The turning point, however, came when the nonvoting Delegate, Eleanor Holmes Norton came around and supported Davis’s bill.

Interestingly, the bill has the strong support of the DC Republican Party and its chair, Bob Kabel. But almost all Republicans voted against it when the Senate cloture vote came up last year.

Orrin Hatch is still supporting it, so it should get through the Senate this year.

A few observations:

First, Viet Dinh is not on the list, although the Washington Post reported the other day that he would testified. Hmmm.

Second, Jason Chaffetz, freshman of Utah, has stated that he opposes the bill on constitutional grounds even though it would give UT an extra representative.

Third, the Justice Department is not on the list. The Bush Justice Department opposed the bill on constitutional grounds. The Obama Justice Department does not have an AG yet, so is unlikely to have an opinion.

Hearing Information

Hearing on: H.R. 157, the “District of Columbia House Voting Rights Act of 2009″
Tuesday 01/27/2009 – 10:00 A.M.
2141 Rayburn House Office Building
Full Committee

Witness List

Panel I

Hon. Steny Hoyer
Majority Leader
U.S. House of Representatives
5th District, MD

Hon. Jason Chaffetz
U.S. House of Representatives
3rd District, UT

Hon. Louie Gohmert
U.S. House of Representatives
1st District, TX

Hon. Tom Davis
U.S. House of Representatives
11th District, VA

Panel II

Wade Henderson
President & CEO
Leadership Conference on Civil Rights

Yolanda Lee
U.S. Army Guard Captain
District of Columbia National Guard

Jonathan Turley
J.B. & Maurice Shapiro Professor of Public Interest Law
George Washington University Law School

In Hepburn v. Ellzey (1805), the Supreme Court in the personage of no less than CJ John Marshall acknowledged that while the word “state” was sometimes used in the more restrictive sense advocated by Professor Turley & Vince, in other places in the Constitution it was used more broadly and in accord with the generally accepted legal definition which holds it to means a “distinct political society.” While Marshall did not accept the view that DC was a “state” for purposes of federal court jurisdiction, he did say that “this is a subject for legislative, not for judicial consideration.” Implying that the legislature could constitutionally apply a broader meaning of “state” to include the District in the ambit of rights available to the “states.” This case was the precursor to the case cited by Professor Turley, Nationwide Mutual Ins v. Tidewater Transfer, which permitted DC residents to sue in federal court despite no such authorizing language in Article III.

I agree the Bill will have to withstand Constitutional scrutiny, but I disagree this is a “brightline” case with legislation that is obviously unconstitutional. In essence, Professor Turley and Vince argue that the Court may consider DC a “state” for fundamental constitutional protections of its citizens, but not for the most basic right of all citizens which is representation in government. As Professor Turley says in his statement above, “The major cases extending the meaning of states to the District involved irreconcilable conflicts between a literal meaning of the term state and the inherent rights of all American citizens under the equal protection clause and other provisions.” I find this a little curious and a “distinction without a difference” which turns the concept of representational democracy on its head. If one cannot vote, what value is there to possess handguns, sue in court, or enjoy such other “fundamental” rights which may, by plebiscite of those other than yourself, be taken away without even a legal whimper from you. I think the opponents of this Bill are too dismissive of the rights of DC citizenry by claiming they gave up one right (representation) to obtain another (to be a capitol city). I suspect DC residents would revoke that deal in an instant if they had ever bee given the chance–which they weren’t.

From a policy standpoint the Bill does redress a wrong and its approach, while not perfect, certainly represents an improvement over the current abominable situation, until something more constitutionally perfect comes along.

THE CURRENT, Wednesday, December 3, 2008, 11

Voting rights bill may violate Constitution
VIEWPOINT
Vince Treacy

The Current’s Nov. 19 editorial “It’s time for a vote” expresses support for the bill for a voting representative for the District of Columbia because it does not overreach and has a sense of bipartisanship.

