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.