SPEAKERS CONTENTS INSERTS
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29–872 PDF
2006
DISTRICT OF COLUMBIA FAIR AND EQUAL HOUSE VOTING RIGHTS ACT OF 2006
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
ON
H.R. 5388
SEPTEMBER 14, 2006
Serial No. 109–140
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Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL ISSA, California
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
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J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
CHRIS VAN HOLLEN, Maryland
DEBBIE WASSERMAN SCHULTZ, Florida
PHILIP G. KIKO, General Counsel-Chief of Staff
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PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
STEVE KING, Iowa
TOM FEENEY, Florida
JERROLD NADLER, New York
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
CHRIS VAN HOLLEN, Maryland
PAUL B. TAYLOR, Chief Counsel
E. STEWART JEFFRIES, Counsel
HILARY FUNK, Counsel
KIMBERLY BETZ, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member
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C O N T E N T S
SEPTEMBER 14, 2006
OPENING STATEMENT
The Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution
The Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution
The Honorable Eleanor Holmes Norton, a Representative in Congress from the District of Columbia
The Honorable Tom Davis, a Representative in Congress from the State of Virginia
The Honorable Chris Cannon, a Representative in Congress from the State of Utah, and Member, Committee on the Judiciary
The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Member, Subcommittee on the Constitution
The Honorable Steve King, a Representative in Congress from the State of Iowa, and Member, Subcommittee on the Constitution
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The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Member, Subcommittee on the Constitution
The Honorable Melvin L, Watt, a Representative in Congress from the State of North Carolina, and Member, Subcommittee on the Constitution
The Honorable Chris Van Hollen, a Representative in Congress from the State of Maryland, and Member, Subcommittee on the Constitution
WITNESSES
The Honorable Jon M. Huntsman, Jr., Governor of Utah
Oral Testimony
Prepared Statement
Dr. John Fortier, Research Fellow, American Enterprise Institute
Oral Testimony
Prepared Statement
Mr. Adam H. Charnes, Attorney, Kilpatrick Stockton LLP
Oral Testimony
Prepared Statement
Mr. Jonathan Turley, J.B. & Maurice C. Shapiro Professor of Public Interest Law, The George Washington University Law School
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Oral Testimony
Prepared Statement
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution
Prepared Statement of the Honorable Sheila Jackson Lee, a Representative in Congress from the State of Texas
Letter from Greg J. Curtis, Speaker of the House, and Josh L. Valentine, President of the Senate, Utah Legislature, to Chairman F. James Sensenbrenner, Jr. in support of H.R. 5388, September 13, 2006
Testimony of Anthony A. Williams, Mayor, District of Columbia
Statement of the District of Columbia Affairs Section of the District of Columbia Bar
Statement of Charles Orndorff, the Conservative Caucus, Inc.
Statement of the American Bar Association
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Letter from Lawrence H. Mirel, Wiley Rein and Fielding LLP, to Chairman Chabot and Ranking Member Nadler, September 20, 2006
Statement of Lawrence H. Mirel, Wiley Rein and Fielding LLP
Testimony of the DC Statehood Green Party
Latham and Watkins LLP, ''Supplemental Analysis Regarding Possible D.C. Voting Legislation by Representative Thomas M. Davis, III (R-VA),''
Latham and Watkins LLP, ''Analysis Regarding Possible D.C. Voting Legislation by Representative Thomas M. Davis, III (R-VA),''
Memorandum from Congressional Research Service, ''Constitutionality of Congress Creating an At-Large Seat for a Member of Congress''
Letter in support of H.R. 5388 from Robert C. Keithan, Director, Unitarian Universalist Association of Congregations, to Representative Tom Davis, May 18, 2006
Letter in support of H.R. 5388 from Kay J. Maxwell, President, League of Women Voters, to Members of the House Judiciary Committee, May 31, 2006
Letter in support of H.R. 5388 from Marc H. Morial, President and CEO, National Urban League, June 12, 2006
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Letter in support of H.R. 5388 from Robert D. Evans, Director, American Bar Association, to Chairman F. James Sensenbrenner, Jr., June 16, 2006
Letter in support of H.R. 5388 from Dr. Clark Lobenstein, Executive Director, the InterFaith Conference of Metropolitan Washington, to Chairman F. James Sensenbrenner, Jr., June 21, 2006
Letter in support of H.R. 5388 from Joslyn N. Williams, President, Metropolitan Washington Council, AFL-CIO, June 27, 2006
Letter in support of H.R. 5388 from Melvin S. Lipman, President, American Humanist Association, July 14, 2006
Letter regarding H.R. 5388 from Ronald Jackson, Executive Director of D.C. Catholic Conference, and Michael Scott, Coordinator of D.C. Legislative Network, the Archdiocese of Washington, July 20, 2006
Letter in support if H.R. 5388 from Patricia M. Wald to Chairman F. James Sensenbrenner, Jr., July 25. 2006
''Jewish Organizations Support H.R. 5388,'' Letter in Support of H.R. 5388, July 25, 2006
Letter in support of H.R. 5388 from the Leadership Conference of Civil Rights, September 13, 2006
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Memo in support of H.R. 5388 from the Leadership Conference on Civil Rights
Letter in support of H.R. 5388 from Ralph G. Neas, President, and Tanya Clay House, Director of Public Policy, People for the American Way, September 13, 2006
''Reform Jewish Leader Urges Committee to Support Congressional Representation for Washington, D.C. Residents
Letter in support of H.R. 5388 from Rabbi David Saperstein, Director and Counsel, Religious Action Center of Reform Judaism, September 13, 2006
Letter in support of H.R. 5388 from Hilary O. Shelton, Director, National Association for the Advancement of Colored People (NAACP) to Members of the House Commitee on the Judiciary, September 13, 2006
''Interfaith Coalition Supports H.R. 5388,'' Letter in support of H.R. 5388 from a broad coalition of religious organizations, September 13, 2006
Letter in support of H.R. 5388 from Richard T. Foltin, Legislative Director and Counsel, and David Berstein, Executive Director of the Washington Chapter, The American Jewish Committee, September 14, 2006
Letter in support of H.R. 5388 from Chellie Pingree, President and CEO, Common Cause, September 20, 2006
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''Support Democracy in Our Nation's Capital,'' The Coalition to Stop Gun Violence
DISTRICT OF COLUMBIA FAIR AND EQUAL HOUSE VOTING RIGHTS ACT OF 2006
THURSDAY, SEPTEMBER 14, 2006
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:12 p.m., in Room 2141, Rayburn House Office Building, the Honorable Steve Chabot (Chairman of the Subcommittee) presiding.
Mr. CHABOT. The Committee will come to order.
This is the Constitution Subcommittee. I am Steve Chabot, the Chairman of the Committee. We wish everybody a good afternoon, and we welcome you to the House Subcommittee on the Constitution's legislative hearing on H.R. 5388, the ''District of Columbia Fair and Equal House Voting Rights Act of 2006.''
The District of Columbia was created by article I, section 8, clause 17 of the United States Constitution, which provides that ''Congress shall have power to exercise exclusive legislation in all cases whatsoever over such district, as may, by cession of particular states and the acceptance of Congress, become the seat of the government of the United States.''
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The rationale for this provision was set forth by James Madison in Federalist Paper No. 43, in which he wrote, ''The indispensable necessity of complete authority at the seat of Government carries its own evidence with it. It is a power exercised by every legislature of the union, I might say of the world, by virtue of its general supremacy. Without it, the public authority might be insulted and its proceedings interrupted with impunity.''
The emphasis for creating a capital city separate from the control of any State occurred in 1783, when a crowd of Revolutionary War soldiers protested outside the building in Philadelphia in which the Continental Congress was meeting. The Continental Congress requested assistance from the State of Pennsylvania, but that State's government refused to send the militia, forcing the Congress to retreat to New Jersey.
The actual creation of the District of Columbia occurred during the first Congress, when that body accepted the cessions, land, of Maryland and Virginia. From 1780 until the capital officially moved to the District of Columbia in 1800, the residents of the District were able to vote for the representatives and senators of the States from which they had been seated.
Once the District was formally adopted as the seat of Government, however, the residents of the District ceased to have voting representation in Congress. Evidence of the Founders' intent with respect to representational rights of District residents is sparse. Whatever the intent of the Founders, the residents of the District have sought representation for years.
For example, in 1978, Congress passed an amendment to the Constitution that would have given the District of Columbia voting representation in both the House and the Senate. However, that resolution only received the approval of 16 of the 38 States necessary to ratify an amendment to the Constitution, and it expired in 1985.
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District residents also sought to obtain voting representation through the courts. In 2000, the United States District Court for the District of Columbia held that District residents did not have a constitutional right to representation in Congress. The court held that the language of article I, section 2 of the Constitution ''makes clear just how deeply congressional representation is tied to the structure of statehood.''
While acknowledging that the court could not give relief to District residents, the court did urge a political solution to the problem. H.R. 5388 represents one possible political solution.
Introduced by Representative Tom Davis of Virginia on May 16, 2006, the bill has 40 cosponsors, including Delegate Eleanor Holmes Norton, who is with us today. H.R. 5388 would permanently increase the size of the House of Representatives to 437 Members from 435, which it is now, and would give one additional seat to the District of Columbia.
The bill would give the other seat to Utah, which missed out on an additional representative in the House by approximately 800 residents during the 2000 apportionment. The Utah seat would be at-large, meaning that Utah residents would vote both for their geographic representative and for the statewide at-large representative, until the next apportionment prior to 2012 congressional elections.
The bill also contains a non-severability clause, which ensures that if any section of the bill is struck down as unconstitutional, the whole bill will be rendered ineffective.
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Many commentators have noted that H.R. 5388 is a novel solution to what has been a pernicious and vexing problem for Congress for the last 200 years. However, that novelty also leads to new and challenging constitutional questions.
For instance, in granting the District of Columbia a seat in the House of Representatives, the bill potentially puts two sections of the Constitution in conflict. On one hand, supporters of the bill claim that the District Clause gives Congress plenary authority over the District of Columbia, including the power to give it representation in the House of Representatives.
On the other hand, some scholars point to the language of article I, section 2, that the House of Representatives shall be ''chosen by the people of the several states,'' and maintain that the District, as a non-State, cannot be given voting representation merely through exercise of the District Clause.
Similarly, H.R. 5388's grant of an at-large seat to the State of Utah also pits two constitutional principles against each other. Under the Constitution, Congress enjoys wide authority both to apportion the seats of the House of Representatives and to make or alter regulations relating to the times, places and manner of holding elections.
However, the Supreme Court has held that article I, section 2 of the Constitution requires that, ''As nearly as practicable, one man's vote in a congressional election is to be worth as much as another's.''
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The question then arises whether this principle of one person, one vote, is violated by a bill that some might characterize as giving one person two votes, in the State of Utah, for a period of 6 years.
These are complicated and interesting issues, and we are fortunate to have a distinguished panel of experts with us today that can help us to understand the constitutional implications of this legislation.
I also would like to thank the Governor of Utah for appearing before this Subcommittee to explain the importance of the bill to his State, Utah.
Finally, I would note that this legislation is supported by many civil rights groups, including the Leadership Conference on Civil Rights. And we have the distinguished gentleman, Wade Henderson, here with us this afternoon that we worked very closely with during the hearings and legislative consideration of the Voting Rights Act reauthorization, which the President signed into law this July. And Mr. Henderson and many other civil rights leaders were present with us at that ceremony.
And we appreciated your involvement in that, Mr. Henderson.
As always, we look forward to working with our friends in the civil rights community to ensure that all voices are heard in this process.
I also would like to acknowledge the presence of a number of other people. One of those people, who has just entered the room, Mr. Tom Davis, who represents one of the districts in Virginia. And Mr. Davis, as I had mentioned before, is the principal sponsor of this legislation.
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We also have Delegate Eleanor Holmes Norton, who represents, obviously, the District of Columbia and has done so so ably for quite a number of years now.
We also have Chris Cannon here, as well.
I mention these particular Members because they are not Members of this Subcommittee, but are—at least Mr. Davis is a Member of the Judiciary Committee. The other two I mentioned are not—the Judiciary Committee, but not the Subcommittee.
I apologize. Mr. Cannon is a Member of the Judiciary Committee, but not this Subcommittee. And, actually, he is the Chairman of one of the Judiciary Subcommittees, as well.
And I want to reiterate the Committee's policy as it relates to non-Member participation, which is as follows. By unanimous consent, non-Judiciary Committee Members may submit statements for the record. They may also participate in the question-and-answer portion of the hearing and in opening statements, as well, but their time must be yielded by a Subcommittee Member.
Judiciary Committee Members who are not Members of the Subcommittee may also participate under these same rules.
Without objection, the non-Members of the Subcommittee will be permitted to submit statements for the record and they may ask questions, subject to being yielded time by another Member of the Subcommittee, as well.
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And I want to reiterate that this is generally not the Committee's policy to have non-Members sit on the dais. So the events today don't necessarily bind any future actions of the Committee, but welcome them here to the dais this afternoon.
I would also like to recognize several other Members, distinguished people who are here, and not in any particular order. But I guess it is, since we will acknowledge and thank the Mayor of Washington, D.C., Mayor Anthony Williams, for being with us this afternoon and for his service to the community over these years.
We have Councilmember Carol Schwartz here with us, as well; Councilmember Dave Catania—I hope I am pronouncing that correct; Councilmember Adrian Fenty, who prevailed in the Democratic primary for mayor this year, as well.
And congratulations on that.
And we have Shadow Senator Paul Strauss with us this afternoon. We have Mary Cheh, who won the Democratic primary in Ward 3.
