Worldrights' Congressional Testimony on H.R. 157

January 27, 2009

Subcommittee on the Constitution, Civil Rights, and Civil Liberties
Committee on the Judiciary, U.S. House of Representatives
Washington, D.C. 20515

Distinguished Chairman:

As a long-time DC statehood and equal voting rights activist, I write to express my opposition to the District of Columbia House Voting Rights Act of 2009 (H.R. 157), which would grant D.C. residents a vote in the U.S. House of Representatives only.

I have serious reservations about its viability, both as congressional legislation and as a matter of political principle. I believe that it is unconstitutional and unworthy of D.C. residents. In light of over 200 years of disenfranchisement, the people of the District of Columbia should not be expected to settle for anything less than equal rights. And the Democratic Party should never be seen supporting legislation that would grant anything less than equality to fellow Americans. In my opinion, an endorsement by the Party of that questionable proposition—one-third voting rights in Congress for U.S. citizens who bear the full responsibilities of citizenship—is anathema to the fine tradition of political and economic equality that the Democratic Party has long championed. The contradiction cannot be reconciled.

I maintain that the D.C. Voting Rights Act (the Act) is fatally flawed. I submit that it is constitutionally suspect, preservative of embarrassing international human rights violations that will not be remedied by the passage of the Act, politically corrosive to the general cause of achieving equal rights, and, as noted above, subversive of core Democratic principles that should never be sold short.

1) The D.C. Voting Rights Act will likely be deemed unconstitutional.
While the Constitution's District clause is a preeminent metropolitan power over the nation's capital, it is doubtful courts will interpret it to be a federal power to modify the architecture of Congress. For a withering analysis of the bill's legal infirmities, we recommend Jonathan Turley's George Washington Law Review article, Too Clever by Half: The Unconstitutionality of Partial Representation of the District of Columbia in Congress. Moreover, the Congressional Research Service cautions the legislation is "likely unconstitutional." Even the bill's chief supporters concede the bill faces an uphill legal battle. The plain language of the constitution is difficult to overturn, especially without ample precedent.

Should the Act pass, our elected representative is still unlikely to be seated.

While the House is the final arbiter of the qualifications of its members, a federal court may grant a preliminary injunction should it determine: 1) plaintiffs 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. Plaintiffs 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. Defendants 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.

2) The D.C. Voting Rights Act will fail to remedy existing human rights violations.
Should the Act became law, it would nevertheless fail to remedy the existing human rights violations taking place in the District of Columbia under international human rights law. At a time when America is seeking to restore its moral authority on matters of human rights worldwide, the Congress and the White House's failure to remedy these violations in full would undermine that effort and continue to give fodder for opponents of democracy in Hong Kong and Belarus, for instance.

Unlike the residents of the federal enclaves of Brasilia, Mexico City, Buenos Aires, Caracas, and Canberra, who enjoy equal representation in their national legislatures—D.C. residents will not enjoy the same level of representation as the citizens in Brazil, Argentina, Venezuela and Australia even should the Act become law.

3) The D.C. Voting Rights Act is politically corrosive and is not a "steppingstone" to anywhere but political stalemate and the preservation of a single House vote, perhaps in perpetuity.
D.C. Delegate Norton and others maintain that the Act is a "steppingstone" to D.C. equal representation or eventually D.C. statehood. I couldn't disagree more. Given the history of our struggle, I maintain that should the legislation pass and be upheld by the courts that it will be used by opponents of statehood and equal voting rights to fend off any further advancement toward that end. Republicans and Blue Dog Democrats will argue that the District is a city—not a state—and that it is therefore unreasonable to grant them anything more than House representation; they will contend that if the District seeks Senate representation it should do so through retrocession to the state of Maryland and not through D.C. statehood. In my opinion, the Act likely will be the first step toward retrocession, even though neither the District nor Maryland has ever embraced this option. Which means that the Act may be a recipe for an intractable political stalemate—a road to one-third voting rights in perpetuity—not statehood or even equal rights.

4) The D.C. House Voting Rights Act is subversive of core democratic principles.
Representation that makes divisible rights conceived of as being indivisible under the U.S. Constitution sets a dangerous precedent because it undermines one of the most sacred of all legal principles: The right to equality before the law for all. That Democrats would endorse a bill that continues to deprive D.C. residents of the right to have a voice in treaty-making, the selection of cabinet officers and federal officials, Supreme Court justices, federal and D.C. judges who rule on every aspect of our lives, as well as the power to preside over impeachment proceedings and participate in cloture votes, is, in my opinion, incomprehensible. The integrity of core democratic principles should remain intact. Equality is equality. D.C. residents should never be asked to settle for less.

And surely it is not too much to ask for. After enduring two hundred years of disenfranchisement, D.C. residents should not be made to endure a token one-third vote in Congress, especially now that Democrats have come back—a change of circumstances that many thought impossible only a few years ago, and was used by proponents of this bill to justify it in a Congress dominated by Republicans. But now is not then. Democrats must not be seen legitimizing the questionable status of D.C. residents as one-third Americans for voting purposes any more than the U.S. Constitution should have ever defined male African-Americans as three-fifth citizens for voting purposes so many years long ago.

With Democrats at long last in charge, and with American's first African-American president having won the White House, the time has come for the principle of political equality to return to the light of day—for District residents and for their posterity.

I therefore respectfully request that this Committee consider the significant drawbacks of the D.C. House Voting Rights Act and support instead a new bill that we all can support, which would grant, at long last, equal rights and equal representation in Congress to the people of Washington, D.C.

Sincerely,

Timothy Cooper
Executive Director