United States Supreme Court Affirms Denial of Voting Rights For D.C.

  

Category:  Op/Ed

Via:  vic-eldred  •  3 weeks ago  •  25 comments

By:   JONATHAN TURLEY

United States Supreme Court Affirms Denial of Voting Rights For D.C.
Yet, the Post repeatedly spins the decision as “only affirm[ing] the finding, by a three-judge panel made up of federal judges in D.C., that Congress is not constitutionally required” to give D.C. residents a vote. Again, the lower court went well beyond just saying the Congress was not required to give a vote. It repeatedly stressed that it cannot do so even if it wanted to because the Constitution limits votes to “the people of the several states.”

S E E D E D   C O N T E N T



The United States Supreme Court affirmed  the decision of the United States Court of Appeals for the District of Columbia  (and the later  denial of a motion for consideration ) in rejecting the much touted lawsuit to give residents a vote in Congress. Some of us have repeatedly said that the lawsuit would not succeed despite  various law professors filing a brief  supporting the underlying claims. What is most striking however is the coverage in the Washington Post, which reported on the summary affirmance but only quoted supporters for the challenge, including a strikingly misleading take on the lower court ruling upheld by the Supreme Court.

I have written about D.C. statehood and other voting proposals for decades and, as noted in  a recent column , I believe that the best interests of both the country and the district residents is found in retrocession,  not statehood .

As I stated when it was filed, this lawsuit has the same flaws as the argument used previously in Congress to  secure a house vote for the district . It is at odds with the language and history of the Constitution. The D.C. Circuit wrote a detailed decision taking apart the constitutional claims and rejecting the challenge “because Congress’s District Clause power does not include the power to contravene the Constitution’s express provisions, and because the Constitution by its terms limits House representation to ‘the people of the several States.'”

There has long been a problem with the one-sided coverage of these challenges and past unconstitutional proposals in Congress. Stories often present a distorted account of the constitutional debate in echoing the views of those advocating for judicial or legislative intervention to give D.C. residents a vote in Congress without statehood.

The  Washington Post article  down plays the significance of this loss while repeatedly insisting that it does little to undermine further efforts at legislative interventions. It quotes advocates for the rejected challenge and then adds this observation:


“The ruling has little bearing on the ongoing fight for D.C. statehood, however, and does not preclude Congress from passing a law that would grant the District a vote in the national legislature.”

Obviously, this decision would not impact D.C. statehood. It had nothing to do with statehood. However, the statement that it “does not preclude Congress from passing a law that would grant the District a vote in the national legislature” ignores the strong language against any legislative measure other than statehood.

Yet, the Post repeatedly spins the decision as “only affirm[ing] the finding, by a three-judge panel made up of federal judges in D.C., that Congress is not constitutionally required” to give D.C. residents a vote. Again, the lower court went well beyond just saying the Congress was not  required  to give a vote. It repeatedly stressed that it cannot do so even if it wanted to because the Constitution limits votes to “the people of the several states.”

The Post then made the same misleading point by adding this statement from Walter Smith, executive director of the D.C. Appleseed Center for Law and Justice:


“Smith was heartened, however, that the ruling the Supreme Court affirmed mentioned that Congress could legally grant voting rights to D.C., even though it is not constitutionally required to.”

However, again, the Court makes repeated reference to the bar on non-state residents in voting. It merely states the obvious that Congress can grant statehood:


“The point we underscore is that the constitution of Congress was the considered result of extensive debate, and in the absence of any evidence that the Framers intended something other than what they wrote, it is not the place of either Congress (acting via the District Clause) or this Court to revise the results of the compromise that was so central to the formation of the country as it is.”

The opinion is a scathing review of any arguments other than statehood for voting rights in Congress.

It is also worth noting that the actual opinion affirmed by the Supreme Court was the denial of the motion for reconsideration, which was an even more blistering rejection: “The Motion is not a picture of clarity, such that we are not entirely certain under what theory Plaintiffs are proceeding. … Returning now to the trailhead, we need only take a few steps along the second path before concluding that this way, too, is a dead end.”

In rejecting a new statutory argument, the Court again reaffirmed the fundamental rejection of this claim: “It was that premise – that residents of the District  qua  residents of the District are not among “the people of the several States” – that informed our conclusion that Plaintiffs’ equal-protection law claim was pretermitted by the Constitution’s own dictates.”

None of that was even intimated, let alone recognized, in the Post coverage. As with past coverage, the suggestion was that this was not a major loss and there are still grounds for legislatively securing a vote.