And have I failed to recognize any other members of the council? If so, I apologize. Having been a member of Cincinnati City Council myself, I definitely want to recognize others.
I am sorry. Kwame Brown is also here, another Member of Council.
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So we welcome you all here this afternoon and thank you for attending.
At this time, I would recognize the gentleman from New York, Mr. Nadler, who is the Ranking Member, to make an opening statement, if he would like to do so.
Mr. NADLER. Thank you, Mr. Chairman. I am interested to hear that, like the Supreme Court case of Bush v. Gore, our proceedings today have no precedental value.
Mr. Chairman, I want to welcome our distinguished witnesses and also welcome our colleagues who have worked so very hard in the cause of equal voting rights for the citizens of the District of Columbia.
The District is ably represented by our colleague, Eleanor Holmes Norton, who has been a tireless advocate for the citizens of our Nation's Capital. The gentleman from Virginia, Mr. Davis, has likewise taken on this cause and deserves great credit for his work to move this effort forward.
We will hear arguments concerning some of the very difficult legal issues surrounding the approach to D.C. voting rights taken in this bill, as well as questions arising from the portions of this bill pertaining to Utah. I look forward to that testimony.
Some of these legal issues are quite challenging, and we owe it to the citizens of the District and of Utah, as well as the rest of the nation, to get it right.
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But before we get into the technical questions, I want to just reiterate the basic and most important thing at stake here. It is a disgrace, a blot on our nation, that the citizens of our Capital City do not have a voice in Congress.
Whatever technical issues there may be with respect to rectifying this problem, we must never lose sight of the fact that our democracy is permanently stained by the disenfranchised group of citizens who pay taxes, serve in our wars, work in our Government and bear all the responsibilities of citizenship.
Whether you took a cab to work or rode the Metro or bought a cup of coffee or walked on a sidewalk or were protected by a police officer or got a parking ticket or participated in this hearing, your safety, your livelihood, every aspect of your life, including this hearing, was made possible by people who have no vote in our democracy. There is no excuse for that.
If we are to have the audacity to hold ourselves out to the world as a beacon of freedom and democracy, if we want to lecture other countries about the importance of freedom and democracy, as this Congress and the President regularly like to do, we need to clean up our own House and Senate.
So I thank you, Mr. Chairman. I welcome our witnesses and our colleagues, and I look forward to the testimony.
And I yield the balance of my time to the gentlelady from the District of Columbia.
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Ms. NORTON. I thank the gentleman for his kindness in yielding.
I certainly wanted time to thank Chairman Sensenbrenner and Chairman Chabot for their courtesies, especially you, Mr. Chabot, for presiding at this hearing and for your work to prepare us.
I would like to certainly thank all of the witnesses who have come forward. You are going to be very helpful to us.
I want to especially thank Governor Huntsman, who had to come further than most of us, for coming all the way from Utah.
I would be remiss, Mr. Chairman, if I did not thank you for your work on the recently reauthorized Voting Rights Act. And if I didn't tell you how much that work means on its own for the District of Columbia, I need to tell you, sir, that the residents of the District of Columbia identify with your work on the Voting Rights Act and see a direct link between that work and the denial of voting rights for 200 years.
For the people who live here, this is a district that is two-thirds African-American, but of every background, we have been denied the right to vote.
I want to acknowledge the presence of the godmother of the civil rights movement, who, with John Lewis, the only two who are living, and who designed the work that led to march on Washington and the civil rights statutes.
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We hope for a bipartisan solution, the same solution that Chairman Davis and I have spent 4 years in crafting.
And I thank you for all your courtesies.
Mr. CHABOT. Does the gentleman yield back? The gentleman actually has a little more time.
Mr. NADLER. Yes, I yield back.
Mr. CHABOT. Okay, the gentleman yields back.
The gentleman from Arizona, a Member of the Committee, Mr. Franks, is recognized for 5 minutes.
Mr. FRANKS. Thank you, Mr. Chairman. I would like to yield 2 1/2 minutes to Mr. Davis, please.
Mr. DAVIS. I thank my friend for yielding.
I think the bill before this Subcommittee is unique and a creative legislative solution, which provides a win-win opportunity to the Congress. I hope the Subcommittee will consider this with an open mind.
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For 205 years, the citizens of the District have been denied the right to elect their own fully empowered representative to the nation's legislature. This historical anomaly has happened for a number of reasons: inattention, misunderstanding, a lack of political opportunity, and a lack of will to compromise to achieve the greater good.
I have long stated it is simply wrong for the District to have no directly elected national representation. Let's be real. How can you argue with a straight face that the Nation's Capital shouldn't have some direct congressional representation? For more than two centuries, D.C. residents have fought in 10 wars, have paid billions of dollars in Federal Taxes. They have sacrificed and shed blood to help bring democratic freedoms to people in distant lands.
Today, American men and women are fighting for democracy in Baghdad, and here in the Nation's Capital, residents lack the most basic democratic right of all.
What possible purpose does this denial of rights serve? It doesn't make the Federal district stronger. It doesn't reinforce or reaffirm congressional authority over D.C. affairs. In fact, it undermines it and offers political ammunition to tyrants around the world to fire our way.
In spite of my concerns, I was long frustrated by the lack of any politically acceptable solution to this problem. That all changed after the 2000 census, when Utah missed picking up a new seat by less than a thousand people.
Utah, as you know, contested this apportionment and lost in court. As I looked at the situation, I realized the predominance of Republicans in Utah and Democrats in the District and thought we might be able to fit them together.
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The D.C. Fair Act would permanently increase the size of Congress by two Members. The plan is intended to be partisan-neutral. It takes political concerns off the table, or at least it should.
After answering the political question, we moved on to address whether Congress, independent of a constitutional amendment, had the authority to give the District a voting Member. Through hearing testimony and expert opinions, we have established, by clear authority of Congress, to direct the political affairs of the District.
As Ken Starr, a former appeals court judge here in the District, stood before my Committee, the authority of the Congress, he said, is awesome with respect to the District.
We have also received the expert opinion of Viet Dinh, a Georgetown law professor and former Assistant Attorney General, asserting the power of Congress.
Some legal scholars will disagree, but the courts have never struck down a congressional exercise of the District Clause. There is no reason to think the court would act differently in this case.
It is now essentially a matter of political will as to whether D.C. receives a voting Member of Congress or not.
And today I received a letter from our former colleague, J.C. Watts, offering his support. ''Your proposed legislation does a great job of balancing the achievable with the desirable,'' he wrote.
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The District is a wholly unique political entity. It isn't a State; it isn't a territory. States and territories have unique constitutional status, but so does the District. The District was formed to create a seat of Government, where the Federal Government could exist without interference from any one State. In a real sense, the District exists to create a safe place for democracy.
I want to thank Eleanor Holmes Norton, Mayor Williams, the council, who have come a long way from the control board days, for their interest in this legislation, and my Ranking Member, Henry Waxman, for bringing this, and to you, Mr. Chairman, and to Chairman Sensenbrenner, for making this hearing possible today.
Mr. CHABOT. Thank you very much. The gentleman yields back to the gentleman from Arizona.
Mr. FRANKS. Mr. Chairman, I would like to yield the remainder of my time to Mr. Cannon, please.
Mr. CANNON. I thank the gentleman from Arizona.
And, Mr. Chairman, thank you for holding this hearing.
I would like to first associate myself with the comments made by the gentleman from Virginia, and also I would very much like to thank him for his leadership and work on this issue.
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I would also like to thank the delegate from the District of Columbia, Ms. Holmes Norton, for her work on this issue.
As Mr. Davis said and, by the way, as Mr. Nadler said, as he was making his point—I would associate myself with his comment—that it is unconscionable that we have people who fight and die and live and serve in America without being able to vote.
And so, as Mr. Davis pointed out, it is a matter now of political will. I think, having polled many of my Republican colleagues, that the Republicans have the will to do this. I think, also, the Democrats have the will to do it. And so I think this is a good day for America.
I would also like to thank my governor for taking the time to come here today. This is a mark of how important this issue is Utah. I have literally known the Governor his whole life and almost all of my life. His gray hair notwithstanding, I am a little bit older, but he is a good friend and understands this issue and understands the importance of this issue.
So I appreciate your being here, Mr. Governor.
I have taken the position that this bill is good as it is. It currently contains an at-large provision. That makes my life easier, frankly. That means I don't have to run for re-election, and Rob Bishop's and Jim Matheson's lives, as well.
But I have also said that the important thing here is to actually have a new district in Utah and the voting rights in the District of Columbia. And so I am looking very much forward today to the insights and information we are going to get from this panel as to what is appropriate as we frame this issue for final passage on the floor.
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And I would just reiterate again in closing, before I yield back, how pleased I am to see that this issue has come to fruition, that the political will is here and that people in the District will actually have a vote.
I have always thought this is an abomination that they did not, a historical anomaly that we can correct now. And it is also appropriate for Utah to have, as the next State that would get a seat, to have that additional seat.
So I want to thank you, Mr. Chairman, again, for holding this hearing, and yield back the balance of any time that Mr. Franks has yielded to me.
Mr. CHABOT. The time has long since expired. So thank you very much. The gentleman's time has expired.
We have been joined by several additional persons who we want to recognize this afternoon. We have another Member of Council, Vincent Gray, who just won the Democratic primary for D.C. Council Chairman and is also currently a Member of Council.
We have been joined by Nancy Zirkin, also with the Leadership Conference on Civil Rights; Hilary Shelton, who is the head of the D.C. NAACP chapter.
And we are so pleased to be joined by Ms. Dorothy Hite. For nearly half a century, Dorothy Hite has given leadership to the struggle for equality and human rights for all people. Her life exemplifies her passionate commitment for a just society and her vision of a better world.
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And we welcome you here this afternoon, Ms. Hite.
I would, at this time, like to recognize the distinguished gentleman from Michigan, who is the Ranking Member of the Full Judiciary Committee. The gentleman from Michigan, Mr. Conyers, is recognized.
Mr. CONYERS. Thank you so much, Chairman Chabot.
I only wish that we could get the photograph of everybody in this room right now, because this is a most historic and distinguished coming together of experts, Government officials, lovers of democracy, the witnesses, everybody.
And I have got a picture, a jazz picture, where they number everybody in the room and then you identify, ''Gosh, I didn't know he was here or she was there,'' because we are at a historic moment.
And for Chairman Chabot and to Jerry Nadler and Bobby Scott, Mel Watt, all of you here, here we are back in the Subcommittee on the Constitution of the United States House of Representatives Judiciary Committee. This is exactly where we were several months ago when the Voter Rights Act extension of 1965 was taken up and worked on and deliberated.
And there were as many imponderables, as much difficulty, as many constitutional questions as there are surrounding the discussion that will shortly take place here. We are up to it. We can handle it. We have done it before in this Subcommittee, and we will be doing it again, with your help.
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I go back a little ways in this, too, because I remember the late Joe Rawl, and what a wonderful spirit it is to have him watching over us. And Walter Fauntroy, for almost 20 years, who worked on this subject before us.
There have been many that have sewn the seeds and laid the path that bring us right here where we are today. The Constitution gives the Congress the authority to rectify the issues.
We will be in the courts, we know, but that doesn't bother anybody that I know within these walls today. But on the heels of the Voting Rights Act reauthorization, we must now address this longstanding voter inequity that we all know too much about already.
The Congress, in a bipartisan spirit, has to work to protect the rights of the citizens of this great Capital City.
And, Congressman, Chairman Chabot, your work on the Voting Rights Act distinguishes and gives you the complete authority to move and lead and guide us to where we have to go from here, from this historic meeting that brings us all here today. And I thank you so much.
Mr. CHABOT. Thank you very much, Mr. Conyers.
The gentleman from Iowa, Mr. King, is recognized.
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Mr. KING. Thank you, Mr. Chairman.
And I am looking forward to the testimony on the part of the witnesses, and I am going to keep my remarks very short in order to help expedite this process, because I can see by the crowd here that there is a lot of intensity on this, and I really want to hear from the witnesses.
I will say that I have a perspective that I would like to just inject into the thought process as this discussion moves forward. And that is, I happen to have a profound conviction that American citizens should be represented in the reapportionment process in America.
And as I listened to the injustice described by Mr. Davis, I reflect upon the nine to 11 congressional seats that would be differently distributed across America if we counted citizens for our census as opposed to homosapiens.
In other words, we have millions of illegals that are represented in the United States Congress, whether they can vote or not, because they are counted for redistricting purposes. And I believe that is a consideration we could keep in mind as we correct the injustices.
But I just make that point, and I open my ears and yield back the microphone to hear the testimony of the witnesses.
Thank you.
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Mr. CHABOT. Thank you. The gentleman yields back.
The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes.
Mr. SCOTT. Thank you, Mr. Chairman. I, too, would just make a very brief comment so that we can get to the witnesses.
Fighting for freedom abroad, when citizens right here in Washington, D.C., suffer without voting representation in Congress, no reasonable understanding of democracy can tolerate this denial of representation.
So I look forward to working with the Committee Members to remedy this injustice. And we should proceed as expeditiously as we can and not let the details of whatever happens in Utah slow us up. We need to move as expeditiously as we possibly can to remedy this ongoing injustice.
Thank you, Mr. Chairman. I yield back.
Mr. CHABOT. Thank you very much. The gentleman yields back.
The gentleman from Florida, Mr. Feeney, is recognized.
Okay, we are back to the gentleman from North Carolina. Mr. Watt is recognized.
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Mr. WATT. Thank you, Mr. Chairman. I thank you for having the hearing, and I will yield back the balance of my time in the interest of hearing the witnesses at some point.
