Advocates of this approach contend that it is constitutional. Opponents assert that D.C. voting rights could only be constitutionally enhanced by other means.
The DC Vote proposal would not give the District of Columbia any representation in the Senate, but it would affect the Electoral College. Under the DC Vote proposal, the voting power of the district's citizens in presidential elections would remain at three electoral votes, pursuant to the 23rd Amendment. The DC Vote proposal, by awarding Utah another House seat, would give that state another electoral vote, at least temporarily.
The issue of taxation without representation in the District of Columbia is not new. For example, Chief Justice John Marshall addressed it in an 1820 opinion for the Supreme Court:
The difference between requiring a continent, with an immense population, to submit to be taxed by a government having no common interest with it, separated from it by a vast ocean, restrained by no principle of apportionment, and associated with it by no common feelings; and permitting the representatives of the American people, under the restrictions of our constitution, to tax a part of the society...which has voluntarily relinquished the right of representation, and has adopted the whole body of Congress for its legitimate government, as is the case with the district, is too obvious not to present itself to the minds of all. Although in theory it might be more congenial to the spirit of our institutions to admit a representative from the district, it may be doubted whether, in fact, its interests would be rendered thereby the more secure; and certainly the constitution does not consider their want of a representative in Congress as exempting it from equal taxation.
In the years since Marshall wrote those words, the District of Columbia has achieved increased self-government, committee representation in the House of Representatives, as well as voting rights in presidential elections. Only citizens of Wyoming currently have more voting power per capita in presidential elections than D.C. citizens.
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
One of the legal issues now is whether Congress has authority, by statute, to affect how (Article I, Section 2, Clause 1) of the Constitution should be interpreted or applied. Proponents of a statute giving Washington D.C. a vote in the House say that Congress has the requisite authority under Article I, Section 8, Clause 17 of the Constitution:
The Congress shall have Power....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....
Chief Justice John Marshall wrote as long ago as 1805 that Congress can use its Article I power to give DC citizens access to federal courts in order to sue citizens of other states, even though that jurisdiction is not explicitly catalogued in Article III, Section 2. Congress eventually granted such jurisdiction, in 1940, and that act was later upheld by the Supreme Court.
There are other pertinent constitutional provisions as well. The following words can be found in both Article I, Section 2, Clause 3 of the original unamended Constitution, as well as in Section 2 of the Fourteenth Amendment: "Representatives ... shall be apportioned among the several States ... according to their respective Numbers...."
The Twenty-third Amendment to the United States Constitution is also relevant, since it gives D.C. residents a vote in presidential elections as "if it were a state." Likewise, Article IV, Section 3, Clause 1 is relevant, since it gives Congress power to grant statehood:
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
These are the primary pertinent parts of the Constitution. But, there are other constitutional provisions that may come into play too (e.g. the provisions in Article V related to new amendments).
Jonathan Turley, George Washington University law professor, believes the D.C. portion of the bill is "flagrantly unconstitutional" because the Constitution gives representation to "the people of the several states."
It would take a constitutional amendment to give the district unquestioned congressional and Senate representation, he said. Addressing it legislatively means another Congress could always revoke the voting privilege later.
"This is the equivalent of having Rosa Parks go to the middle of the bus, the ultimate compromise of principle," he said, referring to the civil rights protest Parks launched when she refused to move to the back of a bus, as required by Jim Crow laws. "Either D.C. residents are entitled to be full citizens or not.
Other constitutional law experts have reached a different conclusion. For example, Patricia Wald and Kenneth Starr have written: "There is nothing in our Constitution's history or its fundamental principles suggesting that the Framers intended to deny the precious right to vote to those who live in the capital of the great democracy they founded. Viet Dinh and Adam Charnes have also written on this subject, in favor of a statutorily granted House vote to the District of Columbia. Turley calls the analyses of Starr and Dinh, "uncharacteristically liberal interpretations of the text of Article I."
