A reader, Vince Treacy, writes in:
I do have a comment on Michael Wein’s proposal at http://electionlawblog.org/?p=53006
The posting seems to be based on the bill reintroduced by Rep. Dana Rohrabacher (R-CA), “District of Columbia Voting Rights Restoration Act of 2013”, H.R. 299, 113th Congress, promoted by its supporters as retrocession-lite.
There are three constitutional methods for providing voting rights for the capitol city: constitutional amendment, statehood, or retrocession with the consent of Maryland. I favor statehood. The proposal for semi-recession is not one of the constitutional means. It has no basis in any of the enumerated power of Congress in the Constitution. It would violate numerous express provisions of the Constitution.
The author supported this scheme in a posting at the Washington Post in January 2011 entitled “A better road to the vote: Retrocession, with a twist.” Read it here:
He wrote: :The needed legislation involves only the constitutional provisions found in Article IV, Section 3, which state:
Clause 1: ‘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.’
Clause 2: ‘The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.’”
Neither provision, however, has any bearing on the proposal. Clause 1 permits the admission of new states, subject to limitations. Since the proposal would not make the District of Columbia a state, or a part of an existing state, it does not authorize the proposal for semi-retrocession.
Clause 2 grants Congress authority over territories. Since the District is not a territory, it has no relevance at to the District The District was created by Article 1, section 8, which is the sole source of Congress’s authority over the District.
These are legal errors. If the proposal relied only on these provisions, then it would have no constitutional basis. But there is no other apparent authority in the Constitution.
The bill itself makes no mention of the Territories Clause in Article IV. It instead relies on the District Clause , on the power over “Places purchased,” and the authority over federal elections in Article I, section 4.
The District Clause grants Congress the 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,…” Art. I, cl.8, sec. 17 (first part). While the clause grants Congress plenary municipal power over the Seat of the Government, it provides no authority to interfere in the elections provisions of a sovereign state, or of any other matter beyond District boundaries . The one exception, the extension of diversity jurisdiction to the District, was sustained by a divided Supreme Court in a decision without a majority holding.
Kenneth R. Thomas, CRS Report “The Constitutionality of Awarding the Delegate for the District of Columbia a Vote in the House of Representatives or the Committee of the Whole,” January 24, 2007.http://www.dcwatch.com/issues/voting070124.htm
Another possible source may be the power to “exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.” Art. I, cl.8, sec. 17 (first part). The bill itself, in its Findings in section 2(2),
The bill recites Congress’s exclusive legislation over the District and then finds in (section 2(3) that Congress “shall exercise like authority” over places purchased from the states for needful buildings. Since 1801, the District has never been a purchased place of “enclave” within Maryland or any other state. It is a “District” created by “Cession” for the “Seat of the Government of the United States” under an entirely different provision of clause 17.
The bill also cites the power of Congress to make or alter regulations governing the “Time, Places and Manner” established by legislatures “in each State.” Art. 1, sec. 4, cl. 1. While Congress is granted authority to supersede certain state election requirements, this clause gives it no authority to require a state to register residents of another jurisdiction who are not, and have never been, its citizens.
At one time, Congress ordered states to register 18-year old persons for federal elections, but that provision was superseded by the 26th Amendment, and those persons were state citizens. Similarly, states have been required to register former citizens who are overseas, but, once again, they are citizens; this law has not yet been sustained by the Supreme Court.
Even if there were any enumerated or implied power to support the bill (and I do not believe there is one), it would violate the literal terms of many express limitations on the power of Congress.
1. The House “shall be composed of Members chosen … by the People of the several States.” Art. I, sec. 2, cl. 1. The District is not a state, and has not been part of a state since it was created in 1801. Its residents therefore cannot be counted as people of the several states, although they are United States citizens.
2. House electors in each state must have “the Qualifications requisite for Electors of the most numerous branch of the State Legislature.” Art. I, sec. 2, cl. 1. The residents of the District do not, and cannot have, the qualifications for electors of the Maryland House of Delegates.
3. The Senate “shall be composed of two Senators from each State, elected by the people thereof.” 17th Amd., cl. 1. With respect to Maryland, the residents of the District are not, and cannot be, “the people thereof.” Senators cannot be elected from any area that, like the District, is not a “State.”
4. A Representative or Senator must be, when elected, “an Inhabitant of that State in which he shall be chosen.” Even if District residents were allowed to vote, no DC inhabitant could ever serve as Senator or Representative. Art. I, sec. 2, cl. 2; 17th Amd., cl. 1. The bill (sec. 3(b)) purport to “restore” the right of residents of DC to “be considered inhabitants” of Maryland, but, of course, an express constitutional requirement cannot be eliminated by a mere statute.
5. “Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors” equal to the number of its Senators and Representatives. Art. II, sec. 1, cl. 2. In violation of this reservation of authority to the states, the bill would order Maryland officials to register DC residents to vote for presidential electors.
6. The Constitution requires both congressional and state approval for any “Agreement or Compact with another State.” Art. I, sec. 10, cl. 4.This Clause applies to compacts between a State and the District (See. for example, compacts establishing Metropolitan Washington Area Transit Authority and Metropolitan Washington Airports Authority). The bill implicitly requires agreement between Maryland and the District over voting eligibility and procedures, but has no provision for votes of approval by either the legislatures or the people of either Maryland or the District.
7. The bill describes the District as an “enclave,” although it is not a federal enclave (a term not found in the Constitution), but a “District” created by the Constitution as “the Seat of the Government” of the U.S.
The proposed bill has been introduced in every Congress for the past ten years. As yet, there does not appear to be a Congressional Research Service Report on its constitutional issues, although any Member of Congress may request one.