Mr. CHABOT. Thank you very much.
The gentleman from Maryland, Mr. Van Hollen, is recognized.
Mr. VAN HOLLEN. I thank you, Mr. Chairman. Thank you for holding this hearing and moving forward on this legislation.
As the representative of the congressional district that borders right on the District of Columbia, I want to just say how much I hope that we will move this forward so we can get to the entire process quickly.
It is absolutely unfair and unjust that one of my constituents on the Maryland side of the D.C. boundary is able to elect a Representative who can vote in Congress and the person right across the street from my congressional district does not have the ability to elect a Representative who can vote in Congress. That is wrong. We need to correct that.
I want to thank my colleague, Representative Eleanor Holmes Norton, for her long efforts and her long championship of trying to get this through the Congress, not this bill, but other bills that she has pushed forward on this issue. She has been sort of indefatigable and a champion here, and it has been a pleasure to try and work with her on those issues.
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I want to congratulate Mayor Williams for his incredible service.
And it is great to see you and all the Members of the Council.
To you, Mr. Fenty, congratulations on your recent victory.
And let me just close with this. I want to congratulate Congressman Tom Davis from Virginia. I also have the privilege of serving on the Government Reform Committee that he chairs. And he has really spent a lot of time and effort to craft this compromise.
My view is that we should have voting rights for the District of Columbia as a matter of principle. And there have been legislations to do it. I mean, as a matter of principle, the residents of this great city should have voting rights. But I understand the art of the possible. And I want to congratulate Congressman Davis for taking the lead on this issue and crafting this piece of legislation.
And I would only say, to all of us on this Committee and the Judiciary Committee, this is a piece of legislation that has been much debated in this Congress. It has been much considered in the Government Reform Committee. It is a very delicate balance and compromise, and I would urge my colleagues to not tamper with what I think is a very well put-together proposal that stands on its own.
I know we are going to hear testimony on various issues today, but I would just stress the fact that Mr. Davis has worked for many years for us to get to this point, and I hope we don't blow it.
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Thank you, Mr. Chairman.
Mr. CHABOT. Thank you. The gentleman yields back.
Without objection, all Members will have 5 legislative days to submit additional materials for the hearing record.
Mr. CHABOT. And I would like to now introduce formally our distinguished panel here this afternoon.
Our first witness is Governor Jon M. Huntsman, Jr., of the State of Utah.
Mr. Cannon, was there anything else you wanted to say prior to me introducing the governor here?
Mr. CANNON. Let me just reiterate what a great governor Utah has.
Mr. CHABOT. Okay, thank you, excellent.
Governor Huntsman was elected to his position in 2004, where he represents the 2.5 million residents of Utah that would enjoy a new Representative under H.R. 5388.
As Governor Huntsman will testify, the issue of obtaining an additional Representative has been extremely important to his State, to the point that they litigated the issue all the way up to the United States Supreme Court.
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We welcome you here this afternoon, Governor.
Our second witness is Dr. John C. Fortier, who is a research fellow at the American Enterprise Institute, where he focuses his studies on American Government. Dr. Fortier received his bachelor's degree from Georgetown University and earned his doctorate from Boston College.
We welcome you here this afternoon, Doctor.
Our third witness is Adam Charnes, who is a partner at the law firm of Kilpatrick Stockton, LLP, in Winston-Salem, North Carolina. Prior to that, Mr. Charnes served as Deputy Assistant Attorney General in the office of legal policy at the Department of Justice. He received his bachelor's degree from Princeton University and his law degree from Harvard Law School.
We welcome you this afternoon, Mr. Charnes.
Our fourth and final witness is Professor Jonathan Turley, of the George Washington University Law School. Professor Turley is a nationally recognized legal commentator and constitutional scholar. He is a graduate of the University of Chicago and Northwestern University School of Law.
And we welcome you here this afternoon, Dr. Turley.
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Before we get started with our testimony this afternoon, I just want to reiterate the rules that we have in the Committee. Most of you are probably familiar with the 5-minute rule.
We have a lighting system on there. Each of you will be given 5 minutes. We would ask you to stay within that time. The green light will be on for 4 minutes. A yellow light will come on to let you know you have a minute to wrap up. And the red light will come on, and we would ask you to please try to complete your testimony by that time or very close to the light coming on.
They are kind of small, so it is a little hard to see them. We used to have big lights. That was old technology. It was real easy to see. And now we have got these modern, small lights that you can't see. What the reasoning for that was is beyond me.
But those are basically the rules within which we would ask you to follow.
It is also the practice of this Committee to swear in all witnesses appearing before us. So if you would, if you would all four please stand and raise your right hand.
[Witnesses sworn.]
Mr. CHABOT. All witnesses have indicated in the affirmative.
We, again, thank you for your attendance and your testimony here this afternoon.
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Governor, we will begin with you. And you will need to probably pull the mike a little closer and turn it on there. Thank you.
TESTIMONY OF THE HONORABLE JON M. HUNTSMAN, JR., GOVERNOR OF UTAH
Governor HUNTSMAN. Thank you, Mr. Chairman and distinguished Members of this Committee. It is an honor and privilege to be with you, along with Ms. Dorothy Hite, who I am honored to be with, as well, and want to thank her for her commitment to equality and civil rights during her career.
I will confine my testimony to a brief discussion of why I believe this legislation will not only benefit the State of Utah, but will simultaneously promote democratic values inherent in our constitutional system.
As I understand, H.R. 5388 takes a unique approach to a problem that has remained unresolved for most of our nation's history. If enacted, this legislation would increase the size of the House by two votes, giving one to the District, the other to Utah, the State that should have received an additional seat in the wake of the 2000 census.
When I say that Utah should have received the additional seat following the 2000 census, I am referring to two separate errors committed by the Census Bureau in 2000, each of which improperly deprived our State of a fourth seat.
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The first such error involved the bureau's use of a statistical procedure known as hot deck imputation, which I believe violated the spirit, if not the letter, of the Census Act.
The second error involved the bureau's decision to count Federal employees residing temporarily overseas, while arbitrarily refusing to count other similarly situated Americans living outside the United States.
Although this bill does not address either of those errors directly, it addresses both of them indirectly by awarding Utah the seat that it should have received in 2002. The loss of that seat has cost Utah in many ways over the last 6 years.
In spite of the fact that we are large enough to merit a fourth Member of Congress, the State has been spread thin, with only three Members to represent the State's ever-growing population. That extra Member would have been able to serve on other House Committees and begin the process of gaining seniority and influence within the House.
Following 2000, the Census Bureau certified our State's apportionment population to be roughly 2.2 million, which today has grown well beyond 2.5 million. Obviously, the citizens of the State would be better served if each Member only had to serve 559,000, as opposed to 850,000.
Last December, the Census Bureau reported that Utah was the fifth fastest growing State in the union. The estimate stated that Utah grew by 2 percent from July of 2004 to July of 2005.
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This sort of continued growth represents a State with a very challenging matrix of problems. Schools, transportation infrastructure, social services, emergency services can become a stress on a very rapidly growing State. In each of these areas, having a fourth Member of Congress would greatly aid the State in delivering its message to the Federal Government here in Washington.
Now, I welcome the fact that, if the legislation passes, Utah's new seat would be elected on an at-large basis until 2012, when congressional redistricting would automatically take place based on population figures from the 2010 census.
However, our objective, first and foremost, is to get a fourth district seat, even if that included early redistricting.
In short, H.R. 5388 rights the wrongs that were committed in the 2000 census, benefits those who suffered most as a result of those wrongs, and does so in a way that makes sense.
I also want to add this point. I have not extensively studied the constitutionality of the D.C. House Voting Rights Act, but I am impressed and persuaded by the scholarship represented in this legislation.
The people of Utah have expressed outrage over the loss of one congressional seat for the last 6 years. I share their outrage. I can't imagine what it must be like for American citizens to have no representation at all for over 200 years.
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As a former trade negotiator, as an elected official, I recognize a finely balanced deal when I see one. Congress should try to address this problem in a fair and reasonable way. It is just the right thing to do.
And in conclusion, let me thank all of you on both sides of the aisle who have worked so diligently to bring us to where we are today.
Thank you, Mr. Chairman.
[The prepared statement of Governor Huntsman follows:]
PREPARED STATEMENT OF THE HONORABLE JON M. HUNTSMAN, JR.
Good afternoon Mr. Chairman and distinguished Committee members. Thank you for requesting that I testify today on H.R. 5388, the District of Columbia Fair and Equal Voting Rights Act of 2006. I will confine my testimony to a brief discussion of why I believe this legislation would not only benefit the State of Utah, but would simultaneously promote democratic values inherent in our constitutional system. As I understand it, H.R. 5388 takes a unique approach to a problem that has remained unresolved for most of our nation's history. If enacted, this legislation would increase the size of the House by two seats, giving one to D.C. and the other to Utah, the State that should have received an additional seat in the wake of the 2000 census.
When I say that Utah ''should have received'' the additional seat following the 2000 census, I am referring to two separate errors committed by the Census Bureau in 2000, each of which improperly deprived our State of a fourth seat. The first such error involved the Bureau's use of a statistical procedure known as ''hot-deck imputation,'' which I believe violated the spirit, if not the letter, of the Census Act. See 13 U.S.C. §195 (prohibiting ''the use of the statistical method known as 'sampling' in carrying out the provisions of this title''); but see Utah v. Evans, 536 U.S. 452, 473 (2002) (holding that ''the statutory phrase 'the statistical method known as sampling' does not cover the [Census] Bureau's use of imputation''); see also id. at 480 (O'Connor, J., dissenting) (''I would find that the Bureau's use of imputation constituted a form of sampling and thus was prohibited by §195 of the Census Act.''). The second error involved the Bureau's decision to count federal employees residing temporarily overseas, while arbitrarily refusing to count other, similarly situated Americans living outside the United States.(see footnote 1)
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Although this bill does not address either of those errors directly, it addresses both of them indirectly by awarding Utah the seat that it should have received in 2002.
I welcome the fact that, if the legislation passes, Utah's new seat would be elected on an at-large basis (rather than from a specific district) until 2012, when congressional redistricting will automatically take place based on population figures from the 2010 census. I consider that a significant benefit because redistricting—which is always a difficult, time-consuming, and politically costly process—would be especially undesirable at this point in time, less than four years before the next decennial census.
In short, H.R. 5388 rights the wrongs that were committed in the 2000 census, benefits those who suffered most as a result of those wrongs, and does so in a way that makes sense.
Thank you for this opportunity to testify. The State of Utah and its 2.5 million residents deserve and welcome the chance to have an additional seat in the House of Representatives.
Mr. CHABOT. Thank you very much, Governor.
Dr. Fortier, you are recognized for 5 minutes.
TESTIMONY OF JOHN FORTIER, RESEARCH FELLOW, AMERICAN ENTERPRISE INSTITUTE
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Mr. FORTIER. Thank you, Chairman Chabot and Ranking Member Nadler and Members of the House Judiciary Subcommittee, for inviting me to testify on a very important issue of representation in Congress for the District of Columbia.
In particular, we are discussing the District of Columbia Fair and Equal House Voting Rights Act of 2006, which has been ably described by several Members of the Committee.
I wrote a column in The Hill newspaper, my weekly column, on this bill back in the spring, and I called it ''Much Needed, Ingenious, and Blatantly Unconstitutional.'' While I meant that to be provocative, I stand by all three of those statements.
I think, first of all, the bill is much needed. Representation for the District is much needed. It is a great injustice that over half a million citizens living in the shadow of the Capitol are not represented by full voting Representatives and by Senators. So the aim of the bill is just right.
Second, the bill is ingenious or it is politically savvy, in a way that has been described up here. We have political concerns of Republicans and Democrats which have been finely balanced.
And on this score, I don't believe that Congress has overstepped its bounds by expanding the House or by creating the at-large district. I would agree with the remarks of Governor Huntsman.
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But at the end of the day, I do not believe that this approach is constitutional. And this, unfortunately, means that we are left with several ways to give representation to the District, but all of them are very difficult, difficult to achieve.
Congress could admit the District as a State. Congress could, with the consent of Maryland and the District, retrocede the District to Maryland, as was done in Virginia in the 19th century, or we could amend the Constitution. Difficult options, all of them, but I believe the only three alternatives to get to a just end.
So why do I believe that H.R. 5388 is unconstitutional? For one simple reason: Congress does not get to decide what bodies are represented in the House and the Senate. It is the Constitution that decides that, and the Constitution has decided that.
Over and over in the Constitution, it is clear that only States may have Representatives in the House and the Senate. The textual references are many, but the first is the most obvious. The House of Representatives shall be composed of Members chosen every second year by the people of the several States.
Each State is also guaranteed a Representative. The franchise in each State must be equal to that of the State's most popular part of their State legislature.
And even in one instance, the Constitution prescribes that the House should vote by State. That is, in the case of the Electoral College, if there is no majority, a pick of the President of the Electoral College, it goes to the House, and the House votes by State and the quorum is determined by State.
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Again, no reference to other bodies being represented in Congress, no territories, no other entities. It is States that are represented and the people of the States in the Constitution.
The proponents of the approach in the bill before us today rely heavily on the Seat of Government Clause, a clause that gives Congress great power of the District. But, in fact, this provision should best be understood as the power to govern the District, as a State would govern its own territory.
What is being done to it is it is being stretched to override other constitutional provisions in the name of the welfare of the District, and here is where I think the interpretation of that clause goes wrong.
If we were to accept this power, which is broad, but accept it, as the proponents would argue, Congress could give representation to the Senate by simple legislation. They could have granted voting in the presidential election, as was done in the 23rd amendment, by simple legislation and not by constitutional amendment.
