in diversity suits.
However, only two justices held the view that the District should be
treated as a state. Three justices in the majority upheld the law, but
explicitly refused to consider the District as a state. They instead
relied on the Seat of Government Clause, but did not argue that the
clause treated the District as a state.
---------------------------------------------------------------------------
\4\ 337 U.S. 582 (1949).
---------------------------------------------------------------------------
territorial jurisdiction
As the Seat of Government Clause pertains to Congress's power over
the District of Columbia, so the Territorial Clause pertains to
Congress's similar powers over territories:
``The Congress shall have power to dispose of and make all
needful rules and regulations respecting the territory or other
property belonging to the United States.'' [Article IV, sec. 3]
The language of the Territorial Clause is different than that of
the Seat of Government Clause, but it is no less ``majestic'' in its
scope. The logical way to interpret this clause is to read it as
Congress having the power to govern the territory as a state government
governs its own territory. Even though the language is not identical,
in practical effect, Congress under the Territorial Clause should have
the same role in governing the territories as it does in governing the
District under the Seat of Government Clause.
But if the Seat of Government Cause is to be read so broadly as to
allow Congress to provide representation for the District in Congress,
then surely Congress could provide the same representation for the
territories under a similarly broad reading of the Territories Cause.
This power would not only apply to organized territories or territories
that currently have delegates in Congress, but would apply to all
territories. And the territories vary widely in population. Puerto Rico
has nearly 4 million people and would qualify for five or six
representatives in the House if it were a state, but most of the
territories are significantly smaller. The population of the Northern
Mariana Islands, for example, is approximately 80,000. Wake Island is
inhabited by approximately 200 civilian contractors. Does Congress have
the power to grant these territories representation in Congress by a
simple act of legislation under the guise of governing the territories?
conclusion
The residents of the District of Columbia deserve congressional
representation. Unfortunately, the legitimate means for granting that
representation are very difficult to pursue. There does not seem to be
strong political sentiment in favor of statehood for the District,
retrocession of the District to Maryland or a constitutional amendment
granting DC congressional representation. Nevertheless, they are the
only legitimate alternatives to get congressional representation for
District residents.
The ``District of Columbia Fair and Equal House Voting Rights Act
of 2006'' has its heart in the right place, but it will not pass
constitutional muster. It too easily glosses over the numerous textual
references in the Constitution that grant representation only to the
people of states. And it builds on a foundation of a much too expansive
view of the Seat of Government Clause which might have many adverse
consequences if applied in different contexts.
Mr. Chabot. Thank you very much, Doctor.
Mr. Charnes, you are recognized for 5 minutes.
TESTIMONY OF ADAM H. CHARNES, ATTORNEY, KILPATRICK STOCKTON LLP
Mr. Charnes. Thank you. Good afternoon, Mr. Chairman,
Ranking Member Nadler and other Members of the Subcommittee. I
appreciate very much the opportunity to discuss the
constitutionality of H.R. 5388, the ``District of Columbia Fair
and Equal House Voting Rights Act of 2006.''
I believe that it is likely that the courts would hold the
Congress indeed possesses the constitutional authority to enact
legislation, providing that the District of Columbia be
considered a congressional district for purposes of
representation in the House of Representatives.
The source of this authority is the Constitution's District
Clause, which is article I, section 8, clause 17. The District
Clause authorizes Congress to establish the District as the
seat of Government, and it empowers Congress to ``exercise
exclusive legislation in all cases whatsoever over such
district.''
The courts repeatedly have held that the District Clause
gives Congress extraordinary and plenary power of the District.
Indeed, as one court explained, Congress has ``full and
unlimited jurisdiction to provide for the general welfare of
citizens within the District of Columbia by any and every act
of legislation which it may deem conducive to that end.''
In short, Congress's authority under the District Clause is
so expansive that it encompasses the power to provide D.C.
residents with a Representative in the House.
While downplaying the District Clause, those who take the
position that this bill is unconstitutional principally rely on
article I, section 2, clause 1 of the Constitution. As was just
noted, that provision states that the Members of the House
shall be ``chosen every second year by the people of the
several states.''
Critics of the bill claim that the use of the word
``state'' in this provision means that only citizens in the 50
States can be represented by a voting Member of the House.
While this argument has superficial appeal, upon close
inspection, I believe that it overlooks history, it overlooks
prior judicial interpretations of the word ``states'' as used
in other provisions of the Constitution, and it overlooks other
legislation that prevents disenfranchisement from congressional
representation of U.S. citizens.
In my remaining time, I will briefly summarize the basis
for these conclusions.
First, as to history, in 1790, Congress accepted the
cessions of land by Maryland and Virginia to create the
District. Thus, as of 1790, residents within the District were
no longer citizens of those States.
Nonetheless, by statute, Congress provided that the laws of
Maryland and Virginia would continue to apply. Thus, from 1790
to 1800, residents within the District voted in congressional
elections in Maryland and Virginia; not because they were
citizens of those States, for they were not, but because
Congress, acting under the District Clause, legislated that
those States' laws would apply, pending further congressional
legislation. It is that precedent which I think this bill
relies on.
Second, critics of the bill ignore numerous instances in
which the courts have upheld laws that treat the District as if
it were a State for purposes of the Constitution. The most
prominent example is the Supreme Court's Tidewater case.
The Constitution provides, of course, that Congress may
grant Federal courts jurisdiction over lawsuits ``between
citizens of different states.'' Despite this language, the
Tidewater plurality held that the District Clause permitted
Congress to expand the Federal courts' diversity of citizenship
jurisdiction to include disputes between citizens of a State
and citizens of D.C.
Third and finally, H.R. 5388 is directly analogous to the
Uniformed and Overseas Citizens Absentee Voting Act. Some U.S.
citizens living abroad are not citizens of any State under
State law and, therefore, would not be permitted to vote in
Federal elections. In order to prevent the disenfranchisement
of such overseas citizens, Congress authorized them to vote in
Federal elections in the last State in which they lived.
Thus, Congress has already taken the step of giving the
vote for House Members to U.S. citizens who do not fall within
a hyper-literal interpretation of the phrase ``people of the
several states'' in article I, section 2, clause 1.
Again, Mr. Chairman, thank you very much for the
opportunity to share these views with the Committee, and I look
forward to answering your questions.
[The prepared statement of Mr. Charnes follows:]
Prepared Statement of Adam H. Charnes
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Mr. Chabot. Thank you very much.
Professor Turley, you are recognized for 5 minutes.
TESTIMONY OF JONATHAN TURLEY, J.B. & MAURICE C. SHAPIRO
PROFESSOR OF PUBLIC INTEREST LAW, THE GEORGE WASHINGTON
UNIVERSITY LAW SCHOOL
Mr. Turley. Thank you, Mr. Chairman, Ranking Member Nadler,
Chairman Conyers, distinguished Members of the Committee. It is
a great honor to come and testify before you today on such an
important subject and to join such a distinguished panel.
