Constitutional Law, Media, Politics

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

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 downplays 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 that 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.

84 thoughts on “United States Supreme Court Affirms Denial of Voting Rights For D.C.”

  1. In respect to statehood as an alternative to retrocession, Turley writes “…there remains only statehood. Again, that constitutional option has never been in doubt and never debated.”
    I’m uncertain ho to interpret the assertion “that constitutional option has never been in doubt”. If he means that the option of statehood would be a Constitution slam-dunk, I must disagree.
    Article I Section 8, PP 17
    “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, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;”

    and. more particularly

    23rd Amendment, Section 1
    “The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct:

    A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.”

    Both texts create special conditions for the “seat of government” that seem to clearly contravene the rights, obligations, and very definiton of a state. I think it highly likely that statehood for DC would require, at minimum, revocation of the 23rd A., and quite possibly ratification of a new Amendment specifically directed to modify A. I, S. 8, PP 17.

  2. Turley concludes:

    “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.”

    I agree.

    Say what you will about the Post ignoring countervailing legal views, however, it is NOT subject to a billion dollar defamation lawsuit as is Turley’s Fox News for deliberately or recklessly broadcasting outright *lies* about the election being rigged or otherwise hacked. As bad as the Post is, it has not sunk to the depths of Fox News.

      1. Interesting. I think it is welcome that defamation lawsuits are being resorted to check lies and false narratives. Good speech alone is failing to discredit bad speech. Defamation, boycotts and public shaming are far more effective in deterring bad faith lies and reckless false statements.

        1. Public shaming has no effect when they have no shame. Repeating the lie works for the cult and they know it. Example……Mitch McConnell and the debt ceiling.

          1. “Public shaming has no effect when they have no shame. Repeating the lie works for the cult and they know it. “

            When dealing with the left, your words are true.

  3. NEWS HEADLINE!

    Wait! Stop the presses!

    “Supreme Court Learns How to Read the “Manifest Tenor” of the U.S. Constitution”

    Just in time, eh?
    _____________

    Now, why don’t all you communist (liberal, progressive, socialist, democrat, RINO) Justices, have a look at Article 1, Section 8, wherein Congress is provided the power to tax ONLY for “…general Welfare…,” not individual welfare, specific welfare, redistribution of wealth or charity, and wherein Congress is provided the power to regulate ONLY money, commerce and land and naval Forces, then proceed to the 5th Amendment right to private property which is not qualified by the Constitution and is, therefore, absolute, providing only owners of private property the power to “…claim and exercise dominion…” over related private property.

    The entire American welfare state is unconstitutional including, but not limited to, matriculation affirmative action, grade-inflation affirmative action, employment affirmative action, quotas, welfare, food stamps, minimum wage, rent control, social services, forced busing, public housing, utility subsidies, WIC, SNAP, TANF, HAMP, HARP, TARP, HHS, HUD, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc. All of these eminently noble and honorable pursuits may and must be pursued in the free markets of the private sector.

    Apparently, the only ones who have not yet got the memo are the Justices of the Supreme Court.
    ____________________________________________________________________________

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “…men…do…what their powers do not authorize, [and] what they forbid.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton
    ________________

    “[Private property is] that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

    – James Madison

  4. Imagine the conflict of interest when Congresspeople, many of whom live in DC, vote on matters pertaining to a state of DC. Instead of just 2 senators living in a state in question, all 50 of them would, at least part time.

    More and more, the Left seeks to create The Hunger Games, complete with districts rendered powerless with a popular vote, and a Capitol of Panem.

  5. If this was really just about the residents of DC having more of a say, then retrocession would answer. Making what is essentially a city a state is ludicrous. It was just a ploy to get more Democrat votes.

    Retrocede all the land except for that upon which the White House, Capitol Building, and Supreme Court rests.

    1. Exactly. This is a never ending ploy by one political party to try and gerrymander permanent win with numbers in this scheme to defraud and get around the constitution. A constitution of which they wholeheartedly despise because it does not allow them the instant gratification they deem themselves worthy of. Can you name one anti constitutional move Pres trump made ?. We can name several Obammy did , and by god more so for lord senile darth biden of chyna…. his handlers have pushed the limits like no other !.