It would not be bound at all by proportionality. It could grant the District two Representatives or 10 or 436 Representatives. And if you doubt that power, you look at the bill itself. As part of the delicate compromise, the bill limits the District to one Representative, no matter what population has. If the District grows substantially, it still only gets one Representative in the bill before us.
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And then if Congress can create the Representative, it can also take that Representative away by legislation. Imagine having a Representative for the District of Columbia and a tough votes comes by and then Congress decides to punish the District and the Representative by withdrawing that seat, again, by simple legislation.
For all these reasons, I think the more legitimate methods, the more difficult methods are the way to go in giving representation to the District in Congress.
Finally, I will add that the Territories Clause would be analogous to the Seat of Government Clause that we rely on here. If Congress may do so for the District, they may do so also for the territories, and the territories vary widely in size. We could give a Representative to small islands with a population of a couple hundred people or larger territories with certainly much less than a traditional congressional district.
So the unfortunate conclusion of my testimony is that, while the aim of the legislation is just, we have other courses of action that we are going to have to take because they are legitimate constitutional options.
Thank you, Mr. Chairman.
[The prepared statement of Dr. Fortier follows:]
PREPARED STATEMENT OF JOHN FORTIER
Thank you Mr. Chairman, Mr. Ranking Member, and members of the subcommittee for inviting me to testify on the important subject of voting rights for residents of the District of Columbia.
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The purpose of this hearing is to explore H.R. 5388 the ''District of Columbia Fair and Equal House Voting Rights Act of 2006'' which creates a House seat for the District of Columbia.
H.R. 5388 would increase the size of the House to 437 members. It treats the District of Columbia as a district that will be represented in the House. It also calls for a second new district to be located in Utah, as Utah narrowly missed out on a seat in the last re-apportionment. That Utah district would be an at-large district, and the three current Utah districts would remain intact. After the next reapportionment, the District of Columbia would still be considered a district with a representative, and the remaining 436 seats would be apportioned among the states based on the current method of apportionment.
I wrote my weekly column in the Hill on this bill last spring, which I described somewhat facetiously as ''much-needed, ingenious, and blatantly unconstitutional.''(see footnote 2) I say somewhat facetiously because even though the sentence had a provocative tone, I believe all three of these descriptions of H.R. 5388 are true. First, a proposal to grant the citizens of the District the right to vote for congressional representatives is much needed. It is an injustice that for over two hundred years District residents have not had congressional representation. Second, H.R. 5388 is ingenious in the way it balances the partisan concerns of Republicans and Democrats that arise over such an issue. Third, as much as I agree with the aim of the legislation and admire the political savvy of its authors, H.R. 5388 is not the answer to the District's problems. The central premise that Congress can by simple legislation create a representative for the District is wrong. The Constitution, not Congress, has determined that the House and Senate will be made up of representatives of states and states alone. Congress can no more change the Constitution on this matter by simple legislation than it could repeal the first amendment or allow sixteen year olds to serve as president.'
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The unfortunate conclusion of my remarks is that because H.R. 5388 is not constitutional, the road to representation for DC residents is difficult. There are three legitimate ways to accomplish this end: (1) to admit the District as a state into the United States; (2) to ''retrocede'' the District to Maryland; (3) to amend the constitution to allow DC to retain its current status but also grant it representation in Congress. All are legitimate means to a just end, but all would face significant political opposition.
IT IS AN INJUSTICE THAT DC RESIDENTS ARE NOT REPRESENTED IN THE HOUSE AND SENATE
The District of Columbia has over 500,000 residents. Only in the past forty years have they been entitled to vote in presidential elections. They have no full voting representatives in either the House or the Senate.
While residents of U.S. territories also have no voting representation in Congress, the case of the District is even more compelling. The seat of government has been here since 1800, but DC has all the while been unrepresented in Congress and has watched as many territories have become states and now enjoy representation in Congress. The District is integrally connected to the U.S., not separated by ocean or language from the fifty states.
One should not quarrel with the message on the District's license plate, ''taxation without representation.'' The message is essentially correct.
THE INGENUITY AND POLITICAL SAVVY OF THE DAVIS/NORTON PROPOSAL (H.R. 5388)
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The Davis/Norton proposal tries to address the partisan political concerns of Democrats and Republicans over the issue of DC representation. In all likelihood, the District would elect a Democratic representative. To balance this, the proposal adds an additional representative to Utah, which barely missed out on a fourth representative last re-apportionment. At least until the next apportionment, one of the two new seats created would likely be represented by a Republican and one by a Democrat. The bill also provides that the new Utah representative would be elected at-large and that the existing districts in Utah will remain the same until the next apportionment and redistricting. This was again done to delicately balance political concerns, as Utah Democrats worried that a new redistricting might adversely affect the district lines of Utah's sole Democratic Representative.
While this arrangement is unusual, I see no constitutional objection to it. Congress may increase the size of the House to 437 by simple legislation. The at-large district is temporary. And it is well within Congress's power to regulate the time, place and manner of elections and therefore to prescribe such an at large district. Congress has previously weighed in legislatively to require that states employ single member districts, but it is within Congress's power to alter that judgment overall by allowing or even requiring at large districts. It may also carve out a specific exception to its general rule requiring states to create single member districts as H.R. 5388 proposes to do.
Overall, the provisions of H.R. 5388 that increase the size of the House and the creation of an at-large district are well thought out and constitutionally unobjectionable.
WHY H.R. 5388 IS UNCONSTITUTIONAL
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The Constitution clearly indicates that Congress shall be composed of representatives from states and states alone. Congress itself does not determine the makeup of Congress, it is the Constitution that makes that determination. Of course, Congress would play an important role in the admission of states, in the retrocession of the District to the state of Maryland, and in the constitutional amendment process. But through the normal legislative process, Congress cannot get around the Constitution's clear language that both the House and the Senate are composed of representatives from states and states alone.
The textual evidence in the Constitution that the people of states are to be represented in the House and Senate is extensive:
''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.''
''No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.''
''each state shall have at least one Representative''
''When vacancies happen in the Representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies.'' [Article I, Sec.2, (my emphasis)]
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There are many similar references to states in Article I, section 3 of the original Constitution which describes how state legislatures were to choose senators. The seventeenth amendment which was ratified in the early twentieth century and which provided for a popular vote for senators also indicates that it is the people in the states who are to be represented in the Senate:
''The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.''
''When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.'' [Amendment XVII (my emphasis)]
The Constitution also provides that states will have the power to regulate elections, although Congress may alter those regulations:
''The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.'' [Article I, section 4 (my emphasis)]
Finally, the Constitution prescribes an instance when the votes in Congress will be counted by state delegation rather than by individual members. If no presidential candidate receives a majority of the votes of the presidential electors, the House is called upon to choose the president from among the top three candidates. Under these circumstances, a quorum shall be representatives from two thirds of the states, not of the members themselves. And the vote to select a president shall require a majority of state delegations:
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''if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.'' [Amendment XII (my emphasis)]
The textual evidence that Members of the House and Senators shall be representatives of people in states is overwhelming. It is not described by a throwaway or ambiguous line in the Constitution, but pervades the whole text. The framers of the original Constitution and of later amendments were crystal clear that representation in Congress was for people in states. They knew of the case of territories (The Northwest Territory was in existence prior to the ratification of the Constitution) and made provisions for Congress to administer them. They included constitutional provisions for the creation and governance of a district for the seat of government, but they never provided for representation in Congress for territories or the seat of government.
SELECTED HISTORY OF ATTEMPTS TO GIVE REPRESENTATION TO THE DISTRICT
Numerous efforts have been made to give representation to the District of Columbia.
In two prominent cases, proponents of these efforts sought to amend the constitution, but did not pursue a simple legislative strategy that is urged by H.R. 5388.
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The enactment of the 23rd amendment gave District residents the right to participate in presidential election. Using the logic that is behind H.R. 5388, Congress could have achieved the same result by legislation, using the Seat of Government Clause as a justification for passing a simple piece of legislation to grant DC residents the vote in presidential elections. If such an option were legitimate, why would the proponents of the 23rd amendment have spent the significant time and energy needed to secure 2/3 votes in both houses of Congress and spent nearly a year seeking ratification in three quarters of the states?
Similarly, a major effort to grant DC residents the right to vote in congressional elections was proposed in the form of a constitutional amendment that passed both houses of Congress in 1978. Proponents of this measure then pursued the matter in state legislatures but failed to secure ratification in three quarters of the states. After seven years had elapsed, as the amendment prescribed, the ratification failed. Again, why would the proponents of representation for DC have used such a long, arduous, and ultimately unsuccessful process if the whole matter could be resolved by simple legislation?
In addition to these two efforts to amend the Constitution to give representation to the District, consider also the attempt in the 103rd Congress to give delegates from the District and territories the right to vote in committee and in the committee of the whole. The House changed its rules to this effect. Why would the proponents of representation for DC and the territories have sought only these changes? Why would they have not proposed full voting privileges for delegates, making them essentially equal in status to representatives from states?
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The answer is given in part by Michel v. Anderson.(see footnote 3) When some members of Congress sued claiming these rules changes went too far, the DC Circuit Court affirmed the change in rules, but noted that it passed constitutional muster because it did not give the essential qualities of representatives to delegates. In a nutshell, it was acceptable to allow delegates to participate in all the deliberations and secondary votes in committees including the committee of the whole as long as their votes would not be decisive on votes on the final passage of bills.
In short, proponents of representation for DC have worked long and hard to pass constitutional amendments or have settled for less than full privileges for delegates because they did not believe that a simple legislative solution was legitimate.
THE SEAT OF GOVERNMENT CLAUSE
The proponents of granting the District representation by simple legislation rest much of their case on the clause in Article I that grants Congress the power to control the affairs of the District.
''Congress shall have 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.'' [Article I, sec. 8]
Clearly, the power granted to Congress over the District is broad in scope. But this power is best understood as the power to govern the affairs of the District as a state government would govern over its territory. Congress has even somewhat greater power over the District than a state government has over its territory, as it is not subject to some of the restrictions the Constitution places on states. For example, Congress could coin money for the District, if it deemed that course of action wise, as the Constitution prevents states from coining money, but does not impose a similar restriction on the governance of the District.
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But what cannot be done under the Seat of Government clause is to grant the District powers that override other constitutional language. The Seat of Government Clause cannot be an excuse to use simple legislation to amend the constitution through the back door.
This is, however, what proponents of the Davis/Norton approach propose to do. They describe the Seat of Government Clause as ''majestic in scope.''(see footnote 4) It is described in such grandiose terms that Congress might use the Seat of Government Clause for any end as long as it relates o the welfare of the District's residents.
If this power is as broad as proponents suggest, then Congress could have granted District residents the right to participate in the election of a president by simple legislation rather than through the 23rd amendment. Under this broad interpretation Congress could give the District representation in the Senate.
Again under this interpretation of the Seat of Government Clause, there is no reason why Congress would be limited to providing representation to the District that is proportional to its population. While states would be subject to apportionment for their representatives, Congress could give the District two representatives, or ten, or four hundred thirty six. In fact, the H.R. 5388 deviates from proportionality by mandating that the District will never have more than one representative in the House no matter how large its population grows.
Similarly, there is no reason why such a broad power would be limited by constitutional provisions that give two senators to each state; Congress might grant the District as many senators as it saw fit. Congress might eliminate age or citizenship requirements for District representatives.
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Under such a broad interpretation almost every constitutional provision would fall if Congress were to act in its capacity to govern the affairs of the District.
In addition to the constitutional problems arising under such a broad interpretation of the Seat of Government Clause, consider a practical one. Since Congress has created the District of Columbia's seat in the House, it could take it away by legislation. Suppose the majority party wanted to punish the District or the particular representative of the District, Congress could pass a law abolishing the office. Congress does not have the power to take away all representation from any state, as the Constitution guarantees each state at least one representative. But the District's seat would rest on the whim of the legislature.
TREATING THE DISTRICT AS A STATE
The fallback position for those advocating the use of the Seat of Government Clause as a basis for giving representation to the District is that Congress has the power to treat District as a state, as it has done in certain pieces of legislation and as courts have held in certain instances, and therefore it may convey upon the District all of the attributes of statehood, including right to be represented in Congress.
But if the Seat of Government clause is broad enough to allow Congress to ignore the many clear textual references that only the people in states are represented in Congress then why would this clause be limited to treating the District as a state and then abiding by other constitutional language?
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It is true that in certain contexts Congress and the Courts have treated the District as a state. But variety of circumstances in these cases does not point to a general rule that Congress may treat the District of Columbia as a state. The central case of National Mutual Insurance Company of the District of Columbia v. Tidewater Transfer Company(see footnote 5) illustrates the divisions on this issue rather than the ensus. The case was decided 5-4 and the opinion upheld a law that allowed District residents access to federal courts in diversity suits. However, only two justices held the view that the District should be treated as a state. Three justices in the majority upheld the law, but explicitly refused to consider the District as a state. They instead relied on the Seat of Government Clause, but did not argue that the clause treated the District as a state.
TERRITORIAL JURISDICTION
As the Seat of Government Clause pertains to Congress's power over the District of Columbia, so the Territorial Clause pertains to Congress's similar powers over territories:
''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.'' [Article IV, sec. 3]
The language of the Territorial Clause is different than that of the Seat of Government Clause, but it is no less ''majestic'' in its scope. The logical way to interpret this clause is to read it as Congress having the power to govern the territory as a state government governs its own territory. Even though the language is not identical, in practical effect, Congress under the Territorial Clause should have the same role in governing the territories as it does in governing the District under the Seat of Government Clause.