Supporters of the DC Vote solution rely on the Supreme Court’s opinion in National Mutual Insurance v. Tidewater for the idea that Washington D.C. can be treated as a "state" for purposes of Article I of the Constitution. However, opponents of the DC Vote solution argue that seven of nine justices in the Tidewater case rejected the view that Washington, D.C., is a “state” for purposes of Article III of the Constitution. Supporters of the DC Vote solution also rely on Tidewater for the idea that the language of Article III ("judicial Power shall extend to...") allows Congress to extend the judicial power farther than what is spelled out in Article III, and therefore they say that the language of Article I ("House of Representatives shall be composed of...") should likewise allow Congress to supplement the composition of the House beyond what is spelled out in Article I. However, opponents of the DC Vote solution argue that six of nine justices in the Tidewater case rejected the view that the language of Article III can be supplemented in that way; also, the language of Article I ("shall be composed of") is different from the language in Article III ("shall extend to").
Even in the absence of an enfranchising federal statute, some DC citizens have argued that their disenfranchisement is unconstitutional. But, that argument was rejected in the case of Adams v. Clinton, in which the federal district court stated:
Such evidence as does exist ... indicates a contemporary understanding that residents of the District would not have a vote in the national Congress. At the New York ratifying convention, for example, Thomas Tredwell argued that "[t]he plan of the federal city, sir, departs from every principle of freedom . . . subjecting the inhabitants of that district to the exclusive legislation of Congress, in whose appointment they have no share or vote."
In contrast, there is no direct evidence that any of the framers believed that citizens of the federal district could have a vote in Congress. According to John Fortier, "Only the people of the states may choose members of Congress, and the District of Columbia is not a state. This language is confirmed again and again in the Constitution....
Even if a statute could legitimately give the District of Columbia a vote in only one of the two houses of Congress, questions would remain about the legitimacy of apportioning an additional representative for Utah] During his 2004 campaign for President, Senator John Kerry declined to support the DC Vote proposal: "I would not sign the congressman's bill into law because I think that bill would create all kinds of side issues about reapportionment across the country....Given the current games that have been played with that, I think that would be very dangerous.
On January 24, 2007, the Congressional Research Service (CRS) issued a report on this subject. According to the CRS, "it would appear likely that the Congress does not have authority to grant voting representation in the House of Representatives to the District.
The bill would eliminate the District's congressional delegate seat, and permanently increase the size of the House by two seats, from 435 to 437. One new seat would go to the District of Columbia, and would almost certainly be occupied by a Democrat. Another new seat would go to Utah until the reapportionment due to take place following the 2010 census. Utah fell just a few hundred residents short of a fourth House seat in the 2000 census, and the Utah seat would almost certainly go to a Republican.
This change would thus have an impact on the Electoral College: while the District's number of electoral votes would remain unchanged, Utah would gain one additional elector until the reapportionment due to take place following the 2010 census as stated above. Since the District already has one electoral vote for the House member it would have if it were a state, and two electoral votes for the Senators it would have if it were a state, the bill would create only one more electoral vote, which would go to whichever state has the new seat. One additional electoral vote would also bring the total number of electoral votes to 539, making a tie less likely. Under this proposal, the District would be treated differently than a state for purposes of House representation — the bill specifically states that the number of House members from the District cannot exceed one, regardless of population. This is consistent with how the District is treated under the Twenty-third Amendment, which limits the District's electoral votes to the number which the least-populous state is eligible to cast, i.e., one for its representative and one each for each senator.
On March 13, 2007, , the "District of Columbia House Voting Rights Act of 2007" passed the House Committee on Oversight and Government Reform by a vote of 24-5..
The House Judiciary Committee approved H.R. 1433 on March 15 by a vote of 21-13, whereupon the White House announced its opposition.
A new version of the bill - - was passed by the full House on April 19 by a vote of 241-177.
This new version is technically pending in the Senate (see below regarding Cloture). The Senate bill is sponsored by Joseph Lieberman of Connecticut, and Orrin Hatch of Utah. Lieberman chaired a committee hearing of the U.S. Senate Committee on Homeland Security and Governmental Affairs on May 15, and the Senate bill cleared that committee in June 2007 by a vote of 9-1, with Senator Susan Collins of Maine saying that the questions about constitutionality should not delay passage of the bill. The Senate Judiciary Committee had a similar hearing on May 23.
The Senate considered ending debate (invoke cloture) on this bill on September 18, 2007. The motion failed, because only 57 Senators voted for the motion (60 needed for passage).