Disenfranchised in the District
posted by Robert Percival
July 2012 will mark my 33rd anniversary of living in the heart of the District of Columbia. An Iowa native, I moved to D.C. in 1979 to take a one-year clerkship, fully intending to move back to my adopted state of California when the clerkship ended. I clerked for Justice Byron White, the only Supreme Court Justice whose name my father recognized (due to the Justice ’s remarkable athletic career). I rented a Capitol Hill townhouse to be within walking distance of the Court. Despite interviewing only with California public interest groups for post-clerkship employment, I never left D.C. because my new employer — the Berkeley office of the Environmental Defense Fund (EDF) — acceded to a request from the group’s headquarters to lend the D.C. office a new lawyer to help fight the incoming Reagan administration.
Today I find myself still living on Capitol Hill just four blocks away from my first apartment. Over the decades the neighborhood has gentrified, real estate prices have soared, and Hill residents have stopped moving to the suburbs when their children reach school age. Cool new restaurants have sprung up in the neighborhood and, despite dirty tricks by a competing owner to the north, baseball is back. But two things have not changed: political candidates of both parties continue to vilify Washington and I and my family still have no voting representation in Congress.
During his 2008 presidential campaign, Barack Obama, who as a Senator lived in an apartment three blocks from my home, had nothing but harsh words for Washington. After taking office, he refused the invitation to throw out the first pitch at the Washington Nationals 2009 season opener — in my view one of his few mistakes of that year (to his credit, he realized the error of his ways and threw out the first pitch in 2010). The ranks of politicians who settle in D.C. after retiring are legion, and they include many who denounced the District on the campaign trail and piously promised to move back home when their terms were completed (remember the fierce insistence of Bob Dole, who now works for a D.C. law firm, that he would return to Russell, Kansas if defeated in 1996?).
To be sure, people of good will have worked hard to end the injustice of D.C’s disenfranchisement. In February 2009 a bill to expand the size of the House of Representatives by two and to award the two new seats to Utah and the District passed the Senate by a vote of 61-37. But it ultimately was scuttled when the NRA, not content with the Supreme Court’s Heller decision striking down D.C.’s handgun ban as violative of the Second Amendment, insisted that the price of voting representation should be a wholesale repeal of D.C.’s gun control.
In today’s toxic political climate there seems little chance of progress in ending this injustice. In September I met Mark Meckler, the founder of the Tea Party Patriots, at Harvard’s Law School’s Conference on the Constitutional Convention. He had just given a speech passionately asserting that the Tea Party actually was non-partisan and non-ideological. I pointed out to him that the original Tea Party was about taxation without representation, the phrase that now appears on D.C. license plates as a protest against our disenfranchisement. If the Tea Party truly were non-partisan and non-ideological, one would hope that voting representation for D.C. in Congress would be one of their top priorities. But I am not that naïve.
I freely admit that in one respect I am grossly overrepresented in our electoral process thanks to the 23rd amendment. The 23rd Amendment gives the District 3 electoral votes, the number of electors “to which the District would be entitled if it were a State.” That means we have 1 electoral vote for every 200,000 D.C. residents at the time of the 2010 census (when 601,723 people lived in the District). By contrast Texans have only 1 electoral vote for each 661,000 residents (a population of 25,145,000 divided by 38 electoral votes) – do I hear howls of outrage from Republican presidential candidates (no Republican candidate has received even 10% of the D.C. vote since 1988)? But the outrage can be bipartisan — Californians have only one electoral vote for every 677,000 people (55 electoral votes and a population of 37,254,00). Only one state – Wyoming – is more overrepresented than D.C. in the process of electing our presidents – it has one electoral vote for each 188,000 residents (3 electoral votes for 563,626 residents).
This seeming inequity is a product of Article II, Section 1 of the Constitution that assigns electoral votes not on the basis of population, but rather on the basis of the number of Senators and Representatives that each state has in Congress. Since even small states like Wyoming have two Senators, their impact in the Electoral College is unduly magnified. Should this be changed? One answer, of course, would be to amend the Constitution to scrap the Electoral College and elect Presidents by popular vote. I erroneously thought the public would demand this change after the 2000 election when the candidate elected president by the Electoral College received more than 543,000 fewer votes than his opponent.
How did the 23rd Amendment come to be adopted? The surprising answer is that a bipartisan coalition led by Republicans championed its passage. Republican Senator Prescott Bush of Connecticut (father of President George H.W. Bush and grandfather of President George W. Bush) led the charge with the support of Republican President Dwight D. Eisenhower. Congress proposed the amendment on June 17, 1960, and it was ratified by 38 states less than 10 months later. Forty states eventually ratified the amendment – all but Florida, Kentucky. Mississippi, Georgia, South Carolina, Louisiana, Texas, North Carolina, and Virginia (Arkansas was the only state to vote against ratification – but hey, at least they gave us a vote). Rumor has it that part of the impetus for the amendment was Cold War claims by the Soviet Union that the U.S. was denying human rights to District residents. (In 2003 the Inter-American Commission on Human Rights of the OAS concluded that D.C.’s disenfranchisement was a violation of the American Declaration on the Rights and Duties of Man, but the OAS does not have a nuclear arsenal).
Senator Prescott Bush did not want to stop with the 23rd Amendment. He also supported giving the District full voting representation in Congress. Republicans like Bob Dole (“in justice we could do nothing else”), Howard Baker, and even Richard Nixon (after he resigned) endorsed voting representation for the District in Congress. A subsequent effort was made to amend the Constitution to give D.C. full voting representation in Congress (2 Senators and 1 Representative). The District of Columbia Voting Rights Amendment was proposed by two-thirds majorities of Congress in August 1978. However, the proposed amendment died when only 16 states ratified it before its seven-year expiration date.
Over the years we District residents have regularly had to endure Congressional intervention to bar us from spending our own tax money on things like lobbying for D.C. voting rights, funding abortions for women too poor to afford them, and even counting the votes in the initial referendum we held on legalizing medical marijuana. My own favorite outrage is when President George W. Bush in his 2005 State of the Union Message touting his efforts to spread democracy around the world boasted that because of the invasion of Iraq, residents of the Iraqi capital of Baghdad could now vote for members of their National Assembly. D.C. Mayor Anthony Williams, who was sitting in the gallery, should have walked out in outrage.
It would be nice if persons of principle from all ends of the political spectrum stepped up and spoke out for D.C. voting rights like Senator Prescott Bush did. But I’m enough of a realist to understand that only a truly cataclysmic event could change the political dynamic to favor voting representation for the District. I just hope that it will not be something on the order of a devastating terrorist assault on my beloved neighborhood (which fortunately was averted on 9/11 by the brave souls on United Flight 93). Nevertheless, I continue to feel that it is my duty as a D.C. resident to start every talk I give before a Federalist Society audience by raising the issue. Years ago, I would have someone come up to me after my talk to say, “You don’t understand – D.C. is not a state.” However, the last time I mentioned it I heard instead, “You know, Ken Starr, who is on our board, agrees with you.” Perhaps this is progress.
I do have a few modest requests. First, it would be nice to hear someone mention this issue in the current presidential campaign – it does not seem to be on President Obama’s radar screen – after all no candidate wants to be accused of favoring anything connected to Washington. Second, could a few brave politicians at least try to re-focus their anti-Washington campaign rhetoric on our guests who run Congress and the executive agencies (many of whom will grow to love the District and stay here after they retire) and NOT on the city that we residents love? And DON’T try to tell me that we voluntarily chose to be disenfranchised simply because we moved to the District to serve our government and liked it so well that we never left.