Norton Releases Questions on Davis Proposal Raised by Her D.C. Voting Rights Lawyers Task Force
Says Questions Raise Constitutional and Political Doubt
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August 14, 2003
Washington, D.C. -- Congresswoman Eleanor Holmes Norton (D-DC) today released a series of questions raised by a Task Force of lawyers that she convened to analyze Congressman Tom Davis' (R-VA) proposal to grant District residents voting rights in the House of Representatives as if they were residents of Maryland. The Task Force identified nine major issues and additional sub-issues. The issues raised were so serious and numerous that the Task Force suggested that another alternative might be appropriate -- treating the District as if it were a state solely for voting purposes. The issues were discussed in the form of questions without stated answers. However, the possible answers to a number of the questions could prove disqualifying constitutionally, legally, or politically, or might be so unacceptable to Maryland or the District as to foreclose acceptance or passage of a bill. Among the most serious questions raised by the Task Force are whether the proposal would allow Maryland to relocate parts of the District into other Maryland districts as a result of redistricting; whether there would be a constitutional obligation to allow D.C. residents to vote for Maryland Senators; and whether constitutional requirements would deny the District the possibility of being represented by a District resident if the city became a Maryland district.
The Task Force also cast doubt on the political neutrality of the proposal, suggesting that the loss of D.C.'s politically Democratic electoral votes could affect the outcome of a close presidential election and listed objections that both D.C. and Maryland might raise.
Congresswoman Norton said, "The Task Force was asked to identify issues and questions raised by the Davis proposal in order to make it possible for the public to begin to evaluate both its possibilities and its problems. The Task Force did not attempt to answer the questions it raised at this stage. However, I believe that the average person will find that the issues that have been identified cast constitutional and political doubt on the current Davis proposal. Yet, I do not believe that the Task Force's work forecloses the Davis proposal. We are anxious to hear more from Tom and continue to be encouraged by his efforts. We remain open to Congressman Davis' work, especially in light of his assurances that he remains open to suggestions and to a range of options."
Norton first met with the Task Force, comprised of government and private lawyers, last month to discuss the implications of the Davis proposal. Norton asked the Task Force to report back with questions raised by the proposal, so that she could release those questions to District residents.
The Task Force's full comments follow.
The questions presented to Congresswoman Norton by the D.C. Voting Rights Lawyers Task Force are based on the following assumptions about the current description of the Davis proposal:
- The size of the House of Representatives would increase from 435 members to 437 members, but would return to 435 members following the next census;
- The District would receive voting representation in the House and the state of Utah would receive an additional seat. [Utah barely missed gaining another seat in the last reapportionment];
- The population of the District would be included with the population of Maryland for apportionment and redistricting purposes; and
- D.C. residents would be treated as if they were residents of the state of Maryland for the purposes of voting for a member of the House.
The questions the Task Force raises follow.
(1) Political and Geographic Cohesiveness of the District of Columbia
In order to justify creating a new congressional District in Maryland and treating D.C. residents as if they were residents of that new Maryland district, Mr. Davis' proposal would include some actual Maryland residents in the new congressional District. The total population of the new proposed district (including all of D.C. and some portion of Maryland) would be approximately 650,000 residents. In the next apportionment following the creation of the new district, what is to keep the Maryland legislature from splitting D.C. and joining it with two or more Maryland congressional districts? Since the Constitution reserves redistricting to the states, could Congress constitutionally ensure that Maryland would not split D.C. into two or more parts through simple legislation, eliminating the present cohesive geographic, political and legal character of the District?
(2) Effect on Senate Representation
Does granting the District a vote in the House bring the District one step closer to full representation in the Senate, or does it virtually preclude Senate representation? If District residents are treated as residents of Maryland for the purpose of voting in the House, is there a constitutional obligation to allow D.C. residents to vote for Maryland Senators? Conversely, can Maryland residents be deprived of their right to vote for Senators by being placed in a D.C. district? Does it violate the Equal Protection clause of the Constitution to have some residents in a congressional district voting for Senators while others are barred from doing so?
(3) Representation of the D.C. District by a D.C. Resident
Does the Constitution allow D.C. residents who do not actually live in Maryland to choose the representatives of that state? If it were constitutional to treat D.C. residents as if they were residents of the state of Maryland for the purposes of voting, would D.C. residents be constitutionally precluded from representing the new Maryland district, given the language of Article I specifically requiring that representatives be inhabitants of the state in which they are chosen?
(4) Effect of Changes in D.C. or Maryland Population on Redistricting
If, as seems likely, the proposal would require both Maryland and Utah to redistrict, could the new district be eliminated entirely if the population of Maryland or the District decreases to a level that would not support the additional district? In addition, if the population of Maryland or the District rises significantly, allowing either jurisdiction to claim additional House members, would Maryland or would the District receive the additional seat? Would the effect of redistricting in Utah be to make the lone Utah Democrat's reelection more difficult? Would the proposal encounter difficulty because Members fear they would lose a seat because the overall number of representatives under the proposal will decrease from 437 to 435 after the next census?
(5) Disposition of the District's Electoral College Votes
Because representation in the Electoral College is based on the number of Senators and Representatives in the states, wouldn't Maryland receive only one more electoral vote to correspond with the new district? If so, and the District's three reliably Democratic electoral votes were eliminated, wouldn't the result be to tilt the votes in the Electoral College in favor of a Republican presidential candidate, if a presidential election were determined by a small number of votes?
(6) Political Controversy
While the proposal on its face has some rough Democratic and Republican parity, does this equivalence ultimately break down? For example, is the proposal politically feasible, considering the likelihood of objections from Maryland elected officials and residents because of the "transfer" of some Maryland residents to a district dominated by D.C. and the resulting dilution of Maryland representation, as well as because of objections from some in the District to being incorporated into Maryland for representation purposes? Would Maryland's Republican governor and representatives object to a new Democrat in the Maryland delegation or to having another electoral vote that would likely be Democratic in presidential elections?
(7) Effect on Home Rule
Once D.C. is subject to Annapolis for redistricting, can the proposal guarantee the District's ability to continue to govern itself and that the power of the Maryland legislature over the new district would be strictly limited to redistricting? Could there be language ensuring that the District's existing home rule authority be protected? Could the very act of redistricting produce intended or unintended substantive policy and political inhibitions?
Shouldn't the bill creating two new House seats for D.C. and Utah have a clause that the bill is not severable, meaning if the D.C. portion of the bill were found to be unconstitutional, the Utah portion also would fall, or could Utah get a seat leaving the District with nothing?
(9) Creating a D.C.-only District
Would many of the potential problems raised by the proposal be avoided if, instead of treating District citizens as if they were residents of Maryland for congressional voting purposes, it simply treated the District as if it were a state solely for voting purposes?
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