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But if the Seat of Government Cause is to be read so broadly as to allow Congress to provide representation for the District in Congress, then surely Congress could provide the same representation for the territories under a similarly broad reading of the Territories Cause. This power would not only apply to organized territories or territories that currently have delegates in Congress, but would apply to all territories. And the territories vary widely in population. Puerto Rico has nearly 4 million people and would qualify for five or six representatives in the House if it were a state, but most of the territories are significantly smaller. The population of the Northern Mariana Islands, for example, is approximately 80,000. Wake Island is inhabited by approximately 200 civilian contractors. Does Congress have the power to grant these territories representation in Congress by a simple act of legislation under the guise of governing the territories?
CONCLUSION
The residents of the District of Columbia deserve congressional representation. Unfortunately, the legitimate means for granting that representation are very difficult to pursue. There does not seem to be strong political sentiment in favor of statehood for the District, retrocession of the District to Maryland or a constitutional amendment granting DC congressional representation. Nevertheless, they are the only legitimate alternatives to get congressional representation for District residents.
The ''District of Columbia Fair and Equal House Voting Rights Act of 2006'' has its heart in the right place, but it will not pass constitutional muster. It too easily glosses over the numerous textual references in the Constitution that grant representation only to the people of states. And it builds on a foundation of a much too expansive view of the Seat of Government Clause which might have many adverse consequences if applied in different contexts.
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Mr. CHABOT. Thank you very much, Doctor.
Mr. Charnes, you are recognized for 5 minutes.
TESTIMONY OF ADAM H. CHARNES, ATTORNEY, KILPATRICK STOCKTON LLP
Mr. CHARNES. Thank you. Good afternoon, Mr. Chairman, Ranking Member Nadler and other Members of the Subcommittee. I appreciate very much the opportunity to discuss the constitutionality of H.R. 5388, the ''District of Columbia Fair and Equal House Voting Rights Act of 2006.''
I believe that it is likely that the courts would hold the Congress indeed possesses the constitutional authority to enact legislation, providing that the District of Columbia be considered a congressional district for purposes of representation in the House of Representatives.
The source of this authority is the Constitution's District Clause, which is article I, section 8, clause 17. The District Clause authorizes Congress to establish the District as the seat of Government, and it empowers Congress to ''exercise exclusive legislation in all cases whatsoever over such district.''
The courts repeatedly have held that the District Clause gives Congress extraordinary and plenary power of the District. Indeed, as one court explained, Congress has ''full and unlimited jurisdiction to provide for the general welfare of citizens within the District of Columbia by any and every act of legislation which it may deem conducive to that end.''
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In short, Congress's authority under the District Clause is so expansive that it encompasses the power to provide D.C. residents with a Representative in the House.
While downplaying the District Clause, those who take the position that this bill is unconstitutional principally rely on article I, section 2, clause 1 of the Constitution. As was just noted, that provision states that the Members of the House shall be ''chosen every second year by the people of the several states.''
Critics of the bill claim that the use of the word ''state'' in this provision means that only citizens in the 50 States can be represented by a voting Member of the House.
While this argument has superficial appeal, upon close inspection, I believe that it overlooks history, it overlooks prior judicial interpretations of the word ''states'' as used in other provisions of the Constitution, and it overlooks other legislation that prevents disenfranchisement from congressional representation of U.S. citizens.
In my remaining time, I will briefly summarize the basis for these conclusions.
First, as to history, in 1790, Congress accepted the cessions of land by Maryland and Virginia to create the District. Thus, as of 1790, residents within the District were no longer citizens of those States.
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Nonetheless, by statute, Congress provided that the laws of Maryland and Virginia would continue to apply. Thus, from 1790 to 1800, residents within the District voted in congressional elections in Maryland and Virginia; not because they were citizens of those States, for they were not, but because Congress, acting under the District Clause, legislated that those States' laws would apply, pending further congressional legislation. It is that precedent which I think this bill relies on.
Second, critics of the bill ignore numerous instances in which the courts have upheld laws that treat the District as if it were a State for purposes of the Constitution. The most prominent example is the Supreme Court's Tidewater case.
The Constitution provides, of course, that Congress may grant Federal courts jurisdiction over lawsuits ''between citizens of different states.'' Despite this language, the Tidewater plurality held that the District Clause permitted Congress to expand the Federal courts' diversity of citizenship jurisdiction to include disputes between citizens of a State and citizens of D.C.
Third and finally, H.R. 5388 is directly analogous to the Uniformed and Overseas Citizens Absentee Voting Act. Some U.S. citizens living abroad are not citizens of any State under State law and, therefore, would not be permitted to vote in Federal elections. In order to prevent the disenfranchisement of such overseas citizens, Congress authorized them to vote in Federal elections in the last State in which they lived.
Thus, Congress has already taken the step of giving the vote for House Members to U.S. citizens who do not fall within a hyper-literal interpretation of the phrase ''people of the several states'' in article I, section 2, clause 1.
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Again, Mr. Chairman, thank you very much for the opportunity to share these views with the Committee, and I look forward to answering your questions.
[The prepared statement of Mr. Charnes follows:]
PREPARED STATEMENT OF ADAM H. CHARNES
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Mr. CHABOT. Thank you very much.
Professor Turley, you are recognized for 5 minutes.
TESTIMONY OF JONATHAN TURLEY, J.B. & MAURICE C. SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW, THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
Mr. TURLEY. Thank you, Mr. Chairman, Ranking Member Nadler, Chairman Conyers, distinguished Members of the Committee. It is a great honor to come and testify before you today on such an important subject and to join such a distinguished panel.
My whole life, I have gone to countless weddings, and I have always wondered whether anybody ever stood up at a wedding, when they invited anyone who would object to this marriage to come forward, and now I know.
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It is a very regrettable position to be in, because I have, as everyone, I believe, at this table has done, stated strong views that the current status of the District is nothing short of an outrage. It is a gross embarrassment to any democracy to have so many of our citizens without a vote in Congress.
But this has long been a debate about means, not end. I have never met anyone who is comfortable with the status of the District. And I have concluded that H.R. 5388 is the wrong means. I believe that it is fundamentally flawed on a constitutional level.
As hard as I have tried to come to an opposing position and to stay quiet as this marriage occurs, I have to respectfully but strongly disagree with the analysis put forward by Professor Dinh, Adam Charnes and Ken Starr.
I also believe that the second part of this legislation involving the at-large district for Utah also raises some very difficult questions, legally. I am going to focus on the issue of the D.C. district in my oral testimony, but I have laid out both these positions in detail in my written testimony.
The current position of the District is something of an historical anomaly, and with the passage of time, the original purposes of the District have receded. As you know, in 1783, the Congress was interrupted in its meeting in Philadelphia, as the chairman ably described.
People like James Madison wanted to create a situation where Congress would no longer be ''interrupted with impunity,'' as he said. This was, indeed, one of the guiding purposes of the creation of the Federal enclave. It was not the only purpose.
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There was considerable debate about the Federal enclave and various reasons held forth for creating a non-State entity. To me, that legislative history is perfectly clear. The intention of the Framers was to create a non-State entity, and the non-voting status was part of that intent.
So while the purposes have receded, in terms of why we went in this direction originally, the intent to create a non-State entity is quite clear. Moreover, I do not believe that simply because we have the symbolic purpose left—that is, the desire to have neutral ground for the seat of the Government—that it should be dismissed.
I actually think that is an important reason and that the seat of Government should remain on neutral ground, should remain on a non-State entity. And, for that reason, I have advocated for what I have called a modified retrocession plan, where the District would be shrunk to a very small size, to the seat of Government, and the remainder receded to Maryland.
I won't go through the textual analysis, which is laid out in my testimony, but I do believe that article I is clear when it refers to people of the several States. I think it is clear on its face, and I think it is clear from the legislative history.
I have gone through that history in my testimony to show that the non-voting status of the District was discussed regularly by the framers. It was viewed back then as an abomination.
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This is not a new thing. When it was first proposed, there were objections that a non-voting populous was an affront toward democratic traditions, and there were proposals back then to avoid that status which were rejected.
Alexander Hamilton noted that eventually this District would grow to a size when we would have to inevitably give it a seat in Congress. He made a proposal to allow that to happen. That was also rejected.
So you have text and you have legislative history, in my view, that is quite clear as to the intention behind these constitutional provisions.
I also believe, however, that this is the wrong way to go. I have laid out various policy implications that I submit to you, but I will simply note that what Congress giveth Congress can taketh away.
You are about to take one, frankly, grotesque curiosity of the District's current status and replace it with another. You are going to create some type of half-formed citizen that can vote in the House for a non-State entity. I think it is a mistake.
It will also be the only district that does not grow with the size of its populace. It also puts you on a very slippery slope in terms of what can happen in the future. It is not that I do not trust all of the Members in this room, but we all know that mischievous times lead to mischievous acts, and a future Congress may not be as restrained as you are.
Once you cross this Rubicon, you will lay open, in my view, what was a very stable aspect of the Constitution and give it a fluid and, frankly, dangerous meaning.
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Unfortunately, my time has expired, and so I thank you again for allowing me to appear to today.
[The prepared statement of Mr. Turley follows:]
PREPARED STATEMENT OF JONATHAN TURLEY
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Mr. CHABOT. Thank you very much, Professor.
We will now move to the questioning portion by the panel up here, and the Chair will yield himself 5 minutes for that purpose.
And I will begin with you, Professor, if I can. Would you please elaborate on the alternative proposal for representation for D.C. that you have referred to and why you feel that it would be superior to H.R. 5388?
Mr. TURLEY. Well, thank you, sir.
There has always been a statement from the original act of ceding the land from framers and from courts that the District had two options available to it, Statehood or retrocession, and that appears regularly in history behind these provisions.
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In my view, retrocession is the most obvious way of dealing with this, and I also do not believe that it is such a horrible option. What I have suggested in the proposal I have laid out in the testimony is to restrict the District to the actual seat of Government, extending from Capitol Hill down to the Lincoln Memorial. The remainder would be retroceded to Maryland.
But I have suggested a three-phase process in which the political retrocession would occur immediately, so that the District would immediately be able to vote with Maryland.
You would then establish a commission, probably a three-person commission, much like the one that assisted George Washington, for the next two stages.
The second phase would be to incorporate those aspects of law enforcement and public services that are necessary into Maryland. And the third stage would be the incorporation of any tax and revenue issues.
When we have looked at this in my office, it does not seem insurmountable. And, indeed, Maryland could grant the District special status. It has that authority. It can grant the District special tax status.
So the District can remain unique. But there remains this conceptual problem with replacing that D.C. with an MD, and that is, frankly, what we are dealing with here.
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But I don't believe that symbolic barrier is enough to take this more risky course, because I believe if you take this course, it will be challenged and the District will not be able to gain from reform. It will be frozen in political amber until this is resolved, and I believe it could very well be struck down.
Mr. CHABOT. Thank you very much, Professor.
Dr. Fortier, I would like to turn to you, if I can. In your written testimony, you set forth a number of alternative proposals for achieving representation, also, for the District of Columbia. If you were a Member of Congress, which of the proposals set forth would you champion, and why?
Mr. FORTIER. Well, the three proposals are to adopt the District as a State, to have some sort of retrocession, like Professor Turley mentioned, or to amend the Constitution. They all have variations in how you would do it. So I guess there are pluses and minuses.
I do think the retrocession has the advantage of politically balancing the concerns that would come up better than the others in that the State of Maryland would still have two Senators, it would not change the balance in the Senate, and it would also, I suppose, not so quickly change the balance in the House, with a district that would have to be part of the District and part of Maryland.
I think all of these are possibilities. They are all difficult. They are difficult to achieve. A constitutional amendment would be the cleanest one. The constitutional amendment would eliminate many of the problems with the other areas.
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I think Professor Turley, I am not sure how he would deal with this, but one of the difficulties with retrocession is what is left of the District, this small part of the District. We have the 23rd Amendment; the 23rd Amendment gives the District the right to vote in presidential elections. Some scholars have suggested that the President of the United States and the First Lady would be the two voters in that district and then get three votes in the Electoral College.
Mr. TURLEY. And the twins.
Mr. FORTIER. Those who lived at home, maybe the headmaster of the page dorms. You have a small number of people who live in the very small area.
But I think these are technical questions that could be dealt with. I think we could not have a District. I think there are reasons for it, but I think that we could give up the idea of having the District.
While I think it is symbolically beneficial to have the seat of Government or the small area that Professor Turley would recommend, I think it is not necessary to have that. If either the District became a State or if it were given back to Maryland, we could sort of abolish the smaller part.
Mr. CHABOT. Thank you. I have only got about 20 seconds left, so rather than ask another question, which wouldn't really have time to be answered, just let me explain what is going on, the bells and everything.
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We have a series of votes on the floor of the House now. There is going to be, we believe, three votes. The first one is a 15-minute vote, then two 5-minute votes after that. So it will be approximately a half-hour.
Now, Mr. Nadler has indicated that he will, unfortunately, be unable to come back, but what he is going to do is yield his time to Ms. Eleanor Holmes Norton, so she will have that 5 minutes in order to ask questions in his place.
So we will, at this time, be in recess. We will be back in approximately a half-hour. And I would encourage all Members to come back immediately after the third vote, if it all possible.
We are in recess.
[Recess.]
Mr. CHABOT. The Committee will come back to order. Take a seat, please.
I have been informed that Governor Huntsman and Professor Turley have to catch a 4:15 flight, both back to Utah. So I know your time is somewhat limited at this point.