My whole life, I have gone to countless weddings, and I
have always wondered whether anybody ever stood up at a
wedding, when they invited anyone who would object to this
marriage to come forward, and now I know.
It is a very regrettable position to be in, because I have,
as everyone, I believe, at this table has done, stated strong
views that the current status of the District is nothing short
of an outrage. It is a gross embarrassment to any democracy to
have so many of our citizens without a vote in Congress.
But this has long been a debate about means, not end. I
have never met anyone who is comfortable with the status of the
District. And I have concluded that H.R. 5388 is the wrong
means. I believe that it is fundamentally flawed on a
constitutional level.
As hard as I have tried to come to an opposing position and
to stay quiet as this marriage occurs, I have to respectfully
but strongly disagree with the analysis put forward by
Professor Dinh, Adam Charnes and Ken Starr.
I also believe that the second part of this legislation
involving the at-large district for Utah also raises some very
difficult questions, legally. I am going to focus on the issue
of the D.C. district in my oral testimony, but I have laid out
both these positions in detail in my written testimony.
The current position of the District is something of an
historical anomaly, and with the passage of time, the original
purposes of the District have receded. As you know, in 1783,
the Congress was interrupted in its meeting in Philadelphia, as
the chairman ably described.
People like James Madison wanted to create a situation
where Congress would no longer be ``interrupted with
impunity,'' as he said. This was, indeed, one of the guiding
purposes of the creation of the Federal enclave. It was not the
only purpose.
There was considerable debate about the Federal enclave and
various reasons held forth for creating a non-State entity. To
me, that legislative history is perfectly clear. The intention
of the Framers was to create a non-State entity, and the non-
voting status was part of that intent.
So while the purposes have receded, in terms of why we went
in this direction originally, the intent to create a non-State
entity is quite clear. Moreover, I do not believe that simply
because we have the symbolic purpose left--that is, the desire
to have neutral ground for the seat of the Government--that it
should be dismissed.
I actually think that is an important reason and that the
seat of Government should remain on neutral ground, should
remain on a non-State entity. And, for that reason, I have
advocated for what I have called a modified retrocession plan,
where the District would be shrunk to a very small size, to the
seat of Government, and the remainder receded to Maryland.
I won't go through the textual analysis, which is laid out
in my testimony, but I do believe that article I is clear when
it refers to people of the several States. I think it is clear
on its face, and I think it is clear from the legislative
history.
I have gone through that history in my testimony to show
that the non-voting status of the District was discussed
regularly by the framers. It was viewed back then as an
abomination.
This is not a new thing. When it was first proposed, there
were objections that a non-voting populous was an affront
toward democratic traditions, and there were proposals back
then to avoid that status which were rejected.
Alexander Hamilton noted that eventually this District
would grow to a size when we would have to inevitably give it a
seat in Congress. He made a proposal to allow that to happen.
That was also rejected.
So you have text and you have legislative history, in my
view, that is quite clear as to the intention behind these
constitutional provisions.
I also believe, however, that this is the wrong way to go.
I have laid out various policy implications that I submit to
you, but I will simply note that what Congress giveth Congress
can taketh away.
You are about to take one, frankly, grotesque curiosity of
the District's current status and replace it with another. You
are going to create some type of half-formed citizen that can
vote in the House for a non-State entity. I think it is a
mistake.
It will also be the only district that does not grow with
the size of its populace. It also puts you on a very slippery
slope in terms of what can happen in the future. It is not that
I do not trust all of the Members in this room, but we all know
that mischievous times lead to mischievous acts, and a future
Congress may not be as restrained as you are.
Once you cross this Rubicon, you will lay open, in my view,
what was a very stable aspect of the Constitution and give it a
fluid and, frankly, dangerous meaning.
Unfortunately, my time has expired, and so I thank you
again for allowing me to appear to today.
[The prepared statement of Mr. Turley follows:]
Prepared Statement of Jonathan Turley
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Mr. Chabot. Thank you very much, Professor.
We will now move to the questioning portion by the panel up
here, and the Chair will yield himself 5 minutes for that
purpose.
And I will begin with you, Professor, if I can. Would you
please elaborate on the alternative proposal for representation
for D.C. that you have referred to and why you feel that it
would be superior to H.R. 5388?
Mr. Turley. Well, thank you, sir.
There has always been a statement from the original act of
ceding the land from framers and from courts that the District
had two options available to it, Statehood or retrocession, and
that appears regularly in history behind these provisions.
In my view, retrocession is the most obvious way of dealing
with this, and I also do not believe that it is such a horrible
option. What I have suggested in the proposal I have laid out
in the testimony is to restrict the District to the actual seat
of Government, extending from Capitol Hill down to the Lincoln
Memorial. The remainder would be retroceded to Maryland.
But I have suggested a three-phase process in which the
political retrocession would occur immediately, so that the
District would immediately be able to vote with Maryland.
You would then establish a commission, probably a three-
person commission, much like the one that assisted George
Washington, for the next two stages.
The second phase would be to incorporate those aspects of
law enforcement and public services that are necessary into
Maryland. And the third stage would be the incorporation of any
tax and revenue issues.
When we have looked at this in my office, it does not seem
insurmountable. And, indeed, Maryland could grant the District
special status. It has that authority. It can grant the
District special tax status.
So the District can remain unique. But there remains this
conceptual problem with replacing that D.C. with an MD, and
that is, frankly, what we are dealing with here.
But I don't believe that symbolic barrier is enough to take
this more risky course, because I believe if you take this
course, it will be challenged and the District will not be able
to gain from reform. It will be frozen in political amber until
this is resolved, and I believe it could very well be struck
down.
Mr. Chabot. Thank you very much, Professor.
Dr. Fortier, I would like to turn to you, if I can. In your
written testimony, you set forth a number of alternative
proposals for achieving representation, also, for the District
of Columbia. If you were a Member of Congress, which of the
proposals set forth would you champion, and why?
Mr. Fortier. Well, the three proposals are to adopt the
District as a State, to have some sort of retrocession, like
Professor Turley mentioned, or to amend the Constitution. They
all have variations in how you would do it. So I guess there
are pluses and minuses.
I do think the retrocession has the advantage of
politically balancing the concerns that would come up better
than the others in that the State of Maryland would still have
two Senators, it would not change the balance in the Senate,
and it would also, I suppose, not so quickly change the balance
in the House, with a district that would have to be part of the
District and part of Maryland.
I think all of these are possibilities. They are all
difficult. They are difficult to achieve. A constitutional
amendment would be the cleanest one. The constitutional
amendment would eliminate many of the problems with the other
areas.
I think Professor Turley, I am not sure how he would deal
with this, but one of the difficulties with retrocession is
what is left of the District, this small part of the District.
