Bench Memos

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Null and Voinovich


Via e-mail (nothing yet on his website), Senator George Voinovich’s office has released a statement declaring the Ohio Republican’s support for the D.C. “voting rights” bill, which would give the District of Columbia a seat in the House of Representatives (but none in the Senate), and an additional House seat to Utah as well.  Voinovich is ranking member of the Senate subcommittee with D.C. affairs in its portfolio, so I suppose this announcement is intended to make some waves–though I haven’t noticed that the senator ordinarily carries many other Republicans along in his wake.

Voinovich acknowledges that opposition to the bill on constitutional grounds shouldn’t be “dismiss[ed] . . . without serious study,” but his statement provides nothing more than his unexplained conclusion that “the District Clause grants Congress the ability” to pass this bill.  He’s referring to Article I, section 8, clause 17, which provides Congress power to “exercise exclusive Legislation in all Cases whatsoever” over the District where the nation’s capital is located.

Okay, one more time (see here for a previous appearance of the argument that follows).  The reason that this clause gives Congress the power to legislate in plenary fashion over the District, functionally identical to the power of a state legislature over its people and territory, is that the same clause indicates the District will be formed by cession (i.e., removal) of territory from one or more states.  Hence the people residing in the District will no longer be in a state, and will need new government, which the clause directly lodges in the Congress.

But for just the same reason–that D.C. is not a state and its residents by definition do not live in one–it and they are incapable of being represented by full-fledged seats, to which votes are attached, in either house of Congress.  Only states may have House members and senators.  Only states may administer congressional elections.  Only states may, in the first and last instances (subject to reversal or control by act of Congress), determine the “Times, Places and Manner” of House elections.  Only state laws can determine who is eligible to vote in House elections, an eligibility that is stated to be identical with the right to vote for the lower house of each state legislature (again, subject to applicable constraints such as the Fifteenth, Nineteenth, and Twenty-sixth Amendments, which rule certain forms of discrimination in eligibility out of bounds).  Only state populations are counted in the census for purposes of determining seat allocations in the House (see section 2 of the Fourteenth Amendment).

The closest thing to an argument supplied by Sen. Voinovich’s statement is that “citizens of the District of Columbia who pay taxes and serve in the military should have representation in their federal government.”  Several variations are played on this theme throughout the senator’s statement.  But of course it is a perfect non sequitur.  What the people of D.C. “should have” on some moral basis, and what the Constitution in its current form permits them to have, are quite separate questions.

The president should stick to his veto threat.  “Let the courts hash it out,” which appears to be the preference of Sen. Susan Collins, ranking member on the full committee with D.C. oversight, is nothing but a shirking of responsibility to kill a patently unconstitutional bill.


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