So I assume that all the witnesses would be agreeable to taking written questions, if all Members haven't had time to ask.
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All four witnesses have indicated in the affirmative.
Mr. Scott, you are recognized for 5 minutes.
Mr. SCOTT. Thank you. Thank you, Mr. Chairman.
Mr. Chairman, I just have a couple of concerns. First of all, when you have the Capital without voting representation, that makes no more sense than Richmond, Virginia, not having representation in the Virginia General Assembly. So I would hope that we can fix this glitch as soon as possible. We have a number of concerns.
And since the gentlelady from Washington, D.C., is here, I would like to yield her the balance of my time, so that she can begin questions.
Mr. CHABOT. The gentleman yields to the gentlelady from Washington, D.C. The gentlelady is recognized.
Ms. NORTON. The gentleman from Virginia is very kind.
I do want the Governor, before he leaves—I understand Mr. Charnes has agreed to stay. I think it is important for us to be able to have an exchange on this constitutional questions.
But I do want to ask the Governor a question. A central feature of assuring what has always been the case whenever Congress has considered adding seats, which is that there be no advantage to one party or another, in order to follow that pattern that has taken us through the Civil War, free States, slave States, a pattern that has always been here.
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Chairman Davis and I have spent four hard years to, in fact, achieve absolute and total parity. We were informed yesterday for the first time that there may be an amendment that would take the basis for that bipartisanship away, it is one of the bases, but it was an important basis, by taking away the at-large seat. We, of course, have thoroughly vetted that.
My question goes to your role as Governor. You have testified, without any prompting from us, we got this testimony just yesterday, where you testified that you understood that the seat would be on an at-large basis until 2012 and that you considered it—and here I am going to quote you, Governor—''a significant benefit, because redistricting, which is always a difficult, time-consuming and politically costly process, would be especially undesirable at this point in time, less than 4 years before the next decennial census.''
Could I ask you to tell us something about the redistricting process in Utah? If you could take us through what it would take. Understand, for the benefit of my colleagues on the panel, you go back after these 4 years to four seats, if you got the fourth seat.
Governor?
Governor HUNTSMAN. Thank you very much for the question.
And I appreciate your earlier comments about this being truly a bipartisan undertaking. And I thought Representative Conyers described it quite well during his remarks, in terms of the construct of the room in which we find ourselves today and the many people who are interested in seeing this happen, both for the District and for the State of Utah.
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As I mentioned in my testimony, the at-large status is something that would be my preference, but I must tell you that I am the chief executive of a State that is growing very, very quickly and experiencing enormous change. So, therefore, I am here to argue that which is in the best interest of the people of Utah, and that is getting an extra seat for people today who are underrepresented in this body.
Ms. NORTON. Just to intervene for a second. Neither Utah nor the District would get a seat if we do not have a bipartisan——
Governor HUNTSMAN. That is correct. Thank you for that, and I am glad that we are having this conversation, because we remind each other of that which one might forget.
Just to get to your specific question, we have maps that are left over from the last decennial census of 2000, done, I think, 2001. I believe that there is one that even reflects a fourth district.
And I think it would be important to look at that option, if, in fact, the requirement for getting a fourth district was that we had a district in place sooner rather than later, instead of waiting until 2010 for the decennial numbers and then 2012 for the election.
Ms. NORTON. And then redistricting would occur or not occur?
Governor HUNTSMAN. The redistricting might occur. And I am here not to speak for my legislature, but rather those things that I think are in the best interest of our State—that is, getting a fourth district and moving quickly and fairly and objectively toward the creation of a fourth seat, even if we had to do it soon. And that would be convening a commission on redistricting, like the one that met in 2001, to, once again, create a new district.
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So one of two things: We could look at the old district that was created in 2001 for the fourth seat that never occurred. Or we could fairly rapidly convene another meeting of this commission in short order and, based upon the principles of fairness and objectivity, create a new fourth district.
That would be my hope. Again, I can't speak for the legislature, but I can give you my word that that is what I would hope for.
Ms. NORTON. When that fourth district was created, was it as it is in many States, agreement by Democrats and Republicans for the way in which the districts were allocated? Did the Democrats, in other words, support——
Mr. CHABOT. The time has expired, but the Governor can answer briefly the question.
Governor HUNTSMAN. It was a group made up of the legislature, representing the distribution politically of the Members.
Ms. NORTON. Did it have bipartisan support?
Governor HUNTSMAN. It was a bipartisan group that created the district.
Ms. NORTON. Was there a vote on it?
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Governor HUNTSMAN. I believe that with the legislature being involved, that there was a vote, although I wasn't there at the time, so I can't speak definitively to that point.
Mr. CHABOT. The time has expired.
The gentleman from Michigan, the Ranking Member, Mr. Conyers, is recognized.
Mr. CONYERS. Thank you, Mr. Chairman.
Witnesses, I have never been so eager to come to a hearing and so disappointed to hear what at least half of you had to say about the subject matter. This has not been a good afternoon for me.
Let me just ask Mr. Fortier. Am I correct that you have no objection to an at-large seat? You have no constitutional objection?
Mr. FORTIER. No, I have no constitutional objection. The Congress would mandate that all States have at-large seats, as they now mandate that they have single-Member districts and they can make exceptions to that. So it would also be a relatively temporary matter, so no objection.
Mr. CONYERS. Well, I feel just a little bit better, turning the dial.
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But, Mr. Charnes, what do you make of this afternoon? How do you make people like me, who walked in here in a totally positive mood, begin to say, ''Wait a minute, what is going on here?''
Now, we know that there will be constitutional objections. We know that there will be lawsuits. We know all that. But how can we get this thing back on track and let's start moving down the road?
Mr. CHARNES. Well, I think that these are difficult constitutional questions, but the courts—in some areas of the structural Constitution, the Supreme Court is very formalistic. In other areas, the Court has approached things more flexibly.
And I think with respect to interpretation of the word ''state'' in various parts of the Constitution, as is laid out in my written testimony, the courts have been much more flexible. So I think that I am comfortable that there is a very good chance, and I think it is likely that the courts would uphold the treatment of the District as a district for the purposes of representation in the House of Representatives.
And as you say, there is likely to be litigation, but there is litigation about a lot of things the Congress does. And that is sort of taking that in stride as part of the business of Congress. I don't see any undue risk here that should give the Subcommittee pause in moving forward.
Mr. CONYERS. Well, I don't think so either, but that is my complaint. I mean, for goodness' sakes, I guess we could have another hearing and pull together another set of witnesses.
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We have all practiced law or been lawyers or assumed to be constitutional experts. We have got to solve a historical, two-century problem. And the Governor comes out here all the way, and we are sitting around saying, ''I am sorry, guys, I know you want to do the right thing, but it is just insuperable, it can't be done. It won't work.''
Well, look, I am the most senior Member on this Committee, and I can tell you that we can find ways. That is our job, to find ways to make it work. That is what we are here for.
And those of the people to whom I have to affix my attention at this moment in time, because I don't want this hearing to go down as one that they started off, everybody agreed what ought to happen, and then they realized that this can't happen, ''There is no way, Congressman. We love your intentions. We know your heart is in the right place, but.'' Well, I am one Member that cannot accept that. And I guess I am going to have to go back to my deep list of constitutional expertise and find ways to overcome it.
Do you have any way of making me feel better, Governor, since you have come the furthest?
Governor HUNTSMAN. I will be very short and to the point, Representative Conyers, because there is a plane waiting. I want it to be understood that this Governor is leaving this hearing room with a desire for real flexibility in terms of how we proceed as a State, so that the District is successful.
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We have all heard the arguments why the District should be successful—I think most in this room agree—and so that Utah is successful, as well. I don't want it thought that we are going to be obstructionists. We are going to work with you and remain flexible in the days to come, so that we can get this done.
And if it is any consolation, I just came in late last night, and I sense a real can-do attitude on the part of people who are in this room and beyond, along with the bipartisan group that has been put together in this Committee. And for me, Representative Conyers, that would give me a great sense of hope.
Mr. CHABOT. The gentleman's time has expired.
Mr. CONYERS. That is wonderful. And I am so glad that you were able to join the panel today, and we will be looking forward to continuing working with you.
Mr. CHABOT. Thank you. The gentleman's time has expired.
The Chair would note that we are going to go into a second round, but we will—if Members would like to talk for longer in the first, we can do that. But I want to accommodate the sponsor of the bill, Mr. Davis, so he has a chance to ask some questions.
So I am going to recognize myself, and I am yielding my 5 minutes.
Mr. DAVIS. Thank you.
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Governor, let me just ask you this question. As you know, our bill reported out an at-large. We think this works very well. That is the preferred mode.
If somehow redistricting were put back in the lap of Utah, are you telling me that you would work to make sure that incumbent Members were involved and there would be no effort to gerrymander anyone's partisan advantage?
Governor HUNTSMAN. Fair and objective, that would be our approach.
Mr. DAVIS. And you would work with the delegation, as well——
Governor HUNTSMAN. Yes, sir.
Mr. DAVIS. —to make sure they were included in those discussions?
I think that is important, should this go a direction that we don't want it to go, and I just wanted to get that on the record. Thank you.
Let me ask if anyone up here can give me an example where a Federal court has limited the authority of Congress under the District Clause.
Mr. TURLEY. Well, not in the sense of striking down the law, but starting in 1805, with Hepburn, the court made clear where the Congress could not go, and the Congress did not go there. The court made clear in 1805 that this was created to be a non-State entity. And the court has repeatedly referred to the non-voting status of the District. So Congress hasn't really pushed that envelope in the past.
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Mr. DAVIS. But there is no specific incident where Congress has acceded that and where the court has struck it down?
Mr. TURLEY. Not until now, no.
Mr. CHARNES. But, in fact, I think there are examples where Congress has regulated, for example, in the Commerce Clause. The Commerce Clause gives Congress authority to regulate commerce among the several States. And Congress has exercised that authority with respect to commerce across the district lines, and the court has upheld that.
So I think there is authority to the contrary, as well.
Mr. DAVIS. And there is a State Clause in the Constitution, right? So that is why they are interpreting constitutional terms.
Mr. TURLEY. That is right.
Mr. DAVIS. Let me ask you. Everyone here believes the city should get a vote in Congress, is that fair to say? We are just disagreeing as to the means. Is that a fair comment?
Mr. TURLEY. It is for me.
Mr. DAVIS. I would just note that all four witnesses indicated in the affirmative.
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And let me ask, one of the difficulties of retrocession—because we looked at this, it is an easy solution, but you are still stuck, as Chairman Chabot pointed out, with three electoral votes for whatever is left, whether it is the page dormitory, whether it is the White House, and it would take a constitutional amendment to change that.
There is no other way around that, is there?
Mr. TURLEY. I actually, in my testimony, deal with that and suggest that, indeed, there are.
There is no question it would create another anomaly, but in my view, if you are not willing to repeal the amendment, then you can constructively repeal it.
For example, under the proposal I suggested of creating that very small District of Columbia, just the seat of Government, the only residents it would contain would be the White House, which could be dealt with legislatively.
But the amendment refers to Congress saying how the electoral votes will be established. And so Congress can simply not do that. It can go dormant, and I think that is achievable. There are other dormant aspects.
Mr. DAVIS. But a lot of court cases have talked about ability of homeless people to move in and be registered and everything else. So it does open a can of worms.
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Mr. TURLEY. Well, actually, Congress can establish that there will be no residents, and, in fact, there cannot be. If you look at my proposal, it would just be actual Federal buildings. Homeless people cannot live in Federal buildings. It is already Federal jurisdictional land. So I think that you actually could force it into a dormancy even without a repeal.
Mr. FORTIER. One could also simply not have a seat of Government. As much as there were original reasons for it, the retrocession could go back to Maryland. There could be no seat of Government.
The 23rd Amendment would exist, saying that the District would get these votes, but there would be no District, essentially. So I think that would work.
Mr. DAVIS. In Federalist Paper 43, James Madison specifically states about the District, ''The state will no doubt provide in the compact for the rights and the consent of the citizens inhabiting the Federal district.''
So the Government would provide for the compact for the rights and the consent of the citizens in having a Federal district. That doesn't sound to me like Madison thought the resident of a Federal district should have no Federal representation.
And, in fact, when it was originally created, from 1790 to 1800, they were citizens among the several States, and they did vote. They voted with Maryland, and they voted with Virginia.
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Why wouldn't Congress have that same authority to change it?
Mr. TURLEY. Actually, I believe what Madison was saying is that when the land was ceded, there would be a negotiation with the affected States.
In fact, Alexander Hamilton anticipated this, to put in a provision that said that the District residents could ultimately get a vote. But if you look at the Constitutional Convention, the ratification convention, it is perfectly clear in there that the understanding was they would not have a vote once the land was formally ceded.
I think what Madison was saying is that the States themselves could negotiate this point as part of it. But repeatedly, as you see in my testimony, you have people that objected strenuously to the creation of this non-State entity without a vote in Congress.
Mr. DAVIS. But there was no specific understanding that Congress couldn't revisit this later, was there?
Mr. CHABOT. The gentleman's time has expired, but you can respond to the question.
Mr. DAVIS. Any of you?
Mr. TURLEY. In terms of that they could return to it, the answer is yes, in one sense, because there was an effort to put the word ''permanently'' into the District Clause. That would have essentially forced the borders to remain rigid, and that was removed to give the Congress the ability.
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But I would suggest that that gave them the ability to relocate the Capital. That was the main concern. But it also gave them the ability to retrocede.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from North Carolina, Mr. Watt, is recognized.
Mr. WATT. Thank you, Mr. Chairman.