We have the 23rd Amendment; the 23rd Amendment gives the
District the right to vote in presidential elections. Some
scholars have suggested that the President of the United States
and the First Lady would be the two voters in that district and
then get three votes in the Electoral College.
Mr. Turley. And the twins.
Mr. Fortier. Those who lived at home, maybe the headmaster
of the page dorms. You have a small number of people who live
in the very small area.
But I think these are technical questions that could be
dealt with. I think we could not have a District. I think there
are reasons for it, but I think that we could give up the idea
of having the District.
While I think it is symbolically beneficial to have the
seat of Government or the small area that Professor Turley
would recommend, I think it is not necessary to have that. If
either the District became a State or if it were given back to
Maryland, we could sort of abolish the smaller part.
Mr. Chabot. Thank you. I have only got about 20 seconds
left, so rather than ask another question, which wouldn't
really have time to be answered, just let me explain what is
going on, the bells and everything.
We have a series of votes on the floor of the House now.
There is going to be, we believe, three votes. The first one is
a 15-minute vote, then two 5-minute votes after that. So it
will be approximately a half-hour.
Now, Mr. Nadler has indicated that he will, unfortunately,
be unable to come back, but what he is going to do is yield his
time to Ms. Eleanor Holmes Norton, so she will have that 5
minutes in order to ask questions in his place.
So we will, at this time, be in recess. We will be back in
approximately a half-hour. And I would encourage all Members to
come back immediately after the third vote, if it all possible.
We are in recess.
[Recess.]
Mr. Chabot. The Committee will come back to order. Take a
seat, please.
I have been informed that Governor Huntsman and Professor
Turley have to catch a 4:15 flight, both back to Utah. So I
know your time is somewhat limited at this point.
So I assume that all the witnesses would be agreeable to
taking written questions, if all Members haven't had time to
ask.
All four witnesses have indicated in the affirmative.
Mr. Scott, you are recognized for 5 minutes.
Mr. Scott. Thank you. Thank you, Mr. Chairman.
Mr. Chairman, I just have a couple of concerns. First of
all, when you have the Capital without voting representation,
that makes no more sense than Richmond, Virginia, not having
representation in the Virginia General Assembly. So I would
hope that we can fix this glitch as soon as possible. We have a
number of concerns.
And since the gentlelady from Washington, D.C., is here, I
would like to yield her the balance of my time, so that she can
begin questions.
Mr. Chabot. The gentleman yields to the gentlelady from
Washington, D.C. The gentlelady is recognized.
Ms. Norton. The gentleman from Virginia is very kind.
I do want the Governor, before he leaves--I understand Mr.
Charnes has agreed to stay. I think it is important for us to
be able to have an exchange on this constitutional questions.
But I do want to ask the Governor a question. A central
feature of assuring what has always been the case whenever
Congress has considered adding seats, which is that there be no
advantage to one party or another, in order to follow that
pattern that has taken us through the Civil War, free States,
slave States, a pattern that has always been here.
Chairman Davis and I have spent four hard years to, in
fact, achieve absolute and total parity. We were informed
yesterday for the first time that there may be an amendment
that would take the basis for that bipartisanship away, it is
one of the bases, but it was an important basis, by taking away
the at-large seat. We, of course, have thoroughly vetted that.
My question goes to your role as Governor. You have
testified, without any prompting from us, we got this testimony
just yesterday, where you testified that you understood that
the seat would be on an at-large basis until 2012 and that you
considered it--and here I am going to quote you, Governor--"a
significant benefit, because redistricting, which is always a
difficult, time-consuming and politically costly process, would
be especially undesirable at this point in time, less than 4
years before the next decennial census.''
Could I ask you to tell us something about the
redistricting process in Utah? If you could take us through
what it would take. Understand, for the benefit of my
colleagues on the panel, you go back after these 4 years to
four seats, if you got the fourth seat.
Governor?
Governor Huntsman. Thank you very much for the question.
And I appreciate your earlier comments about this being
truly a bipartisan undertaking. And I thought Representative
Conyers described it quite well during his remarks, in terms of
the construct of the room in which we find ourselves today and
the many people who are interested in seeing this happen, both
for the District and for the State of Utah.
As I mentioned in my testimony, the at-large status is
something that would be my preference, but I must tell you that
I am the chief executive of a State that is growing very, very
quickly and experiencing enormous change. So, therefore, I am
here to argue that which is in the best interest of the people
of Utah, and that is getting an extra seat for people today who
are underrepresented in this body.
Ms. Norton. Just to intervene for a second. Neither Utah
nor the District would get a seat if we do not have a
bipartisan----
Governor Huntsman. That is correct. Thank you for that, and
I am glad that we are having this conversation, because we
remind each other of that which one might forget.
Just to get to your specific question, we have maps that
are left over from the last decennial census of 2000, done, I
think, 2001. I believe that there is one that even reflects a
fourth district.
And I think it would be important to look at that option,
if, in fact, the requirement for getting a fourth district was
that we had a district in place sooner rather than later,
instead of waiting until 2010 for the decennial numbers and
then 2012 for the election.
Ms. Norton. And then redistricting would occur or not
occur?
Governor Huntsman. The redistricting might occur. And I am
here not to speak for my legislature, but rather those things
that I think are in the best interest of our State--that is,
getting a fourth district and moving quickly and fairly and
objectively toward the creation of a fourth seat, even if we
had to do it soon. And that would be convening a commission on
redistricting, like the one that met in 2001, to, once again,
create a new district.
So one of two things: We could look at the old district
that was created in 2001 for the fourth seat that never
occurred. Or we could fairly rapidly convene another meeting of
this commission in short order and, based upon the principles
of fairness and objectivity, create a new fourth district.
That would be my hope. Again, I can't speak for the
legislature, but I can give you my word that that is what I
would hope for.
Ms. Norton. When that fourth district was created, was it
as it is in many States, agreement by Democrats and Republicans
for the way in which the districts were allocated? Did the
Democrats, in other words, support----
Mr. Chabot. The time has expired, but the Governor can
answer briefly the question.
Governor Huntsman. It was a group made up of the
legislature, representing the distribution politically of the
Members.
Ms. Norton. Did it have bipartisan support?
Governor Huntsman. It was a bipartisan group that created
the district.
Ms. Norton. Was there a vote on it?
Governor Huntsman. I believe that with the legislature
being involved, that there was a vote, although I wasn't there
at the time, so I can't speak definitively to that point.
Mr. Chabot. The time has expired.
The gentleman from Michigan, the Ranking Member, Mr.
Conyers, is recognized.
Mr. Conyers. Thank you, Mr. Chairman.
Witnesses, I have never been so eager to come to a hearing
and so disappointed to hear what at least half of you had to
say about the subject matter. This has not been a good
afternoon for me.