There is of course another option that is legislative: retrocession.  I  testified  five times in the House and the Senate on this issue in Congress, particularly on the effort to simply give the District a vote in the House of Representatives.  I encouraged the Congress to avoid such flagrantly unconstitutional measures of a vote as a non-state entity and instead focus on a vote of statehood or retrocession.  I proposed a “modified retrocession plan”, which was also discussed in an academic work. See, Jonathan Turley,  Too Clever By Half: The Partial Representation of the District of Columbia in the House of Representatives 76 George Washington University Law Review 305 -374 (2008).  Under my proposal, the mall and core federal buildings would remain the District of Columbia (as is the case in this legislation) but the remainder of the District would retrocede back to Maryland (as did the other half of the original District to Virginia). In this way, residents would receive full representation while receiving the benefits of various Maryland educational and other opportunities.  I argued that such retrocession offered the fastest course for not just full representation but improved social and educational programs for the district residents.  I laid out a phased retrocession plan that began with immediate and full representation.  This could be done by congressional vote.

Absent retrocession, there remains only statehood. Again, that constitutional option has never been in doubt and never debated.

Notably, this is simply a failure to report the actual tenor and holding of the lower court decision that was summarily upheld by the Supreme Court.  It is a recurring problem. One such example is the  misrepresentation of an emoluments ruling by the Post’s Jennifer Rubin , which still has yet to be corrected.

Court reporting today is increasingly marked by one-sided accounts that ignore countervailing views or even judicial holdings. That only tends to fuel the anger of readers who were never fully informed of contested claims or the weight of opposing precedent. They then assume that it must be raw ideology or the bias of the courts when these claims fail.


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Jonathan Turley


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Vic Eldred
Professor Principal
1  seeder  Vic Eldred    3 weeks ago

"What is most striking is the coverage in the Washington Post, which reported on the summary affirmance but only quoted supporters for the challenge, including a strikingly misleading take on the lower court ruling upheld by the Supreme Court."

Well professor, it is after all an activist partisan newspaper.

What did you expect?

 
 
 
XXJefferson51
Senior Guide
2  XXJefferson51    3 weeks ago

The Supreme Court could only do what it did per the constitution.  

 
 
 
SteevieGee
Senior Silent
3  SteevieGee    3 weeks ago

So...  What's wrong with DC residents having representation and a vote?  Don't they  pay taxes?

 
 
 
Vic Eldred
Professor Principal
3.1  seeder  Vic Eldred  replied to  SteevieGee @3    3 weeks ago

What's wrong with following the Constitution?

 
 
 
Greg Jones
PhD Expert
3.2  Greg Jones  replied to  SteevieGee @3    3 weeks ago

It's illegal.

 
 
 
SteevieGee
Senior Silent
3.2.1  SteevieGee  replied to  Greg Jones @3.2    3 weeks ago

It's tyranny.  It's taxation without representation.  This is why the Constitution is amendable.  A state of DC would not be the smallest state.

 
 
 
Vic Eldred
Professor Principal
3.2.2  seeder  Vic Eldred  replied to  SteevieGee @3.2.1    3 weeks ago
This is why the Constitution is amendable.

Then amend it!

 
 
 
XXJefferson51
Senior Guide
3.2.3  XXJefferson51  replied to  Vic Eldred @3.2.2    3 weeks ago

Or give most of it except the mall, monuments and the major federal government buildings back to Maryland like the other half was returned to Virginia.  Give Md. a new seat in reappointment for the extra population.  That is legal under the constitution. 

 
 
 
Mark in Wyoming
Professor Silent
3.2.4  Mark in Wyoming   replied to  XXJefferson51 @3.2.3    3 weeks ago

they would not even have to be given another seat in the house , just redraw district lines within the state to include the new area .

same could be said if the city state thing comes around , the representation that NYC has is apportioned to NY state , not the city , any seats there , belong to the state of Ny , Ny state can keep those seats or lose 1 , and the now city state , would have the constitutionally mandated 1 seat at large to cover their now new state which is the minimum any state can have .

So what good is gaining 2 senators if they lose 3 seats in th house ?

things that come back to bite one .

 and before anyone says anything , those house seats belong to the state of Ny and its legislature  not the city, and remain so until the next census, the city is just in the current states district drawing boundries  .

 
 
 
charger 383
Professor Quiet
3.2.5  charger 383  replied to  XXJefferson51 @3.2.3    3 weeks ago

that is what should be done

 
 
 
Ronin2
Masters Quiet
3.3  Ronin2  replied to  SteevieGee @3    3 weeks ago

The land they live on can be given back to Maryland, and they can then vote as Maryland citizens. DC doesn't need to be any bigger than the House, Senate, WH, and major historic monuments.

Virginia was given back their land in 1847. No reason that Maryland can't have theirs back. 

Democrats only want DC declared a state so they can get two more sure blue Senators and extra members of the House. 

The founding fathers had a very good reason for not wanting Washington DC as a state. Seems Democrats need to relearn that.

