The Constitutional Struggle for Voting Rights in Washington, D.C.

 

Rebecca Kingsley and Jamin B. Raskin

As I would not be a slave, so I would not be a
master. This expresses my idea of democracy.
Whatever differs from this, to the extent of the difference, is no
democracy.

—Abraham Lincoln

 

These words of Lincoln form part of the long historical debate about the meaning of the founding principles of this country. They speak to the fundamental conception we must have about democracy in America—that it is not simply a matter of individual rights, but also a matter of the collective relationship of citizens to each other. The denial of democracy to any one group of citizens within the United States denies the reality of democracy to the entire citizenry.

Throughout the history of the world’s oldest democracy, the ideal has been that all citizens will play a role in the management of public affairs, either through direct participation or by voting in elections to select leaders. From the founding of the republic, however, there has been a gap between the intentions expressed in the Declaration of Independence and the Constitution, and the reality of daily life as experienced by millions of citizens.

As we know, the original voters of the new nation included only white men with property. Women would not have the vote until the passage of the 19th Amendment in 1920, more than 140 years after the Constitution was written. African Americans would wait another 45 years before the Voting Rights Act was passed in 1965. It is difficult to imagine that for all the lives devoted—and even sacrificed—to secure the right to vote in this country, there could still be more than a half million American citizens who lack this right.

But Washington, D.C., continues to be denied a voice or a vote in Congress, even though its residents are taxed and drafted and governed like other American citizens. The history of its disenfranchisement is one of the most important issues surrounding the District of Columbia’s complicated history, and yet is one of the least known and understood.

Origins of the National Capital

The American Revolution ended the colonial era of United States history. With peace declared in 1783, the thirteen coastal colonies were proclaimed free and independent of Great Britain. When Thomas Jefferson wrote in the Declaration of Independence “that these United Colonies are, and of right ought to be, free and independent states,” he was in effect announcing the birth of a new nation.

However, the new nation had a weak government and no capital city under the Articles of the Confederation. Although Philadelphia met all the requirements for a capital site, jealousies between the states prevented Pennsylvania—as well as New Jersey, New York, or either of the Carolinas—from becoming the choice for the nation’s capital. Placing a permanent capital within the jurisdiction of any one state was seen as imperiling the influence of every other. The surest way of avoiding that risk was for Congress to impose “exclusive legislation” over the capital and a small Federal District around it.

Representatives agreed on the overriding importance of a central location for the seat of government. But whereas some defined central as geographically half-way between southern Georgia and northern New Hampshire, to others the term meant the center of population, a point considerably north of Virginia, even when slaves were counted. (Apparently, no speaker mentioned the drawbacks of locating the capital in slave-holding territory.) In the end, neither geography nor demography as much as political bargaining fixed the location of the capital.

But an event in June 1783 highlighted some of the difficulties facing the new national government. Pennsylvania veterans not yet discharged from the army had prepared to march to the State House in Philadelphia where Congress was in session to demand the pay long overdue them for service during the Revolution. Earlier petitions had elicited no answer from Congress (perhaps because the national treasury was bankrupt due to the war).

Upon learning of the soldiers’ impending arrival, Congress asked the Pennsylvania state council for protection. The council took no action, however, and on June 21, some 250 “mutineers” gathered about Independence Hall. The nearest approach to violence any historical account will attest to consisted of little more than some “offensive language” and the occasional musket pointed at the tightly shut windows. When Congress adjourned in midafternoon, the soldiers returned to their barracks without incident. Although the extent of the mutiny’s severity has long been argued by historians, the story has found a place in historical folklore as the reason for founding a new capital city out of reach of mobs and powerful local interests.

Although disagreements over where to locate the capital continued, few men challenged the principle of creating a Federal District under the control of Congress. This was accomplished by the Constitution’s District Clause—Article One, Section 8, Clause 17—which invested Congress with the power “. . . to exercise exclusive legislation in all cases whatsoever, over such District not exceeding ten miles square.” Giving Congress exclusive power over the new capital did not, however, specify the manner in which it was to be governed.