Let me just ask Mr. Fortier. Am I correct that you have no
objection to an at-large seat? You have no constitutional
objection?
Mr. Fortier. No, I have no constitutional objection. The
Congress would mandate that all States have at-large seats, as
they now mandate that they have single-Member districts and
they can make exceptions to that. So it would also be a
relatively temporary matter, so no objection.
Mr. Conyers. Well, I feel just a little bit better, turning
the dial.
But, Mr. Charnes, what do you make of this afternoon? How
do you make people like me, who walked in here in a totally
positive mood, begin to say, ``Wait a minute, what is going on
here?"
Now, we know that there will be constitutional objections.
We know that there will be lawsuits. We know all that. But how
can we get this thing back on track and let's start moving down
the road?
Mr. Charnes. Well, I think that these are difficult
constitutional questions, but the courts--in some areas of the
structural Constitution, the Supreme Court is very formalistic.
In other areas, the Court has approached things more flexibly.
And I think with respect to interpretation of the word
``state'' in various parts of the Constitution, as is laid out
in my written testimony, the courts have been much more
flexible. So I think that I am comfortable that there is a very
good chance, and I think it is likely that the courts would
uphold the treatment of the District as a district for the
purposes of representation in the House of Representatives.
And as you say, there is likely to be litigation, but there
is litigation about a lot of things the Congress does. And that
is sort of taking that in stride as part of the business of
Congress. I don't see any undue risk here that should give the
Subcommittee pause in moving forward.
Mr. Conyers. Well, I don't think so either, but that is my
complaint. I mean, for goodness' sakes, I guess we could have
another hearing and pull together another set of witnesses.
We have all practiced law or been lawyers or assumed to be
constitutional experts. We have got to solve a historical, two-
century problem. And the Governor comes out here all the way,
and we are sitting around saying, ``I am sorry, guys, I know
you want to do the right thing, but it is just insuperable, it
can't be done. It won't work.''
Well, look, I am the most senior Member on this Committee,
and I can tell you that we can find ways. That is our job, to
find ways to make it work. That is what we are here for.
And those of the people to whom I have to affix my
attention at this moment in time, because I don't want this
hearing to go down as one that they started off, everybody
agreed what ought to happen, and then they realized that this
can't happen, ``There is no way, Congressman. We love your
intentions. We know your heart is in the right place, but.''
Well, I am one Member that cannot accept that. And I guess I am
going to have to go back to my deep list of constitutional
expertise and find ways to overcome it.
Do you have any way of making me feel better, Governor,
since you have come the furthest?
Governor Huntsman. I will be very short and to the point,
Representative Conyers, because there is a plane waiting. I
want it to be understood that this Governor is leaving this
hearing room with a desire for real flexibility in terms of how
we proceed as a State, so that the District is successful.
We have all heard the arguments why the District should be
successful--I think most in this room agree--and so that Utah
is successful, as well. I don't want it thought that we are
going to be obstructionists. We are going to work with you and
remain flexible in the days to come, so that we can get this
done.
And if it is any consolation, I just came in late last
night, and I sense a real can-do attitude on the part of people
who are in this room and beyond, along with the bipartisan
group that has been put together in this Committee. And for me,
Representative Conyers, that would give me a great sense of
hope.
Mr. Chabot. The gentleman's time has expired.
Mr. Conyers. That is wonderful. And I am so glad that you
were able to join the panel today, and we will be looking
forward to continuing working with you.
Mr. Chabot. Thank you. The gentleman's time has expired.
The Chair would note that we are going to go into a second
round, but we will--if Members would like to talk for longer in
the first, we can do that. But I want to accommodate the
sponsor of the bill, Mr. Davis, so he has a chance to ask some
questions.
So I am going to recognize myself, and I am yielding my 5
minutes.
Mr. Davis. Thank you.
Governor, let me just ask you this question. As you know,
our bill reported out an at-large. We think this works very
well. That is the preferred mode.
If somehow redistricting were put back in the lap of Utah,
are you telling me that you would work to make sure that
incumbent Members were involved and there would be no effort to
gerrymander anyone's partisan advantage?
Governor Huntsman. Fair and objective, that would be our
approach.
Mr. Davis. And you would work with the delegation, as
well----
Governor Huntsman. Yes, sir.
Mr. Davis. --to make sure they were included in those
discussions?
I think that is important, should this go a direction that
we don't want it to go, and I just wanted to get that on the
record. Thank you.
Let me ask if anyone up here can give me an example where a
Federal court has limited the authority of Congress under the
District Clause.
Mr. Turley. Well, not in the sense of striking down the
law, but starting in 1805, with Hepburn, the court made clear
where the Congress could not go, and the Congress did not go
there. The court made clear in 1805 that this was created to be
a non-State entity. And the court has repeatedly referred to
the non-voting status of the District. So Congress hasn't
really pushed that envelope in the past.
Mr. Davis. But there is no specific incident where Congress
has acceded that and where the court has struck it down?
Mr. Turley. Not until now, no.
Mr. Charnes. But, in fact, I think there are examples where
Congress has regulated, for example, in the Commerce Clause.
The Commerce Clause gives Congress authority to regulate
commerce among the several States. And Congress has exercised
that authority with respect to commerce across the district
lines, and the court has upheld that.
So I think there is authority to the contrary, as well.
Mr. Davis. And there is a State Clause in the Constitution,
right? So that is why they are interpreting constitutional
terms.
Mr. Turley. That is right.
Mr. Davis. Let me ask you. Everyone here believes the city
should get a vote in Congress, is that fair to say? We are just
disagreeing as to the means. Is that a fair comment?
Mr. Turley. It is for me.
Mr. Davis. I would just note that all four witnesses
indicated in the affirmative.
And let me ask, one of the difficulties of retrocession--
because we looked at this, it is an easy solution, but you are
still stuck, as Chairman Chabot pointed out, with three
electoral votes for whatever is left, whether it is the page
dormitory, whether it is the White House, and it would take a
constitutional amendment to change that.
There is no other way around that, is there?
Mr. Turley. I actually, in my testimony, deal with that and
suggest that, indeed, there are.
There is no question it would create another anomaly, but
in my view, if you are not willing to repeal the amendment,
then you can constructively repeal it.
For example, under the proposal I suggested of creating
that very small District of Columbia, just the seat of
Government, the only residents it would contain would be the
White House, which could be dealt with legislatively.
But the amendment refers to Congress saying how the
electoral votes will be established. And so Congress can simply
not do that. It can go dormant, and I think that is achievable.
There are other dormant aspects.
Mr. Davis. But a lot of court cases have talked about
ability of homeless people to move in and be registered and
everything else. So it does open a can of worms.