  6. If WDC becomes a state, might that not be a source of conflict with other states given that the national government is in WDC? Might WDC be fighting with the other states for resources and advantages instead of acting in a non-partisan manner to benefit all states equally?

    1. Do Easter Islanders pay taxes? People in DC do. Funny, but I recall the phrase condemning “taxation without representation”.

      1. You are soooooo right!

        I do recall hearing that America is a society of laws.

        Looks like “…people in D.C….,” squatters from the South, aren’t supposed to be in D.C. at all, but in their country of origin, as freed slaves must have been deported per immigration law in 1863 requiring citizens to be “…free white person(s)….”

        Looks like the law has been ignored for a very long time; looks like this may be an historic “cold case.”

        Don’t you just love law?

      2. Making D.C. a state has nothing to do with taxes. It’s about giving the democrats 2 more senators and at least one more congressman. That’s it nothing more, nothing less.

      3. Nurse Practitioner – Attorney Natacha asks

        Do Easter Islanders pay taxes?

        Only on Festivus Day

  8. This issue highlights’ the pervasive Modus Operandi of the left, half truths or lies to fulfill their Utopian view.

    A new State and what to call it? Let’s call it REDATAPE.

    What should be its motto?

    ‘Between the Anacostia and Potomac Rivers we preach ascendancy to our directorate. We worship Hegemony, and the Prepotency that residency in the State of REDATAPE brings to its Citizens. We trust in Bureaucracy and all the benefits of centralized control. We hold the Truth: State before Citizen.’

    The Capital of the United States should sit on sovereign land, without affiliation to a singular State. So what to do with the Citizen of the District? Lampooning: all adults could be distributed individual citizenship in one of the 50 states for Congressional Representation and maintain the current local Governance.

  9. Just how fast would this SCOTUS give 2 Senators to DC, if it was a haven of republicans. They would find a way, that much is certain.

    1. No, FishWings, that’s what a Supreme Court expanded and packed with far Left ideologues would do to get more Democrat Senators. Conservatives are generally originalist.

      Stop projecting.

      1. Karen: you’re not qualified to opine about SCOTUS matters, especially what it means to be “originalist”, so stop trying to lecture others are “projecting”. You are just repeating something you heard on Hannity. Republicans packed the Court with far right-wingers who don’t reflect the values of the majority of the American people, and did it by cheating, like they do everything, beginning with Trump cheating to get into the White House in the first place despite losing the popular vote, McConnell then denied Merrick Garland a seat on the SCOTUS allegedly because of the proximity of the election, only to prove himself a total hypocrite when the same factual scenario arose and he had a chance to shove Covid-Barrett onto the Court. Republicans denied the American people a full hearing on Kavanaugh and his conduct, and this was for a lifetime appointment to the court of last resort in this country. Gorsuch, Covid-Barrett and Kavanaugh were nominated PRIMARLY due to their far-right ideology, after vetting by the Federalist Society, and are there to curry favor with Evangelicals who live in a fantasy world in which they’ve been led to believe that by voting Republican they are saving “unborn babies”, which are blobs of tissue can’t live outside the womb.

        And, Karen, for the last time, you are NOT a conservative because you are a Trump worshipper. YOU are an ideologue.

    2. Fishflaps…you are so one way there is nothing to you that is not an oxymoron. Like a broken record bruh….really get a new act.

    1. See how fast you would yell and cry if you had to pay Federal taxes, and not have federal representative power.

        1. Just like living in upstate New York. Held hostage by the lunatics in that cesspool at yhe bottom of the state.

        2. Wen Bars, tell me about it. I live in CA. Most areas of CA are Red, but the cities are deep Blue. Unfortunately, the highly populated cities have the votes to rule the rest of the state, and fuel the water wars.

      2. These people CHOOSE to live where they do. Representation for them is just across the border. No one is holding them captive.

        1. So you CHOOSE to be held by lunatics, but the good people of DC CHOOSE to have elected representative officials. Read their car license plates.

            1. Hopefully she didn’t have a gaseous stool movement given tht she was being recorded.

            2. Did this parasitic, criminal, foreign invader, hyphenated illegal alien just say that it/they were going to VOTE an American Senator out of office?

              Sounds about right for the communists (liberals, progressives, socialists, democrats, RINOs).

              What happens if actual Americans ever get mad about their nation being stolen?