It looks like the Governor left, and that keeps me from being tempted to pick a fight with him. The fight was between Utah and North Carolina about this extra seat. [Laughter.]
So I definitely wanted to go back at him about some of those things. So it is probably a good thing.
Mr. CHABOT. Would the gentleman yield for a moment?
Mr. WATT. That would be a side issue.
Yes, sir.
Mr. CHABOT. Yes, we did already get their okay to give them written questions. So you can make those questions as scathing as you would like. [Laughter.]
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Mr. WATT. Actually, I think it is an irrelevancy at this point, if Utah was next, which we concede. We don't concede it should have been in front of North Carolina, but we do concede that it would have been the next in line after North Carolina, and I believe in representation.
So it doesn't hurt my feelings for Utah to get another Representative in Congress, just like it doesn't hurt my feelings for the District of Columbia to get representation in Congress, because I think that is what our democracy is about.
Now, I understand Mr. Turley is leaving soon, too, and there are people here who—I am still studying this issue, but there are people who have a lot more knowledge about it, so I am going to yield.
How much time do I have?
Mr. CHABOT. You have got 3 minutes and 40 seconds left.
Mr. WATT. But you all passed over me in the first round, even though——
Mr. CHABOT. Plus you get another 5 minutes.
Mr. WATT. Okay, so I will yield as much time, 6 minutes maybe—3 minutes to the gentlelady from the District and maybe the rest of my time to the gentlelady from Texas, who is not on the Subcommittee.
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Mr. CHABOT. The gentleman yields.
Ms. NORTON. Thank the gentleman for yielding.
I hope Mr. Turley won't leave before I have a question for him, but I must ask this question first, because we learned yesterday, indirectly, that there may be an amendment that wipes away the at-large agreement that Republicans and Democrats have worked to achieve and that the basis for that amendment is that the people of Utah would have two votes.
And I would like you to comment on the notion that somehow Utah—Utah, with an at-large Member, you get two votes and your vote is somehow expanded rather than diminished.
Mr. TURLEY. I would be happy to.
Ms. NORTON. I want all of you all to, but I certainly would like you to.
Mr. TURLEY. The Utah portion of the bill is actually, in my view, a closer question, a very, very difficult one. And, as you know—you are an accomplished former academic and constitutional expert—I think you can recognize that this is an issue that has not gone before the Supreme Court.
In the Supreme Court language, when it comes to one person, one vote, has always been pretty ambiguous. Now, in favor of what you are doing, quite frankly, the Supreme Court has accepted that there could be a 40 percent differential from a perfect district under one person, one vote. And I think that helps, because there is language there to say that they are not going to require the impossible of you.
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The concern I have about this, though, is that this is something we have never seen before. This district would be about 250 times the size of that perfect district mean, and in terms of population it would be about 2.2 million as opposed to about 640,000.
But the other problem is that the court has said that they want to make sure that there is not a preferred class of voters, and, indeed, these voters would have two Representatives in Congress.
Then my final concern is that people in Utah could object, because if they were to get their own district, it is very likely that Member would be different. For example, if this fourth district was coming out of Salt Lake City, my guess is that they would have a different type of Member representing different interests than an at-large seat.
And so, all those issues go into the mix, and what it leaves me with, quite frankly, is great skepticism.
Ms. NORTON. Skepticism.
Mr. Charnes, would you respond to that?
Mr. CHARNES. Sure. I think there is very little precedent on this point. The fact of the matter is the Supreme Court has not talked about State-by-State comparisons and one person, one vote. They have looked at districts within a State and have struck down some districts that are malapportioned.
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But here, I think there is very little precedent. As a practical matter, there are several States that only have one Representative, and the ratios will never work for those States, because you can't adjust those. You can't have a fraction of a Congressperson.
So I don't think there is a sufficient precedent for the Subcommittee or the Congress to be terribly concerned about the at-large seat. There is great historical precedent for at-large seats.
The first 50 years or so after the founding, there was almost a presumption that States would be represented with at-large Members of the House. Of course, there is no precedent for having a combination of the two, but as Dr. Fortier has mentioned, this is a transitional thing that will just be present for a few years.
It is reasonable and Congress, under the Constitution, actually, has pretty broad authority to intervene in State districting matters under article I, section 4.
Mr. CHABOT. The gentlelady's time has expired.
The gentleman had given the rest of his time, I believe, to Ms. Jackson Lee.
Is that correct, Mr. Watt?
Mr. WATT. Yes.
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Mr. CHABOT. We want to thank Professor Turley for his tremendous testimony this afternoon.
Mr. WATT. Before the professor leaves, could I just clarify one thing? There is nothing constitutional about single-Member congressional districts. That is statutory, isn't that right?
Mr. TURLEY. The constitutional problem comes in the one person, one vote aspect, yes.
Mr. WATT. So, theoretically, we could make a multi-Member district statewide, two Members, for this transition period, if this got cumbersome.
Mr. TURLEY. I am not too sure I would subscribe to that. I would have to look at it.
Mr. WATT. But there is certainly nothing in the Constitution. There is a statute that requires single-Member districts at the congressional level. It is statutory; it is not constitutional.
In fact, I introduced a bill several years ago to give that discretion back to the States to terminate the statutory provision. So if we terminated that statutory provision, you could create a multi-Member district for Utah.
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Mr. TURLEY. I would have to look at that, but the gravitational pull on that question is the Equal Protection Clause, and I am not too sure I would subscribe to it, but I would have to look at it.
Thank you again for allowing me to appear.
Mr. CHABOT. Thank you very much, Professor.
Mr. WATT. I will get to you on the next round. I think you have probably a different opinion, maybe.
Ms. NORTON. Mr. Turley, could you possibly stay for a moment?
Mr. TURLEY. As long as you can order Delta not to——
Mr. WATT. We are on my second round. You all don't squander my time now.
Mr. TURLEY. I am afraid I have got a flight to Utah.
Ms. NORTON. Mr. Turley, I have been yielded time just for this question, because your testimony said that Congress understood, as a defining element of the Federal district, that there would be no vote for the people who lived here, and you said, in return, they somehow get to live here and they ought to be grateful for it.
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In Mr. Charnes's testimony, he seems to find a different intent and a different power that—and, here, I am going now to Mr. Charnes's testimony.
In effect, what you are saying is that Maryland and Virginia, in ceding land, understood that they would, in fact—the citizens, their citizens might lose the vote they had.
Congress, in fact, passed legislation, according to Mr. Charnes, and then the States passed legislation guaranteeing that those voters in Maryland and Virginia would still have the vote.
Do you really concede that the State of Virginia and the State of Maryland would have ceded land to the District of Columbia if they felt their residents would, as soon as it became the Nation's Capital, lose their voting representation in Congress?
Mr. TURLEY. I do, in the sense that, if you look at my testimony, you will see repeated statements by individuals at that time objecting to the status. In fact, right after the land was——
Ms. NORTON. You know they didn't have to do it, that they were not compelled to cede the land.
Mr. TURLEY. But right after they ceded the land, a retrocession movement began in Virginia, and, in fact, the issue of non-voting was the most recurrent theme there. People were objecting that this was despotism, that this was wrong.
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In fact, the debate that occurred back in the early 1800's is the exact same debate we are having now. And I happen to just disagree with my learned colleague, because I don't see how you read those debates, particularly when people are trying to suggest amendments that would allow the residents to vote and those amendments are not being taken up.
And so this was an issue that was not just passed over. It was debated and rejected.
But I have to beg your forgiveness. If I miss this flight, I will turn into a pumpkin.
Mr. WATT. I am going to reclaim my time for the purpose of allowing you to go.
Mr. TURLEY. Thank you very much.
Ms. NORTON. Mr. Charnes, would you respond?
Mr. WATT. Wait a minute. I have got to yield to Ms. Jackson Lee, because I am going to run out of time.
Ms. JACKSON LEE. Let me go quickly, so my colleague can continue. Thank you.
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In the absence of the Governor, in the absence of Mr. Turley, let me, frankly, be very succinct in where I am going.
I think Professor Turley was grounded on constitutional history and premise and the original desires of the Founding Fathers.
Mr. CHABOT. The gentlelady's time has expired. I am going to ask unanimous consent that the gentlelady be given 1 minute to at least make a statement.
Ms. JACKSON LEE. In any event, the idea is that there is a necessity for one vote, one person. The District of Columbia does not have that. That is a crisis, a constitutional crisis in and of itself.
My question to you: Congress can do what it wants to do, is that not correct? Mr. Charnes, Congress can craft this legislation. Obviously, it may be subjected to constitutional muster, but they can write this legislation as a compromise and pass it, is that not correct?
Mr. CHARNES. That is correct.
Ms. JACKSON LEE. It would not be subject to constitutional question in the midst of Congress's work.
And my last point is, then, my last point is, if there was the question of where you put the District of Columbia, we know, with no disrespect to Virginia, the referendum would not pass for it to go to Virginia. The referendum would not pass for it to go to Maryland. So, in essence, you box the District of Columbia in.
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There is no value to saying, ''Don't do anything,'' because then you, again, ignore the rights of people to have one vote, one person. Is that not fairly—I mean, I know you can't predict political votes, but there is no value to talking about inclusion into another State. I don't see the constitutional vision for inclusion in other States.
There is a constitutional provision for making another State. Is that not correct?
Mr. CHABOT. The gentlelady's time has expired.
Ms. JACKSON LEE. Can he just answer that?
Mr. CHABOT. Yes, the witness can respond.
Mr. CHARNES. Well, I think that is right. I think the point you are getting to is you have got some alternatives that are very speculative that present varying degrees of political problems that suggest that they may never happen.
And there is a proposal here on the table that seems a perfect storm, in a good sense. It has partisan balance. It rights historical wrongs. And it would seem a shame to pass up some benefit for residents of D.C. in order—sort of, almost letting the perfect be the enemy of the good.
Mr. CHABOT. The gentlelady's time has expired.
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Ms. JACKSON LEE. I am willing to take my chances. Thank you.
Mr. CHABOT. The gentleman from Arizona is recognized for 5 minutes.
Mr. FRANKS. Thank you, Mr. Chairman. I just had a thought. If every voting mechanism in this country is one person, one vote, then, of necessity, we have to abolish the U.S. Senate—which may be a really great idea, I am not sure.
With that, I would like to yield my time to Mr. Cannon.
Mr. CANNON. I thank the gentleman from Arizona.
Mr. Charnes, in the testimony of both Mr. Turley and Mr. Fortier, they explicitly referenced the potential problems of giving D.C. a vote because of article I, section 2, referring to the people of the several States.
Can you talk a little bit about the District Clause, how it works in conjunction with this section, and why it is not in contravention of that?
Mr. CHARNES. Sure. Well, the courts have uniformly explained that the District Clause gives Congress extraordinary authority legislating for the District. When Congress acts under its other authority, it is constrained by principles of federalism.
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And, likewise, when the States legislate, they are constrained not only by federalism principles, but various specific constitutional restrictions. The Commerce Clause I have referred to restricts what they can do, the Equal Protection Clause and so forth.
The Congress, when it legislates for the District, basically has none of those constraints. And I think that it is that power that allows the Congress to conclude or to provide that the District of Columbia be treated as a district for purposes of representation in the House.
If article I, section 2, clause 1 were perfectly clear, the Framers said it explicitly, ''D.C. residents shall not have a vote in the House, period,'' the District Clause, obviously, could not override that.
But it doesn't say that. And, as I indicated before, the courts have not interpreted the phrase ''states'' so categorically to exclude Congress's authority under the District Clause.
Mr. CANNON. I think diversity of jurisdiction is another example of that. We deal with diversity of jurisdiction in the District, do we not?
Mr. CHARNES. That is right. There are a number of examples. The Diversity Clause, Commerce Clause, article I, section 2, clause 3 refers to apportionment of taxes among the States, and the Supreme Court has said that that includes the District of Columbia.
The sixth amendment, the right to a jury trial, refers to the partial jury of the State and district where the defendant lives, and the courts have said that that includes the District of Columbia.
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So there hasn't been sort of a categorical rigid interpretation of ''state'' in various provisions of the Constitution.
Mr. CANNON. One of the more technical questions, for either of you, if you feel comfortable: If this legislation passes, Utah is the State that is likely to get the new seat. If that is certified based upon the last census, is redistricting done based upon the last census or upon the statistical updates to the last census or is that a choice by the State legislature?
Mr. FORTIER. I believe it is done on the last census numbers. We have the example in Texas and we also have numbers of court-ordered mid-decade redistricting, where it relies on the initial last census numbers.
Mr. CANNON. Let me suggest that Utah has grown very rapidly in the last 6 years. My district has had most of that growth, just as an aside.
And if the legislature chose to use statistical updates for redistricting, what effect would that have, do you think?
Mr. FORTIER. I mean, certainly, it would change the shapes of the districts and change what one could do.
I guess the question is, do you rely on numbers that are officially sanctioned by the census, which is the baseline for what we tend to use, or do we feel comfortable with updating lines?
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I am not sure that the courts would absolutely forbid that, but my sense is that the census numbers are the most legally binding in that regard and you would have to——
Mr. CANNON. Clearly, as of a point in time, they represent an enumeration. But all you have to do is drive around on new roads, new streets, and see new houses.
Mr. FORTIER. But that happens to almost—many States, as we get closer to the end of the district, the districts are of varying sizes. And there has to be some sort of line drawing as to 10 years, ''Why 10 years, not 5 years?''
Mr. CANNON. I guess the real question is, if somebody sues, how do the courts rule on that?
Mr. FORTIER. I believe that they would require the use of the old census numbers.
Mr. CANNON. Mr. Charnes, do you have a different view?