Mr. Turley. Well, actually, Congress can establish that
there will be no residents, and, in fact, there cannot be. If
you look at my proposal, it would just be actual Federal
buildings. Homeless people cannot live in Federal buildings. It
is already Federal jurisdictional land. So I think that you
actually could force it into a dormancy even without a repeal.
Mr. Fortier. One could also simply not have a seat of
Government. As much as there were original reasons for it, the
retrocession could go back to Maryland. There could be no seat
of Government.
The 23rd Amendment would exist, saying that the District
would get these votes, but there would be no District,
essentially. So I think that would work.
Mr. Davis. In Federalist Paper 43, James Madison
specifically states about the District, ``The state will no
doubt provide in the compact for the rights and the consent of
the citizens inhabiting the Federal district.''
So the Government would provide for the compact for the
rights and the consent of the citizens in having a Federal
district. That doesn't sound to me like Madison thought the
resident of a Federal district should have no Federal
representation.
And, in fact, when it was originally created, from 1790 to
1800, they were citizens among the several States, and they did
vote. They voted with Maryland, and they voted with Virginia.
Why wouldn't Congress have that same authority to change
it?
Mr. Turley. Actually, I believe what Madison was saying is
that when the land was ceded, there would be a negotiation with
the affected States.
In fact, Alexander Hamilton anticipated this, to put in a
provision that said that the District residents could
ultimately get a vote. But if you look at the Constitutional
Convention, the ratification convention, it is perfectly clear
in there that the understanding was they would not have a vote
once the land was formally ceded.
I think what Madison was saying is that the States
themselves could negotiate this point as part of it. But
repeatedly, as you see in my testimony, you have people that
objected strenuously to the creation of this non-State entity
without a vote in Congress.
Mr. Davis. But there was no specific understanding that
Congress couldn't revisit this later, was there?
Mr. Chabot. The gentleman's time has expired, but you can
respond to the question.
Mr. Davis. Any of you?
Mr. Turley. In terms of that they could return to it, the
answer is yes, in one sense, because there was an effort to put
the word ``permanently'' into the District Clause. That would
have essentially forced the borders to remain rigid, and that
was removed to give the Congress the ability.
But I would suggest that that gave them the ability to
relocate the Capital. That was the main concern. But it also
gave them the ability to retrocede.
Mr. Chabot. The gentleman's time has expired.
The gentleman from North Carolina, Mr. Watt, is recognized.
Mr. Watt. Thank you, Mr. Chairman.
It looks like the Governor left, and that keeps me from
being tempted to pick a fight with him. The fight was between
Utah and North Carolina about this extra seat. [Laughter.]
So I definitely wanted to go back at him about some of
those things. So it is probably a good thing.
Mr. Chabot. Would the gentleman yield for a moment?
Mr. Watt. That would be a side issue.
Yes, sir.
Mr. Chabot. Yes, we did already get their okay to give them
written questions. So you can make those questions as scathing
as you would like. [Laughter.]
Mr. Watt. Actually, I think it is an irrelevancy at this
point, if Utah was next, which we concede. We don't concede it
should have been in front of North Carolina, but we do concede
that it would have been the next in line after North Carolina,
and I believe in representation.
So it doesn't hurt my feelings for Utah to get another
Representative in Congress, just like it doesn't hurt my
feelings for the District of Columbia to get representation in
Congress, because I think that is what our democracy is about.
Now, I understand Mr. Turley is leaving soon, too, and
there are people here who--I am still studying this issue, but
there are people who have a lot more knowledge about it, so I
am going to yield.
How much time do I have?
Mr. Chabot. You have got 3 minutes and 40 seconds left.
Mr. Watt. But you all passed over me in the first round,
even though----
Mr. Chabot. Plus you get another 5 minutes.
Mr. Watt. Okay, so I will yield as much time, 6 minutes
maybe--3 minutes to the gentlelady from the District and maybe
the rest of my time to the gentlelady from Texas, who is not on
the Subcommittee.
Mr. Chabot. The gentleman yields.
Ms. Norton. Thank the gentleman for yielding.
I hope Mr. Turley won't leave before I have a question for
him, but I must ask this question first, because we learned
yesterday, indirectly, that there may be an amendment that
wipes away the at-large agreement that Republicans and
Democrats have worked to achieve and that the basis for that
amendment is that the people of Utah would have two votes.
And I would like you to comment on the notion that somehow
Utah--Utah, with an at-large Member, you get two votes and your
vote is somehow expanded rather than diminished.
Mr. Turley. I would be happy to.
Ms. Norton. I want all of you all to, but I certainly would
like you to.
Mr. Turley. The Utah portion of the bill is actually, in my
view, a closer question, a very, very difficult one. And, as
you know--you are an accomplished former academic and
constitutional expert--I think you can recognize that this is
an issue that has not gone before the Supreme Court.
In the Supreme Court language, when it comes to one person,
one vote, has always been pretty ambiguous. Now, in favor of
what you are doing, quite frankly, the Supreme Court has
accepted that there could be a 40 percent differential from a
perfect district under one person, one vote. And I think that
helps, because there is language there to say that they are not
going to require the impossible of you.
The concern I have about this, though, is that this is
something we have never seen before. This district would be
about 250 times the size of that perfect district mean, and in
terms of population it would be about 2.2 million as opposed to
about 640,000.
But the other problem is that the court has said that they
want to make sure that there is not a preferred class of
voters, and, indeed, these voters would have two
Representatives in Congress.
Then my final concern is that people in Utah could object,
because if they were to get their own district, it is very
likely that Member would be different. For example, if this
fourth district was coming out of Salt Lake City, my guess is
that they would have a different type of Member representing
different interests than an at-large seat.
And so, all those issues go into the mix, and what it
leaves me with, quite frankly, is great skepticism.
Ms. Norton. Skepticism.
Mr. Charnes, would you respond to that?
Mr. Charnes. Sure. I think there is very little precedent
on this point. The fact of the matter is the Supreme Court has
not talked about State-by-State comparisons and one person, one
vote. They have looked at districts within a State and have
struck down some districts that are malapportioned.
But here, I think there is very little precedent. As a
practical matter, there are several States that only have one
Representative, and the ratios will never work for those
States, because you can't adjust those. You can't have a
fraction of a Congressperson.
So I don't think there is a sufficient precedent for the
Subcommittee or the Congress to be terribly concerned about the
at-large seat. There is great historical precedent for at-large
seats.
The first 50 years or so after the founding, there was
almost a presumption that States would be represented with at-
large Members of the House. Of course, there is no precedent
for having a combination of the two, but as Dr. Fortier has
mentioned, this is a transitional thing that will just be
present for a few years.
It is reasonable and Congress, under the Constitution,
actually, has pretty broad authority to intervene in State
districting matters under article I, section 4.
Mr. Chabot. The gentlelady's time has expired.
The gentleman had given the rest of his time, I believe, to
Ms. Jackson Lee.