        1. So in the United States in your view, people that live and work in the US, may or may not have representatives in government depending on where they live? That sound about right given how the trump cult party thinks.

            1. Kyrsten Sinema is pathetic. She doesn’t even know how to dress professionally–low-cut, sleeveless dresses and pantsuits showing her cleavage, flabby arms and armpits, with loud, gaudy colors and prints. Then, there’s the 6 inches of black roots showing. She takes huge donations from Big Pharma. She can’t even articulate why she opposes various bills. She doesn’t represent Arizonans very well.

          2. FishWings, actually, what many of us think is that retrocession is the logical answer. DC already ceded land back to Virginia in 1847. Originally, it was considered unwise for the seat of government to have a say in government equal to the states. DC is far more like a city than a state.

            It might prove dangerous to make DC a state, because the minuscule state would have politics as its only industry.

            If all you want is that residents have representation in government, then retrocession should satisfy you. The land would go back Maryland. This would provide federal representation to all residents of the former District of Columbia.

            The only land that should remain under federal control should be the White House, Capitol, Supreme Court, and National Monuments.

            Does this satisfy you, or do you really just want more Democrats Senate seats? If you do, just say it, and quit pretending all you want is representation.

          3. Fishflaps …. you sound like you pine for office in the swamps of DC. Is it your lust for power that drives you to be so anti constitutional in your pining for a fijord in DC with appointed politicos like REAL states have ?. Your stark mad raving gobbledygook on this is so partisan , so out of step with the constitution…. it’s apparent you can not accept that. Typical Marxist.

      4. FishWings, you made about 4 comments in close proximity, one more stupid than the other. There is a reason DC exists as it does, but that is too far above your pay grade. That is why you always provide such foolishness to the blog. Don’t worry. No one knows who you are except those you meet in real life. Hopefully, you are a bit smarter there than here.

        SM

  12. The land was taken from Maryland and should be returned to MD. After all, the part of Virginia that was taken from that state to form part of D.C. was eventually returned to VA. Why should MD residents be the only ones left holding the short end of the stick? It doesn’t seem that the interests of MD residents have been considered in all of this. Leave the Federal government area (Federal Triangle District) as D.C., and return the residential parts of D.C. to Maryland, AKA “the Free State”!

  13. Court reporting today is increasingly marked by one-sided accounts that ignore countervailing views or even judicial holdings.

    The left loses on the battlefield of ideas. Their only option is disinformation.
    That the reason polling shows people think the court has become more political as more justices have been appointed by Republicans. The media lies about SCOTUS rulings. Just like this ruling will be viewed as a political decision, despite the ruling adhering faithfully to the Constitution.

    1. “Court reporting today is increasingly marked by one-sided accounts that…only tends to fuel the anger of readers who were never fully informed”.

      Only ‘some’ readers. Many Leftists quite enjoy their ‘blissful hatred’ (for lack of a better term) of being cocooned by their journalists and welcome a government that promotes using force against the other half of the population who disagree with their viewpoint, you know, “for their own good”. If they were ever to be fully-informed, one must leave room for the possibility more of them would figure out government is not really in their corner at all.

  14. The biggest fact, people make a choice to live in the city of Washington DC. People make a choice to have no representation in the federal government.
    I have no problem with Turely’s solution to just absorb the residential porttions of DC into the respective states. It allows all are represented in the federal government.

    As is the standard for leftist, allowing DC resident a vote has never been the goal. The goal has nothing to do with representation, it has to do with adding 2 additional Senators.

    Where to we go to stop WAPO from publishing disinformation?

    2. The truth….which the WaPo has an aversion of, is the State of Maryland does not want those District Residents becoming residents of the State of Maryland and bring all their problems with them to the State.

      Maryland Democrats would not benefit enough to offset the downside of those folks becoming yet more Democrats in the State.

      The Democrats want the Congressional Votes….not the social welfare expense.

  15. “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.“
    ************************
    Just a part of the demoralization process of our Marxist press as a prelude to destabilization. We were warned about this decades ago but ignored it.

  17. Retrocession is the best answer, but that would not give the D’s 2 more Senate seats, which is all they are after. Constitution/clear intent be damned

    1. The district is populated mainly by ignorant black people and woke white leftist who give aid and comfort to black grievance and victimization politics. They do not deserve statehood while they embrace victimhood.

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