After much political compromise, Congress passed the Residence Act of 1790, giving the president power to choose a district site on the Potomac River that would be carved from lands in both Maryland and Virginia. President Washington became personally involved in the details of organizing the new District, proclaiming its exact boundaries, and pushing through Congress a law to incorporate the established port towns of Alexandria and Georgetown to supply the capita#146;s needs while it was under construction. Washington also appointed three commissioners to administer the District, under whose rule it was decided to call the new capital “The city of Washington.”

In accepting the principle of “exclusive legislation” written into the Constitution, no one had equated the sacrifice of state power with cancellation of the political rights of citizens of the future federal territory. On the contrary, Americans of the 1780s had taken for granted that the District’s permanent residents, like citizens of any state, would “enjoy the privilege of being governed by laws made by representatives of their own election.”1 But in a federal system where all political machinery operated through state organizations, and only citizenship in a state enabled a man to vote in national elections, a centuries-long debate was born. Founding Father James Madison had recognized the potential problem. In Federalist Paper No. 46, Madison had declared the political status of citizens of a federal district to be amply protected “as they will have had their voice in the election of the government which is to exercise authority over them; [and] as a municipal legislature for local purposes, derived from their own suffrages, will, of course, be allowed them.”

Prior to the official establishment of the District of Columbia in 1800, residents of Washington continued to vote in state and national elections in Virginia or Maryland, depending upon which part of the city they lived in. In fact, the nation’s capital bore little resemblance to a city when the transfer of the federal government from Philadelphia to Washington took place in the spring and summer of that year. Congress—made up of 106 representatives and 32 senators—held its first sessions in the unfinished Capitol building that fall. The census of 1800 counted just over 3,000 people in Washington City, another 5,000 in Alexandria, and 3,000 in Georgetown.

The system of Washington residents voting in Maryland and Virginia only ended by virtue of independent decisions made by those states, which rightly reasoned that it was now up to Congress to vindicate the basic democratic liberties of citizens in the District. Yet Congress dawdled. And, by 1801, voting rights for the people of the District of Columbia had disappeared—to be debated and given varying interpretations endlessly over the next two hundred years.

In 1846, the Virginia portion of the District was retroceded to that state, becoming Arlington County and Alexandria, Virginia. In the late 19th century, the city charter of Georgetown was revoked, and Georgetown and Washington were consolidated into one city. Meanwhile, the historical justifications for creating federal control over the District—to secure the independence of the federal government’s headquarters and to insulate it from the undue influence of a “host” state—had vanished with the growing strength and stability of the federal government.

Emancipation and Its Aftermath

A city wedged between North and South, Washington, D.C. became the focus of the long battle over slavery before the Civil War, and a critical center of movements to eliminate segregation and racial discrimination in American life after it ended. During the era of Reconstruction, Congress assumed a more prominent role in governing the capital. Distrusting the local government, the Radical Republicans who dominated Congress aimed to make the city an example for the nation by extending civil rights, voting rights, and education to its black residents. In 1871, under a new city charter, Washington lost most of its home rule after Sayles J. Bowen lost his reelection bid for mayor.

Between 1880 and World War I, Washington grew rapidly, its population more than doubling from 175,000 to 438,000. In the early years of the 20th century, the city’s white majority grew to nearly 75 percent. Yet, even as racial discrimination worsened from 1910 to 1920, its black population continued to grow, giving the capital the highest ratio of black to white people outside of the Old South. By the 1970s, the racial percentages would flip-flop, with blacks constituting over 70 percent of the city’s population.

Lacking any direct influence on their city’s administration, Washingtonians continued to depend on Congress to formulate policies and make appropriations for the city. Both the House of Representatives and the Senate had District committees whose members controlled what the city did through control of the local budget. The absence of home rule led to the formation of many private voluntary organizations to provide a voice to the city’s residents. At the neighborhood level, many black and white residents formed associations to represent public opinion and attempt to influence Congress. At the same time, the Board of Trade—business leaders of the community who happened to be all white men—enjoyed direct access to Congress and the three District commissioners appointed by the president.