Is that correct, Mr. Watt?
Mr. Watt. Yes.
Mr. Chabot. We want to thank Professor Turley for his
tremendous testimony this afternoon.
Mr. Watt. Before the professor leaves, could I just clarify
one thing? There is nothing constitutional about single-Member
congressional districts. That is statutory, isn't that right?
Mr. Turley. The constitutional problem comes in the one
person, one vote aspect, yes.
Mr. Watt. So, theoretically, we could make a multi-Member
district statewide, two Members, for this transition period, if
this got cumbersome.
Mr. Turley. I am not too sure I would subscribe to that. I
would have to look at it.
Mr. Watt. But there is certainly nothing in the
Constitution. There is a statute that requires single-Member
districts at the congressional level. It is statutory; it is
not constitutional.
In fact, I introduced a bill several years ago to give that
discretion back to the States to terminate the statutory
provision. So if we terminated that statutory provision, you
could create a multi-Member district for Utah.
Mr. Turley. I would have to look at that, but the
gravitational pull on that question is the Equal Protection
Clause, and I am not too sure I would subscribe to it, but I
would have to look at it.
Thank you again for allowing me to appear.
Mr. Chabot. Thank you very much, Professor.
Mr. Watt. I will get to you on the next round. I think you
have probably a different opinion, maybe.
Ms. Norton. Mr. Turley, could you possibly stay for a
moment?
Mr. Turley. As long as you can order Delta not to----
Mr. Watt. We are on my second round. You all don't squander
my time now.
Mr. Turley. I am afraid I have got a flight to Utah.
Ms. Norton. Mr. Turley, I have been yielded time just for
this question, because your testimony said that Congress
understood, as a defining element of the Federal district, that
there would be no vote for the people who lived here, and you
said, in return, they somehow get to live here and they ought
to be grateful for it.
In Mr. Charnes's testimony, he seems to find a different
intent and a different power that--and, here, I am going now to
Mr. Charnes's testimony.
In effect, what you are saying is that Maryland and
Virginia, in ceding land, understood that they would, in fact--
the citizens, their citizens might lose the vote they had.
Congress, in fact, passed legislation, according to Mr.
Charnes, and then the States passed legislation guaranteeing
that those voters in Maryland and Virginia would still have the
vote.
Do you really concede that the State of Virginia and the
State of Maryland would have ceded land to the District of
Columbia if they felt their residents would, as soon as it
became the Nation's Capital, lose their voting representation
in Congress?
Mr. Turley. I do, in the sense that, if you look at my
testimony, you will see repeated statements by individuals at
that time objecting to the status. In fact, right after the
land was----
Ms. Norton. You know they didn't have to do it, that they
were not compelled to cede the land.
Mr. Turley. But right after they ceded the land, a
retrocession movement began in Virginia, and, in fact, the
issue of non-voting was the most recurrent theme there. People
were objecting that this was despotism, that this was wrong.
In fact, the debate that occurred back in the early 1800's
is the exact same debate we are having now. And I happen to
just disagree with my learned colleague, because I don't see
how you read those debates, particularly when people are trying
to suggest amendments that would allow the residents to vote
and those amendments are not being taken up.
And so this was an issue that was not just passed over. It
was debated and rejected.
But I have to beg your forgiveness. If I miss this flight,
I will turn into a pumpkin.
Mr. Watt. I am going to reclaim my time for the purpose of
allowing you to go.
Mr. Turley. Thank you very much.
Ms. Norton. Mr. Charnes, would you respond?
Mr. Watt. Wait a minute. I have got to yield to Ms. Jackson
Lee, because I am going to run out of time.
Ms. Jackson Lee. Let me go quickly, so my colleague can
continue. Thank you.
In the absence of the Governor, in the absence of Mr.
Turley, let me, frankly, be very succinct in where I am going.
I think Professor Turley was grounded on constitutional
history and premise and the original desires of the Founding
Fathers.
Mr. Chabot. The gentlelady's time has expired. I am going
to ask unanimous consent that the gentlelady be given 1 minute
to at least make a statement.
Ms. Jackson Lee. In any event, the idea is that there is a
necessity for one vote, one person. The District of Columbia
does not have that. That is a crisis, a constitutional crisis
in and of itself.
My question to you: Congress can do what it wants to do, is
that not correct? Mr. Charnes, Congress can craft this
legislation. Obviously, it may be subjected to constitutional
muster, but they can write this legislation as a compromise and
pass it, is that not correct?
Mr. Charnes. That is correct.
Ms. Jackson Lee. It would not be subject to constitutional
question in the midst of Congress's work.
And my last point is, then, my last point is, if there was
the question of where you put the District of Columbia, we
know, with no disrespect to Virginia, the referendum would not
pass for it to go to Virginia. The referendum would not pass
for it to go to Maryland. So, in essence, you box the District
of Columbia in.
There is no value to saying, ``Don't do anything,'' because
then you, again, ignore the rights of people to have one vote,
one person. Is that not fairly--I mean, I know you can't
predict political votes, but there is no value to talking about
inclusion into another State. I don't see the constitutional
vision for inclusion in other States.
There is a constitutional provision for making another
State. Is that not correct?
Mr. Chabot. The gentlelady's time has expired.
Ms. Jackson Lee. Can he just answer that?
Mr. Chabot. Yes, the witness can respond.
Mr. Charnes. Well, I think that is right. I think the point
you are getting to is you have got some alternatives that are
very speculative that present varying degrees of political
problems that suggest that they may never happen.
And there is a proposal here on the table that seems a
perfect storm, in a good sense. It has partisan balance. It
rights historical wrongs. And it would seem a shame to pass up
some benefit for residents of D.C. in order--sort of, almost
letting the perfect be the enemy of the good.
Mr. Chabot. The gentlelady's time has expired.
Ms. Jackson Lee. I am willing to take my chances. Thank
you.
Mr. Chabot. The gentleman from Arizona is recognized for 5
minutes.
Mr. Franks. Thank you, Mr. Chairman. I just had a thought.
If every voting mechanism in this country is one person, one
vote, then, of necessity, we have to abolish the U.S. Senate--
which may be a really great idea, I am not sure.
With that, I would like to yield my time to Mr. Cannon.
Mr. Cannon. I thank the gentleman from Arizona.
Mr. Charnes, in the testimony of both Mr. Turley and Mr.
Fortier, they explicitly referenced the potential problems of
giving D.C. a vote because of article I, section 2, referring
to the people of the several States.
Can you talk a little bit about the District Clause, how it
works in conjunction with this section, and why it is not in
contravention of that?
Mr. Charnes. Sure. Well, the courts have uniformly
explained that the District Clause gives Congress extraordinary
authority legislating for the District. When Congress acts
under its other authority, it is constrained by principles of
federalism.