Mr. CHARNES. No, I actually don't have an opinion about that. But Congress has great authority under article I, section 4 to intervene and to direct Utah how to create an at-large seat or how to draw the——
Mr. CANNON. So you believe the at-large seat is okay.
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Mr. CHARNES. Yes.
Mr. CANNON. So in the contingency that the at-large seat does not happen—obviously, I am a supporter of the at-large seat, but if that happens, does the State legislature have latitude to use real numbers versus way out-of-whack numbers?
Mr. CHABOT. The gentleman's time has expired, but you can answer the question.
Mr. CHARNES. That is a very good question. It is sort of a little bit beyond my area of competence.
Mr. CANNON. I would just like to say, Mr. Chairman, that Mr. Turley pointed out that he was going to Utah. I think this is a coincidence. He is certainly not in the pay of the State, as evidenced by his testimony.
Mr. CHABOT. Duly noted. The gentleman's time has expired.
I would just make one point. Mr. Nadler had 5 minutes, and we had indicated that would allow him to yield that to Ms. Norton. So you are welcome to take that 5 minutes, if you would like to do that.
Ms. NORTON. Thank you very much, Mr. Chairman.
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We have heard two extraordinary propositions here: that the Framers intended to disenfranchise U.S. citizens, people who created this democratic public—that was Mr. Turley's testimony; and, secondly, that Maryland and Virginia ceded land without getting assurances that their people would not be permanently disenfranchised.
I think in your testimony, Mr. Charnes, you describe how each of them passed their bills. They didn't have to cede a thing.
Mr. CHARNES. That is right.
Ms. NORTON. Talk about States' rights, this is the early Constitution, where States' rights were all—then the Congress passed legislation recognizing the right of Maryland and Virginia residents to vote.
My question goes to when the Congress assumed full control. You said the United States firmly assumed full control of the District. Congress, by omission, withdrew the grant.
There was no affirmative act of the Congress of the United States withdrawing the vote from these citizens of Maryland and Virginia. Did it simply lapse through inaction, not through any affirmative action indicating the intention of the first Congress?
Mr. CHARNES. I think that is absolutely right, Congresswoman. And I think that there was certainly debate and proposed amendments to fix the problem, but that all happened, I believe, after 1800.
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But I think the historical evidence suggests that no one really thought about this issue until the problem was presented in 1800, and then there were proposals and there was debate. And they, unfortunately, the proposed amendments, never went anywhere.
But I think that reviewing the history suggests that no one really recognized the problem that would be created by the establishment of a district from land that was ceded by the States.
Ms. NORTON. It is very important, when we talk about the intent of the Framers and the intent of the good of the first Congress, because, to understand originalism, we look to those Framers, those first people, who wrote the Constitution.
Another question, the-sky-is-falling notion from Mr. Turley, that once you use the at-large, and quoting from his testimony, ''Congress, by a future majority, could manipulate voting in Congress and reduce representation for insular groups.''
He suggests that once an at-large remedy is granted for 4 years, temporarily, Utah going back to four seats thereafter, what we can expect is Congress will reduce the rights of others not in the same position.
I wish you would respond to that.
Mr. CHARNES. Sure. Well, Congress, in exercising its authority under article I, section 4, is bound, for example, by the Equal Protection Clause. So Congress could not pass a bill with the intent and effect of disenfranchising racial minorities and so forth.
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And I think the slippery-slope argument is one that you hear often, but I don't think there is any evidence here that—there is no reason a court could not say that this transitional effort of giving an at-large seat to Utah was reasonable under the circumstances and commensurate with Congress's authority under article I, when other efforts that were plainly meant at disenfranchising people and had an adverse effect on their voting rights would fall outside Congress's authority.
It strikes me that that is a somewhat speculative hypothetical. It is important to legislate understanding the slippery slope, but it is also important not to be paralyzed by slippery slopes.
Mr. FORTIER. Can I add that we have many cases of temporary things happening in the middle of the districts, States coming into the union, court cases where there have been temporary solutions, as well.
The case where, early on, we had many, many multi-Member districts, we had—I think to answer Mr. Watt's question, we also had some mixed districts. Maryland, I think, actually had districts for the Electoral College, where western Maryland had a few, and it was different in the rest of the State.
So I think there is a lot of flexibility and the mid-district question we deal with all the time because of States having come in. And this will disappear in 4 years if that is what comes out of it.
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Ms. NORTON. I would finally like to clear up the reputation of the Framers, this notion that they intended, as the price of living in the District of Columbia, that people would give up their voting representation in Congress, notwithstanding the efforts that were taken.
I would like you to discuss the quid pro quo notion, especially in light of the concern that we all learned about of the local jurisdiction having control over the seat of Government.
Now, which was their concern, and was there any discussion of any kind that what you should be glad of is somehow you are living in the District of Columbia? Living there gives you some power that others have through congressional representation, and that is the price you are going to pay?
Mr. CHABOT. The gentlelady's time has expired, but the witness or witnesses are free to answer the question.
Mr. CHARNES. I am not aware of any discussion along those lines, quid pro quo, and, therefore, the people who lived in the District should be glad to give up their voting rights in order for the privilege of living in the District.
In fact, it has been alluded to, it was Madison that expressly said that Maryland and Virginia, the ceding States, would protect their own residents that they were losing through—before ceding the land, would ensure that their residents were taken care of.
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Of course, that apparently didn't happen, but I don't think there is any evidence before the cessions that there was sort of a quid pro quo along the lines you are talking about.
Mr. CHABOT. Mr. Fortier, anything?
All time has expired. I want to thank the panel here, both those present and those that had to leave to catch flights, for their testimony this afternoon.
I want to thank all the panel members who attended here this afternoon, both those on the Committee and those not. All the folks in the audience who came who have a particular interest in this issue.
It is a very important issue. This is part of the process going through, and it is impossible to say at this point in time whether this change will occur or not. We will, obviously, confer with our colleagues about this.
The record here is open and available to all Members of Congress, both on this Committee and those not on the Committee. And so, this is an important part of the process in deciding whether this change will be made ultimately or not.
So I want to thank all for attending.
If there is no further business to come before the Committee, we are adjourned. Thank you.
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[Whereupon, at 4:40 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO, AND CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION
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PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
LETTER FROM GREG J. CURTIS, SPEAKER OF THE HOUSE, AND JOSH L. VALENTINE, PRESIDENT OF THE SENATE, UTAH LEGISLATURE, TO CHAIRMAN F. JAMES SENSENBRENNER, JR. IN SUPPORT OF H.R. 5388, SEPTEMBER 13, 2006
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TESTIMONY OF ANTHONY A. WILLIAMS, MAYOR, DISTRICT OF COLUMBIA
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STATEMENT OF THE DISTRICT OF COLUMBIA AFFAIRS SECTION OF THE DISTRICT OF COLUMBIA BAR
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STATEMENT OF CHARLES ORNDORFF, THE CONSERVATIVE CAUCUS, INC.
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STATEMENT OF THE AMERICAN BAR ASSOCIATION
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LETTER FROM LAWRENCE H. MIREL, WILEY REIN AND FIELDING LLP, TO CHAIRMAN CHABOT AND RANKING MEMBER NADLER, SEPTEMBER 20, 2006
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STATEMENT OF LAWRENCE H. MIREL, WILEY REIN AND FIELDING LLP
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TESTIMONY OF THE DC STATEHOOD GREEN PARTY
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LATHAM AND WATKINS LLP, ''SUPPLEMENTAL ANALYSIS REGARDING POSSIBLE D.C. VOTING LEGISLATION BY REPRESENTATIVE THOMAS M. DAVIS, III (R-VA),''
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LATHAM AND WATKINS LLP, ''ANALYSIS REGARDING POSSIBLE D.C. VOTING LEGISLATION BY REPRESENTATIVE THOMAS M. DAVIS, III (R-VA),''
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MEMORANDUM FROM CONGRESSIONAL RESEARCH SERVICE, ''CONSTITUTIONALITY OF CONGRESS CREATING AN AT-LARGE SEAT FOR A MEMBER OF CONGRESS''
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LETTER IN SUPPORT OF H.R. 5388 FROM ROBERT C. KEITHAN, DIRECTOR, UNITARIAN UNIVERSALIST ASSOCIATION OF CONGREGATIONS, TO REPRESENTATIVE TOM DAVIS, MAY 18, 2006
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LETTER IN SUPPORT OF H.R. 5388 FROM KAY J. MAXWELL, PRESIDENT, LEAGUE OF WOMEN VOTERS, TO MEMBERS OF THE HOUSE JUDICIARY COMMITTEE, MAY 31, 2006
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LETTER IN SUPPORT OF H.R. 5388 FROM MARC H. MORIAL, PRESIDENT AND CEO, NATIONAL URBAN LEAGUE, JUNE 12, 2006
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LETTER IN SUPPORT OF H.R. 5388 FROM ROBERT D. EVANS, DIRECTOR, AMERICAN BAR ASSOCIATION, TO CHAIRMAN F. JAMES SENSENBRENNER, JR., JUNE 16, 2006
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LETTER IN SUPPORT OF H.R. 5388 FROM DR. CLARK LOBENSTEIN, EXECUTIVE DIRECTOR, THE INTERFAITH CONFERENCE OF METROPOLITAN WASHINGTON, TO CHAIRMAN F. JAMES SENSENBRENNER, JR., JUNE 21, 2006
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LETTER IN SUPPORT OF H.R. 5388 FROM JOSLYN N. WILLIAMS, PRESIDENT, METROPOLITAN WASHINGTON COUNCIL, AFL-CIO, JUNE 27, 2006
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LETTER IN SUPPORT OF H.R. 5388 FROM MELVIN S. LIPMAN, PRESIDENT, AMERICAN HUMANIST ASSOCIATION, JULY 14, 2006
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LETTER REGARDING H.R. 5388 FROM RONALD JACKSON, EXECUTIVE DIRECTOR OF D.C. CATHOLIC CONFERENCE, AND MICHAEL SCOTT, COORDINATOR OF D.C. LEGISLATIVE NETWORK, THE ARCHDIOCESE OF WASHINGTON, JULY 20, 2006
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LETTER IN SUPPORT IF H.R. 5388 FROM PATRICIA M. WALD TO CHAIRMAN F. JAMES SENSENBRENNER, JR., JULY 25. 2006
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''JEWISH ORGANIZATIONS SUPPORT H.R. 5388,'' LETTER IN SUPPORT OF H.R. 5388,
JULY 25, 2006
LETTER IN SUPPORT OF H.R. 5388 FROM THE LEADERSHIP CONFERENCE OF CIVIL RIGHTS, SEPTEMBER 13, 2006
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MEMO IN SUPPORT OF H.R. 5388 FROM THE LEADERSHIP CONFERENCE ON CIVIL RIGHTS
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LETTER IN SUPPORT OF H.R. 5388 FROM RALPH G. NEAS, PRESIDENT, AND TANYA CLAY HOUSE, DIRECTOR OF PUBLIC POLICY, PEOPLE FOR THE AMERICAN WAY,
SEPTEMBER 13, 2006
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''REFORM JEWISH LEADER URGES COMMITTEE TO SUPPORT CONGRESSIONAL REPRESENTATION FOR WASHINGTON, D.C. RESIDENTS
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LETTER IN SUPPORT OF H.R. 5388 FROM RABBI DAVID SAPERSTEIN, DIRECTOR AND COUNSEL, RELIGIOUS ACTION CENTER OF REFORM JUDAISM, SEPTEMBER 13, 2006
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LETTER IN SUPPORT OF H.R. 5388 FROM HILARY O. SHELTON, DIRECTOR, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP) TO MEMBERS OF THE HOUSE COMMITEE ON THE JUDICIARY, SEPTEMBER 13, 2006
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''INTERFAITH COALITION SUPPORTS H.R. 5388,'' LETTER IN SUPPORT OF H.R. 5388 FROM A BROAD COALITION OF RELIGIOUS ORGANIZATIONS, SEPTEMBER 13, 2006
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LETTER IN SUPPORT OF H.R. 5388 FROM RICHARD T. FOLTIN, LEGISLATIVE DIRECTOR AND COUNSEL, AND DAVID BERSTEIN, EXECUTIVE DIRECTOR OF THE WASHINGTON CHAPTER, THE AMERICAN JEWISH COMMITTEE, SEPTEMBER 14, 2006
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LETTER IN SUPPORT OF H.R. 5388 FROM CHELLIE PINGREE, PRESIDENT AND CEO, COMMON CAUSE, SEPTEMBER 20, 2006
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''SUPPORT DEMOCRACY IN OUR NATION'S CAPITAL,'' THE COALITION TO STOP GUN VIOLENCE
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(Footnote 1 return)
Had the Bureau treated all temporary expatriates alike by simply (a) not limiting its overseas enumeration to federal employees, or (b) excluding all non-U.S. residents from the census, Utah would have had a fourth seat beginning in 2002.
(Footnote 2 return)
John C. Fortier, ''DC Colony,'' The Hill, May 17, 2006.
(Footnote 3 return)
41 F.3d 623 No. 93-5109
(Footnote 4 return)
Testimony of the Hon. Kenneth W. Starr before the House Government Reform Committee, 2154 Rayburn House Office Building, Washington, D.C., June 23, 2004, p. 4. See also Viet Dinh and Adam Charnes, ''The Authority of Congress to Enact Legislation to Provide the District of Columbia with Voting Representation in the House of Representatives.'' November 2004 found at http://www.dcvote.org/pdfs/congress/vietdinh112004.pdf
(Footnote 5 return)
337 U.S. 582 (1949).