The commissioner system was finally dismantled in 1967, when President Lyndon B. Johnson used an executive order to appoint an eleven-member city council and a mayor to govern the city. These officials were to be replaced in turn by elected local officials in 1974. When President Nixon signed the Home Rule Act into law on December 24, 1973, District residents were able, for the first time in more than a century, to elect their own mayor and city council without any oversight from Congress or the White House. However, under the Home Rule Charter, Congress did not relinquish control of either the District’s budget or its courts.

The Struggle for D.C. Voting Rights

Although the Twenty-Third Amendment to the Constitution, ratified in 1961, finally empowered D.C. residents to vote for president, the United States is the only nation on earth that disenfranchises residents of its capital city in national legislative elections. Imagine France denying voting rights to the inhabitants of Paris, or Chile disenfranchising Santiago. Or, for that matter, California excluding citizens of Sacramento from voting for representation in Congress.

The disenfranchisement of nearly 600,000 Americans living in the capital city works a double evil on residents, who are deprived of the vote not only in their national legislature, but also in their local legislature, which is ultimately Congress. Thus, not only must Washingtonians watch federal budgets being hammered out, wars being declared (or not), Supreme Court justices being confirmed, and laws being passed without their consent; they must also put up with the recurring indignity of other people’s representatives tampering with local budgets, overriding local laws, denying local women access to abortion, rewriting local anti-discrimination laws, and even changing the hours that local swimming pools open and close.

Indeed, when Congress accepted gifts of land from Maryland and Virginia in 1791 for the purpose of setting up the capital city, there were actually members of Congress from Maryland and Virginia who lived exclusively within the borders of the proposed Federal District. This lost history furnishes decisive refutation of the idea that the Constitution’s District Clause implies—much less compels—disenfranchisement.

But if residents of the District were essentially “optiona#148; voters in the first days of the republic, their right to be represented today should not be a matter of legislative grace. There was no constitutional right to vote and be represented when the nation began. The whole trajectory of our constitutional history has been to dismantle suffrage barriers of property, wealth, race, gender, and geography. Today, universal suffrage based on the principle of one person-one vote is the fundamental and ineradicable principle of American democracy.

Like other voteless groups in our past, Washingtonians have not taken their disenfranchisement lying down. In 1978, a constitutional amendment to grant D.C. residents equal voting rights in Congress actually captured the requisite two-thirds majorities in both houses, but then fell short of ratification by three-fourths of the states. In 1993, Eleanor Holmes Norton, the District’s non-voting delegate in the House of Representatives (an elective position created in 1970), brought a bill for D.C. statehood to the floor of the House, where it was resoundingly defeated, 277-153. The political doors seemed to close shut.

 

Taking It to the Courts

Subsequent to the defeats described above, some D.C. voting rights activists determined to try their luck in the courts. On September 14, 1998, a lawsuit on behalf of fifty-five named plaintiffs from all walks of life, and more than a half-million other disenfranchised citizens of D.C., was filed in the U.S. District Court for the District of Columbia. The lawsuit, Alexander et al. v. Daley, alleged that the denial of this community’s right to be represented in the United States Congress violates Equal Protection, Due Process, the right to a Republican form of government, and the privileges and immunities of national citizenship—all the critical democratic guarantees of the U.S. Constitution. The suit was brought by the District of Columbia’s Corporation Counsel, John Ferren, and the prominent Washington law firm of Covington and Burling; chief among the defendants was William Daley, the Secretary of Commerce, who is responsible for transmitting an apportionment of seats in the House of Representatives, based on the census, to the president.

