The Leadership Conference on Civil and Human Rights

Fact Sheet: The District of Columbia Fair and Equal Voting Rights Act of 2006

September 8, 2006

What H.R. 5388 Does

H.R. 5388 would permanently increase the membership of the U.S. House of Representatives from the current 435 to 437. One of these additional members would represent the nearly 600,000 residents of the District of Columbia, who currently do not have any voting Congressional representation. The other member would represent the state of Utah, in an at-large capacity, until the next Congressional reapportionment after the 2010 census.

After the 2010 census, all 437 House seats would be reapportioned among the fifty states and D.C. based on population, with D.C. remaining eligible for no more than one seat.

Why H.R. 5388 - And The Right to Vote - Is So Important

The right to vote for those who make and enforce laws - the antidote to the evil of "taxation without representation" - is the most important right that citizens have in any democracy. As the Supreme Court noted in the landmark voting rights case of Wesberry v. Sanders (1964):

No right is more precious in a free country than that of having a voice in the election of those who make the laws under which we, as good citizens, must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.

Since 1801, D.C. residents have been deprived of this right. U.S. citizens living in D.C. must pay federal income taxes, register for selective service, and serve on federal juries. Yet they have no voice in the laws that govern these matters, or over any other federal legislation.

Since 2001, Utah residents have also had their right to vote undermined. Because thousands of Utah citizens living abroad were not counted in the 2000 census, Utah was given only three Congressional districts instead of the four that it deserved. As a result, the votes of all U.S. citizens from Utah have been diluted.

Why H.R. 5388 Is Constitutional

Because D.C. is not a state, some have questioned whether Congress has the authority to provide D.C. residents with Congressional representation. But nothing in the language of the Constitution prohibits Congress from enacting such a law - and as legal scholars point out, there is ample reason to believe that H.R. 5388 would have been perfectly acceptable to the Framers:

• Why the District was Created: The Constitution created a separate district in order to keep any state from unfairly influencing the federal government. But there is no evidence that the Framers thought it was necessary to keep residents in this district from being represented in the federal government, only to keep them from forming a separate one. In fact, given the principles on which the recent American Revolution had been based, it is inconceivable that the Framers meant to impose "taxation without representation" on citizens all over again.
• Congress' Broad Authority Over D.C.: To fully protect the interests of the federal government, the Framers gave Congress extremely broad authority over all matters relating to the new federal district under Article I, § 8, clause 17 (the "District Clause"). Courts have ruled that this clause gives Congress "extraordinary and plenary power" over D.C., with "full and unlimited jurisdiction . . . by any and every act of legislation which it may deem conducive to that end," subject only to the express prohibitions in the Constitution. Any legislation affecting D.C. - including H.R. 5388 - must be understood in this context.
• Congress has let Citizens Vote for Congress Even When They Aren't State Residents: While the language of the Constitution literally requires that House members be elected "by the People of the Several states," Congress has not always applied this language so literally:
  • After Virginia and Maryland gave up lands in 1790 that later became the District of Columbia, Congress let residents keep voting in federal elections in those original states through 1800 - even though, legally, they were no longer residents. 
  • The Uniformed and Overseas Citizens Absentee Voting Act allows U.S. citizens living abroad to vote in Congressional elections in their last state of residence - even if they no longer are citizens there, pay any taxes there, or have any intent to return.
• Congress has Treated D.C. as a "State" in Other Contexts: While many provisions in the Constitution refer only to "states," Congress has validly treated D.C. as if it were a state in a number of cases, and could likely do the same for purposes of representation. For example:
  • Article III provides that courts may hear cases "between citizens of different states" (diversity jurisdiction). The Supreme Court initially ruled that under this language, D.C. residents could not sue residents of other states. But in 1940, Congress began treating D.C. as a state for this purpose - a law upheld in D.C. v. Tidewater Transfer Co. (1949).
  • The Constitution allows Congress to regulate commerce "among the several states," which, literally, would exclude D.C. But legislation treating D.C. as a "state" for Commerce Clause purposes was upheld in Stoughtenburg v. Hennick (1889).
• The 23rd Amendment Doesn't Suggest Otherwise: The fact that it took a constitutional amendment to give D.C. residents a role in Presidential elections does not mean that one is required to provide Congressional representation. The 23rd Amendment affected Article II of the Constitution, an article in which Congress' authority is greatly limited - unlike its broad powers, including the "District Clause," under Article I.

Why H.R. 5388 Has Bipartisan Support

H.R. 5388 was cleared by the Government Reform Committee on May 18 by a historic 29-4 vote. Majorities in both parties recognized that while H.R. 5388 is a major advance in equal voting rights, its political impact is neutral. Under current demographics, each party would likely gain one additional House seat, canceling out any partisan advantage. And because the increase in House seats is permanent, no state would lose a seat by giving one to D.C. H.R. 5388's impact on the 2008 presidential election would also be neutral. It would not affect the three Electoral College votes that D.C. residents already have. While Utah would gain one additional Electoral College vote in the 2008 election, a candidate would still need 270 votes - the same as before - to win the Presidency.