David Butler is a husband, father, grandfather, business executive, entrepreneur, and political animal. His current entrepreneurial effort can be found at www.yourtrueview.com.
How is it that 700,000 citizens of the United States are explicitly prevented from voting in Congressional elections? And what should be done about it?
In recent news, the residents of Washington, D.C., through their municipal government representatives, sought to make significant changes to their criminal code. Congress is poised to reject the new law on the basis that it will worsen public safety in the nation’s capital. President Biden has indicated that he will not veto that rejection. Among the controversial provisions are the elimination of the death penalty, and the elimination of mandatory minimum sentences for all crimes except first-degree murder. Supporters claim it is a necessary revision to century-old laws. The D.C. Council overrode Mayor Muriel Bowser’s veto of the law.
But this essay is not about the pros and cons of this local law itself but the underlying question of how residents of the United States are represented in Congress. Those who do not approve of Congress rejecting this law will claim Congress should not have the legal power to do so. They will also remind us that D.C. residents are not represented in Congress and call for D.C. statehood. Of course, statehood is overwhelmingly approved by Democrats and overwhelmingly rejected by Republicans. Just another issue on which we beat each other up rather than finding common ground.
My premise is that the residents of D.C. do indeed deserve representation in Congress, and there should be a bipartisan solution that both parties would support.
First some background. The District of Columbia was established as the location of the national capital under Article 1, Section 8, Clause 17 of the Constitution, which granted Congress 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.” Which is to say, Congressional authority over the District is not something they arbitrarily assumed. Changing this arrangement to give D.C. more complete (and permanent) control over their destiny, whether it be local legislation such as the proposed crime bill, or status as a State, would likely require an amendment to the Constitution. True, Congress could essentially delegate such local authority, but could then later rescind that delegation as well. And while admitting new states is Constitutionally a role of Congress, the special status of the capital would suggest an Amendment as the best and correct path to statehood.
The underlying purpose of creating this federal enclave was to ensure that the nation’s capital was neither dependent on nor subject to any state. In 1783, the Continental Congress was meeting in Philadelphia at Independence Hall (then the capital under the Articles of Confederation). A large group of Revolutionary War soldiers congregated in Philadelphia, blocked the doors to the building, and aggressively demanded payment for their wartime service. Now known as The Pennsylvania Mutiny of 1783, the Congress requested assistance from the Pennsylvania state government. Founding Father John Dickinson, then the head of Pennsylvania’s government, refused to provide state militia troops to protect Congress, causing them to leave Philadelphia for Trenton, New Jersey. Four years later this event was top of mind for the delegates to the Constitutional Convention, ironically held in Philadelphia, when the Constitution was being written. The end result is the so-called “Enclave Clause” described above.
The state of Maryland authorized the ceding of land for the District in 1788 followed by Virginia in 1789. The initial legislation to develop the capital focused on the Maryland side of the Potomac River. The federal capital was moved to the District in 1800 and Congressional action in 1801 formalized the boundaries of the capital, implemented federal control, and effectively disenfranchised its residents from voting for local government, for any state offices in Maryland or Virginia, for any House of Representative or Senate candidates, or in any presidential election. In more recent times, steps have been taken to give residents more representation. In 1961, the Twenty-third Amendment to the Constitution gave D.C. residents participation in presidential elections equivalent to the smallest state, with three electoral college votes. Since 1971, the District has had a non-voting member of the House of Representatives. In 1973, the District of Columbia Home Rule Act delegated much of the local governing power to a directly elected city council and mayor while retaining what amounts to veto power over their actions. Yet true federal representation remains out of reach. District residents do not have representation in the Senate and their representative in the House is more symbolic with no right to vote on final legislation.
So, what can be done to address this disenfranchisement? On the left, the preferred solution is statehood for Washington D.C. But on the right, politicians fear a permanent advantage for their opponents with two new Senate seats and an additional voting member of the House, granted to a small group of voters that are overwhelmingly aligned with the Democratic Party. Because the District has always had a significant black population since its creation, the issue of racism always percolates in these considerations. Yet ratification of the Twenty-third Amendment shows that the nation as a whole believes the residents of D.C. deserve representation.
I work from the premise that the District’s current home rule provisions are adequate for their local needs. Some may not appreciate that Congress can rescind their local legislation, but this aligns with the original intent to ensure the capital is not subject to or dependent on other government entities. This power has rarely been exercised by Congress since 1973 and amounts to a limit on local authority that is similar to cities and counties being subject to state constitutions and laws.
The issue at hand is that D.C. residents have no representation in the House of Representatives and Senate. To correct this suppression, my proposal is that the residents of D.C. should be counted as residents of the original state that ceded the land for the District. Shortly after the ceding of land from Maryland and Virginia was consummated, residents on the Virginia side of the Potamic began to petition for the return of land to Virginia’s jurisdiction. A significant reason for this had to do with Alexandria being a significant center of the slave trade and their concern that slavery would be outlawed in the District. In 1846, the land was retroceded back to Virginia. As a result, all the land currently comprising D.C. was originally part of Maryland.
And so, I recommend that legislation be passed allowing the citizens residing in D.C. to vote in elections for the Maryland Senate. I also recommend that the number of voting members of the House of Representatives be increased by one, and that the D.C. members have full voting rights. This member should be part of the Maryland delegation where such issues matter but the seat itself should be dedicated to the District and not subject to any apportionment and gerrymandering exercise by the Maryland state legislature.
It would be interesting to see how the two parties react to this proposal. Providing a mechanism for District residents to vote in federal elections should not be controversial. Democrats should support it despite not getting the political advantage D.C. statehood would provide. Republicans should be happy to put the issue to rest without significant disadvantage. They should both agree that allowing all citizens to vote is the right thing to do.
Should this mechanism be implemented, one remaining issue would be D.C.’s participation in presidential elections. Consistency would suggest that the Twenty-third Amendment be repealed and that D.C. resident votes in presidential elections be incorporated into Maryland’s allocation of electoral college votes. This would be a more complicated effort and an even bigger can of political worms.
The bottom line is the federal government suppresses the vote of 700,000 citizens. Congress should get out of their political trenches and solve this unequal and unfair treatment.