But the supporters themselves may be overreaching. Under the authority of the U.S. Constitution’s District of Columbia clause, the bill would give D.C. a single voting representative. The District clause is a supreme municipal power over capitol affairs, but it may not be a national power to alter the Congress.

The bill falls far short of full representation, with no voice on treaties, cabinet officers and federal officials, Supreme Court justices, or the federal and D.C. judges who rule on every aspect of District life. Simple legislation in any future Congress could eliminate the representative. Given the drawbacks, it may be better to work patiently for statehood in the future.

The scheme started out as a GOP idea to pre-empt any future demand for senators, while silencing the protests against taxation without representation. Rep. Tom Davis, R-Va., originated it, bolstered by an opinion from Viet Dinh, a former Bush Justice Department official. The Washington Post reported in November 2004 that a House Committee paid Dinh $25,000 for his opinion. Former Judge Ken Starr joined in.

Rep. Davis was confident that Dinh had settled all constitutional questions, but Dinh met withering opposition from legal scholars, led by George Washington law professor Jonathan Turley. [http://docs.law.gwu.edu/stdg/gwlr/issues/pdf/76_2_Turley.pdf] The nonpartisan Congressional Research Service also questioned the constitutionality of the bill. [http://www.dcvote.org/pdfs/congress/JC052307Thomas.pdf]

The researchers suggested a constitutional amendment to provide D.C. with a vote, with a matching vote for Utah, contingent on ratification. Senator John Warner, R-Va., offered a similar approach. But DC Vote rejected it, confident that the solicitor general would defend them in court. That hope was dashed for 2008, at least, when the Justice Department opposed the bill in the House and Senate judiciary committees. Experts who supported the bill would only say it was strong enough to go to the courts.

Del. Representative Eleanor Holmes Norton, D-D.C., gave her support to the bill, but in the Senate, Republican support, except from Utah, evaporated, and cloture failed. With Rep. Davis and Sen. Warner now gone, only Utah and the D.C. Republican Party remain in support, leaving little bipartisanship.

The bill is likely to pass in 2009, but the new members might not be seated. Under the Constitution, the House is the final judge of the qualifications of its members. But a court may grant a preliminary injunction if it finds: 1) opponents are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in their favor, and (4) the injunction is in the public interest. The opponents seem likely to succeed on the merits. Irreparable harm would ensue if the new representatives were found unconstitutional, since it would question the validity of the laws they voted for. Supporters would suffer little harm by waiting until appeals were resolved. The public interest in maintaining the integrity of Congress could far outweigh a short delay.

And, in the end, the bill may be held unconstitutional.

That would leave the three valid means for full representation for D.C.: (1) a constitutional amendment; (2) retrocession with the express consent of Maryland; or (3) statehood. The amendment process was tried in 1978, and failed. Retrocession has never won the support of the people of Maryland, and the necessary approval of the Maryland legislature is very unlikely ever to occur. Even though Professor Turley believes that Maryland could be forced to accept D.C., he cites no authority for it and does not advocate it.

While statehood may be deferred at present, the bill should immediately establish a National Capitol Service Area, limited to parks, federal buildings, and installations under sole federal control. This is to make it clear that the D.C. Delegate or member represents people, not buildings.

Finally, a blue ribbon commission should be set up to examine the problem of voting representation for the District and all the territories in the light of the founding principle of our nation, that governments derive “their just powers from the consent of the governed.”
Vince Treacy is a Spring Valley resident.

I am scheduled to testify on the bill on Tuesday, January 27th. I remain convinced that, while I strongly support a vote for D.C., this is a flagrantly unconstitutional bill.

JT

Here is the latest information from the House Committee site:

QUOTE Hearing Information

Hearing on: H.R. 157, the “District of Columbia House Voting Rights Act of 2009″
Tuesday 01/27/2009 – 10:00 A.M.
2141 Rayburn House Office Building
Full Committee
By Direction of the Chairman

Hearing Documentation
No documentation or video available ENDQUOTE

It is not clear if Professor Turley was invited.