But the lack of statehood for the capital is enshrined in the Constitution. Article 1, Section 8, Clause 17 of the document reads, “The Congress shall have 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.”

James Madison outlined the reasoning behind this provision in Federalist 43, calling the arrangement an “indispensable necessity.” He wrote, “The indispensable necessity of complete authority at the seat of government, carries its own evidence with it… Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy.”

In other words, the founders worried that if the capital were to be a state, the members of the government would be unduly beholden to it. Madison envisioned that voting members of a D.C. state would be able to ‘insult’ or ‘interrupt’ the proceedings of government to get their way, simply by virtue of physical proximity to the halls of power.

When the capital was officially moved to D.C., residents lost voting representation in Congress and the Electoral College, as well as a say in Constitutional Amendments and the right to home rule. Members of the district won a victory in 1961 with the passage of the 23rd amendment to the Constitution, which granted them votes in the electoral college.

To this day, D.C. does not have voting representation in Congress, and the federal government maintains jurisdiction over the city. For proponents of D.C. statehood like Mayor Muriel Bowser, there is still a long way to go.

 
 
 
Vic Eldred
Professor Principal
3.3.1  seeder  Vic Eldred  replied to  Ronin2 @3.3    3 weeks ago
The land they live on can be given back to Maryland, and they can then vote as Maryland citizens. DC doesn't need to be any bigger than the House, Senate, WH, and major historic monuments.

I like that idea!

 
 
 
Paula Bartholomew
Professor Guide
3.3.2  Paula Bartholomew  replied to  Vic Eldred @3.3.1    3 weeks ago

I can't believe that I actually agree.  Outstanding idea.

 
 
 
Vic Eldred
Professor Principal
3.3.3  seeder  Vic Eldred  replied to  Paula Bartholomew @3.3.2    3 weeks ago

Yup, at least Maryland can get that much bluer, right?

 
 
 
SteevieGee
Senior Silent
3.3.4  SteevieGee  replied to  Ronin2 @3.3    3 weeks ago

I'm more in favor of full statehood.  One congressman, two senators.  Consider it reparations for trampling their voting rights all these years.

 
 
 
Paula Bartholomew
Professor Guide
3.3.5  Paula Bartholomew  replied to  Vic Eldred @3.3.3    3 weeks ago

It is not about blue or red.  It is about the right to vote.

 
 
 
Paula Bartholomew
Professor Guide
3.3.6  Paula Bartholomew  replied to  Vic Eldred @3.3.3    3 weeks ago

I will add this.  Dude..back the fuck off.  Ronin and I never agree, but I give him credit where credit is due.  Don't shit on in [Deleted]

 
 
 
Texan1211
Professor Principal
3.3.7  Texan1211  replied to  SteevieGee @3.3.4    3 weeks ago
Consider it reparations for trampling their voting rights all these years.

Please list these voting rights you mention, and where are they in the Constitution?

 
 
 
dennis smith
Masters Silent
3.3.8  dennis smith  replied to  SteevieGee @3.3.4    3 weeks ago

If DC becomes a state, those who choose to live there can vote. That is not hard to understand  

 
 
 
Mark in Wyoming
Professor Silent
4  Mark in Wyoming     3 weeks ago

Im thinking the actual point is , they do not want to go down the road of creating city-states thus opening the door for other cities of high population doing the same . though it would be harder in the case of a city like NYC or San Fran to do so because constitutionally they would need the home states agreement and permission to do so .

 
 
 
SteevieGee
Senior Silent
4.1  SteevieGee  replied to  Mark in Wyoming @4    3 weeks ago

Says the guy from a state with 100,000 fewer people than DC.  Wyoming should be consolidated with Idaho.  You could call it Idahoming.

 
 
 
Mark in Wyoming
Professor Silent
4.1.1  Mark in Wyoming   replied to  SteevieGee @4.1    2 weeks ago

jrSmiley_91_smiley_image.gifjrSmiley_86_smiley_image.gif

 
 
 
Buzz of the Orient
Professor Principal
5  Buzz of the Orient    3 weeks ago

Living in a country where any voting at all is limited to a few municipal positions, and to those who make up the government itself, I must say that I look with some amusement at a nation that champions the vote as an almighty right yet disallows a goodly number of its resident citizens to vote, and at states that are criticized by many for passing legislation supressing the vote.  

 
 
 
squiggy
Freshman Quiet
6  squiggy    3 weeks ago

“…yet disallows a goodly number of its resident citizens to vote…”

You talking about China?

 
 
 
Buzz of the Orient
Professor Principal
6.1  Buzz of the Orient  replied to  squiggy @6    3 weeks ago

If you're looking for an answer, try reading my comment a second time and maybe it will become clear to you. 

 
 
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