A special three-judge panel of the U.S. District Court for the District of Columbia heard the case and rendered a decision in March 2000. While finding that the plaintiffs had no standing to challenge disenfranchisement in the Senate, the panel split 2-1 over the challenge to lack of representation in the House. The two judges in the majority in essence found that the Constitution’s reference to “people of the states” foreclosed any argument that District residents had a right to vote in the House. Their argument can be summed up as “a state is a state is a state” and that only citizens of states have a right to be represented in Congress.

The senior judge on the panel, Louis Oberdorfer, dissented in an opinion that cited both history (District residents voted at the start of the Republic) and current practices that treat the District as if it were a state for numerous constitutional and statutory purposes. Indeed, it is hard to think of a public purpose or function for which the District is not treated like a state, as it is with regard to federal taxes, military conscription, highway and education funds, the Full Faith and Credit Clause, diversity jurisdiction in federal court, and every other provision of the Bill of Rights. His dissent also cited the fact that millions of American citizens presently living abroad, or on federal lands under Congressional control, do have a right to vote.

More to the point, in an opinion beginning with the words “We the People,” Judge Oberdorfer argued that the Constitution does not tolerate government without consent of D.C. residents, whose land was part of the original Constitutional compact. He also showed how the disenfranchisement of Washingtonians cuts against our current voting rights notions. The Supreme Court articulated the doctrine of one person-one vote in Reynolds v. Sims (1964), when it struck down malapportioned legislative districts. Chief Justice Earl Warren found that government may not weigh “the votes of citizens differently, by any method or means, because of where they happen to reside ...” He continued:

Representation schemes once fair and equitable become archaic and outdated. But the basic principle of representative government remains, and must remain, unchanged—the weight of a citizen’s vote cannot be made to depend on where he lives ... This is the clear and strong command of our Constitution’s Equal Protection Clause. This is an essential part of the concept of a government of laws and not men. This is at the heart of Lincoln’s vision of “government of the people, by the people, (and) for the people.” The Equal Protection clause demands no less than substantially equal ... representation for all citizens, of all places as well as all races.

 

Seeking Supreme Judgment

Disappointed by their loss in Alexander et al. v. Daley, but convinced that their voting rights case presents an incontrovertible appeal to common sense, the plaintiffs have brought their appeal to the Supreme Court. No one knows whether the Court will take the case or how the justices might pass upon it. But, regardless of what happens, the lawsuit has opened up tremendous possibilities for vindicating voting rights. A clear win in the Supreme Court would require Secretary of Commerce Daley to include the District population in the reapportionment letter he prepares for the president’s decennial letter to Congress after the 2000 Census is complete. A declaratory injunction would require Congress to grant D.C.’s Delegate the right to full voting powers in the House. A political battle would ensue as to the Senate.

Even a loss in the Supreme Court would clarify whether a statutory voting rights remedy is available here, a possibility denied by the two-judge majority in the U.S. District Court. In that case, voting rights activists would direct their efforts to a new constitutional amendment or statehood bill that completely redraws the boundaries of the District. In a political sense, the cat is out of the bag, as the constitutional justice of this cause is now well-established. Even the majority on the U.S. District Court conceded the “justice,” if not the constitutional merit, of the D.C. voting rights cause. In the long trek to universal suffrage and real democracy, the residents of Washington have passed an important milestone and can experience, with Dr. Martin Luther King, the growing sensation that “while the arc of the universe is long, it bends towards justice.”

 

About the Authors

Rebecca Kingsley is currently producing an independent documentary film about the history of disenfranchisement in Washington, D.C., and the relationship of the local community to the federal government. Her intended audience for the film is high school students as part of their curricula in American history and civics. Her e-mail address is bixkix@aol.com.

Jamin B. Raskin is a professor of constitutional law at American University’s Washington College of Law, and co-counsel with Covington and Burling and the D.C. Corporation Counsel in Alexander et al. v. Daley. He is the author of We the Students: Supreme Court Cases For and About Students, to be reviewed in the October 2000 issue of Social Education. His e-mail address is Raskin@wcl.american.edu.