And, likewise, when the States legislate, they are
constrained not only by federalism principles, but various
specific constitutional restrictions. The Commerce Clause I
have referred to restricts what they can do, the Equal
Protection Clause and so forth.
The Congress, when it legislates for the District,
basically has none of those constraints. And I think that it is
that power that allows the Congress to conclude or to provide
that the District of Columbia be treated as a district for
purposes of representation in the House.
If article I, section 2, clause 1 were perfectly clear, the
Framers said it explicitly, ``D.C. residents shall not have a
vote in the House, period,'' the District Clause, obviously,
could not override that.
But it doesn't say that. And, as I indicated before, the
courts have not interpreted the phrase ``states'' so
categorically to exclude Congress's authority under the
District Clause.
Mr. Cannon. I think diversity of jurisdiction is another
example of that. We deal with diversity of jurisdiction in the
District, do we not?
Mr. Charnes. That is right. There are a number of examples.
The Diversity Clause, Commerce Clause, article I, section 2,
clause 3 refers to apportionment of taxes among the States, and
the Supreme Court has said that that includes the District of
Columbia.
The sixth amendment, the right to a jury trial, refers to
the partial jury of the State and district where the defendant
lives, and the courts have said that that includes the District
of Columbia.
So there hasn't been sort of a categorical rigid
interpretation of ``state'' in various provisions of the
Constitution.
Mr. Cannon. One of the more technical questions, for either
of you, if you feel comfortable: If this legislation passes,
Utah is the State that is likely to get the new seat. If that
is certified based upon the last census, is redistricting done
based upon the last census or upon the statistical updates to
the last census or is that a choice by the State legislature?
Mr. Fortier. I believe it is done on the last census
numbers. We have the example in Texas and we also have numbers
of court-ordered mid-decade redistricting, where it relies on
the initial last census numbers.
Mr. Cannon. Let me suggest that Utah has grown very rapidly
in the last 6 years. My district has had most of that growth,
just as an aside.
And if the legislature chose to use statistical updates for
redistricting, what effect would that have, do you think?
Mr. Fortier. I mean, certainly, it would change the shapes
of the districts and change what one could do.
I guess the question is, do you rely on numbers that are
officially sanctioned by the census, which is the baseline for
what we tend to use, or do we feel comfortable with updating
lines?
I am not sure that the courts would absolutely forbid that,
but my sense is that the census numbers are the most legally
binding in that regard and you would have to----
Mr. Cannon. Clearly, as of a point in time, they represent
an enumeration. But all you have to do is drive around on new
roads, new streets, and see new houses.
Mr. Fortier. But that happens to almost--many States, as we
get closer to the end of the district, the districts are of
varying sizes. And there has to be some sort of line drawing as
to 10 years, ``Why 10 years, not 5 years?"
Mr. Cannon. I guess the real question is, if somebody sues,
how do the courts rule on that?
Mr. Fortier. I believe that they would require the use of
the old census numbers.
Mr. Cannon. Mr. Charnes, do you have a different view?
Mr. Charnes. No, I actually don't have an opinion about
that. But Congress has great authority under article I, section
4 to intervene and to direct Utah how to create an at-large
seat or how to draw the----
Mr. Cannon. So you believe the at-large seat is okay.
Mr. Charnes. Yes.
Mr. Cannon. So in the contingency that the at-large seat
does not happen--obviously, I am a supporter of the at-large
seat, but if that happens, does the State legislature have
latitude to use real numbers versus way out-of-whack numbers?
Mr. Chabot. The gentleman's time has expired, but you can
answer the question.
Mr. Charnes. That is a very good question. It is sort of a
little bit beyond my area of competence.
Mr. Cannon. I would just like to say, Mr. Chairman, that
Mr. Turley pointed out that he was going to Utah. I think this
is a coincidence. He is certainly not in the pay of the State,
as evidenced by his testimony.
Mr. Chabot. Duly noted. The gentleman's time has expired.
I would just make one point. Mr. Nadler had 5 minutes, and
we had indicated that would allow him to yield that to Ms.
Norton. So you are welcome to take that 5 minutes, if you would
like to do that.
Ms. Norton. Thank you very much, Mr. Chairman.
We have heard two extraordinary propositions here: that the
Framers intended to disenfranchise U.S. citizens, people who
created this democratic public--that was Mr. Turley's
testimony; and, secondly, that Maryland and Virginia ceded land
without getting assurances that their people would not be
permanently disenfranchised.
I think in your testimony, Mr. Charnes, you describe how
each of them passed their bills. They didn't have to cede a
thing.
Mr. Charnes. That is right.
Ms. Norton. Talk about States' rights, this is the early
Constitution, where States' rights were all--then the Congress
passed legislation recognizing the right of Maryland and
Virginia residents to vote.
My question goes to when the Congress assumed full control.
You said the United States firmly assumed full control of the
District. Congress, by omission, withdrew the grant.
There was no affirmative act of the Congress of the United
States withdrawing the vote from these citizens of Maryland and
Virginia. Did it simply lapse through inaction, not through any
affirmative action indicating the intention of the first
Congress?
Mr. Charnes. I think that is absolutely right,
Congresswoman. And I think that there was certainly debate and
proposed amendments to fix the problem, but that all happened,
I believe, after 1800.
But I think the historical evidence suggests that no one
really thought about this issue until the problem was presented
in 1800, and then there were proposals and there was debate.
And they, unfortunately, the proposed amendments, never went
anywhere.
But I think that reviewing the history suggests that no one
really recognized the problem that would be created by the
establishment of a district from land that was ceded by the
States.
Ms. Norton. It is very important, when we talk about the
intent of the Framers and the intent of the good of the first
Congress, because, to understand originalism, we look to those
Framers, those first people, who wrote the Constitution.
Another question, the-sky-is-falling notion from Mr.
Turley, that once you use the at-large, and quoting from his
testimony, ``Congress, by a future majority, could manipulate
voting in Congress and reduce representation for insular
groups.''
He suggests that once an at-large remedy is granted for 4
years, temporarily, Utah going back to four seats thereafter,
what we can expect is Congress will reduce the rights of others
not in the same position.
I wish you would respond to that.
Mr. Charnes. Sure. Well, Congress, in exercising its
authority under article I, section 4, is bound, for example, by
the Equal Protection Clause. So Congress could not pass a bill
with the intent and effect of disenfranchising racial
minorities and so forth.
And I think the slippery-slope argument is one that you
hear often, but I don't think there is any evidence here that--
there is no reason a court could not say that this transitional
effort of giving an at-large seat to Utah was reasonable under
the circumstances and commensurate with Congress's authority
under article I, when other efforts that were plainly meant at
disenfranchising people and had an adverse effect on their
voting rights would fall outside Congress's authority.
It strikes me that that is a somewhat speculative
hypothetical. It is important to legislate understanding the
slippery slope, but it is also important not to be paralyzed by
slippery slopes.
Mr. Fortier. Can I add that we have many cases of temporary
things happening in the middle of the districts, States coming
into the union, court cases where there have been temporary
solutions, as well.
The case where, early on, we had many, many multi-Member
districts, we had--I think to answer Mr. Watt's question, we
also had some mixed districts. Maryland, I think, actually had
districts for the Electoral College, where western Maryland had
a few, and it was different in the rest of the State.
So I think there is a lot of flexibility and the mid-
district question we deal with all the time because of States
having come in. And this will disappear in 4 years if that is
what comes out of it.
Ms. Norton. I would finally like to clear up the reputation
of the Framers, this notion that they intended, as the price of
living in the District of Columbia, that people would give up
their voting representation in Congress, notwithstanding the
efforts that were taken.
I would like you to discuss the quid pro quo notion,
especially in light of the concern that we all learned about of
the local jurisdiction having control over the seat of
Government.
Now, which was their concern, and was there any discussion
of any kind that what you should be glad of is somehow you are
living in the District of Columbia? Living there gives you some
power that others have through congressional representation,
and that is the price you are going to pay?
Mr. Chabot. The gentlelady's time has expired, but the
witness or witnesses are free to answer the question.
Mr. Charnes. I am not aware of any discussion along those
lines, quid pro quo, and, therefore, the people who lived in
the District should be glad to give up their voting rights in
order for the privilege of living in the District.
In fact, it has been alluded to, it was Madison that
expressly said that Maryland and Virginia, the ceding States,
would protect their own residents that they were losing
through--before ceding the land, would ensure that their
residents were taken care of.
Of course, that apparently didn't happen, but I don't think
there is any evidence before the cessions that there was sort
of a quid pro quo along the lines you are talking about.
Mr. Chabot. Mr. Fortier, anything?
All time has expired. I want to thank the panel here, both
those present and those that had to leave to catch flights, for
their testimony this afternoon.
I want to thank all the panel members who attended here
this afternoon, both those on the Committee and those not. All
the folks in the audience who came who have a particular
interest in this issue.
It is a very important issue. This is part of the process
going through, and it is impossible to say at this point in
time whether this change will occur or not. We will, obviously,
confer with our colleagues about this.
The record here is open and available to all Members of
Congress, both on this Committee and those not on the
Committee. And so, this is an important part of the process in
deciding whether this change will be made ultimately or not.
So I want to thank all for attending.
If there is no further business to come before the
Committee, we are adjourned. Thank you.
[Whereupon, at 4:40 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
The Honorable Steve Chabot, a Representative in Congress from the State
of Ohio, and Chairman, Subcommittee on the Constitution
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Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas
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Letter from Greg J. Curtis, Speaker of the House, and Josh L.
Valentine, President of the Senate, Utah Legislature, to Chairman F.
James Sensenbrenner, Jr. in support of H.R. 5388, September 13, 2006
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Testimony of Anthony A. Williams, Mayor, District of Columbia
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Statement of the District of Columbia Affairs Section of the District
of Columbia Bar
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Statement of Charles Orndorff, the Conservative Caucus, Inc.
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Statement of the American Bar Association
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Letter from Lawrence H. Mirel, Wiley Rein and Fielding LLP, to Chairman
Chabot and Ranking Member Nadler, September 20, 2006
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Statement of Lawrence H. Mirel, Wiley Rein and Fielding LLP
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Testimony of the DC Statehood Green Party
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Latham and Watkins LLP, ``Supplemental Analysis Regarding Possible D.C.
Voting Legislation by Representative Thomas M. Davis, III (R-VA),''
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Latham and Watkins LLP, ``Analysis Regarding Possible D.C. Voting
Legislation by Representative Thomas M. Davis, III (R-VA),''
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Memorandum from Congressional Research Service, ``Constitutionality of
Congress Creating an At-Large Seat for a Member of Congress''
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Letter in support of H.R. 5388 from Robert C. Keithan, Director,
Unitarian Universalist Association of Congregations, to Representative
Tom Davis, May 18, 2006
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Letter in support of H.R. 5388 from Kay J. Maxwell, President, League
of Women Voters, to Members of the House Judiciary Committee, May 31,
2006
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Letter in support of H.R. 5388 from Marc H. Morial, President and CEO,
National Urban League, June 12, 2006
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Letter in support of H.R. 5388 from Robert D. Evans, Director, American
Bar Association, to Chairman F. James Sensenbrenner, Jr., June 16, 2006
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Letter in support of H.R. 5388 from Dr. Clark Lobenstein, Executive
Director, the InterFaith Conference of Metropolitan Washington, to
Chairman F. James Sensenbrenner, Jr., June 21, 2006
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Letter in support of H.R. 5388 from Joslyn N. Williams, President,
Metropolitan Washington Council, AFL-CIO, June 27, 2006
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Letter in support of H.R. 5388 from Melvin S. Lipman, President,
American Humanist Association, July 14, 2006
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Letter regarding H.R. 5388 from Ronald Jackson, Executive Director of
D.C. Catholic Conference, and Michael Scott, Coordinator of D.C.
Legislative Network, the Archdiocese of Washington, July 20, 2006
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Letter in support if H.R. 5388 from Patricia M. Wald to Chairman F.
James Sensenbrenner, Jr., July 25. 2006
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``Jewish Organizations Support H.R. 5388,'' Letter in Support of H.R.
5388, July 25, 2006
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Letter in support of H.R. 5388 from the Leadership Conference of Civil
Rights, September 13, 2006
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Memo in support of H.R. 5388 from the Leadership Conference on Civil
Rights
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Letter in support of H.R. 5388 from Ralph G. Neas, President, and Tanya
Clay House, Director of Public Policy, People for the American Way,
September 13, 2006
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``Reform Jewish Leader Urges Committee to Support Congressional
Representation for Washington, D.C. Residents
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Letter in support of H.R. 5388 from Rabbi David Saperstein, Director
and Counsel, Religious Action Center of Reform Judaism, September 13,
2006
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Letter in support of H.R. 5388 from Hilary O. Shelton, Director,
National Association for the Advancement of Colored People (NAACP) to
Members of the House Commitee on the Judiciary, September 13, 2006
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``Interfaith Coalition Supports H.R. 5388,'' Letter in support of H.R.
5388 from a broad coalition of religious organizations, September 13,
2006
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Letter in support of H.R. 5388 from Richard T. Foltin, Legislative
Director and Counsel, and David Berstein, Executive Director of the
Washington Chapter, The American Jewish Committee, September 14, 2006
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Letter in support of H.R. 5388 from Chellie Pingree, President and CEO,
Common Cause, September 20, 2006
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``Support Democracy in Our Nation's Capital,'' The Coalition to Stop
Gun Violence
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