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A Phony State By: Marion Edwyn Harrison, Esq.
FrontPageMagazine.com | Monday, March 09, 2009

Some proposals in Congress have a recurring lifespan, patently political and clearly unconstitutional though the proposals may be.  Doubtless foremost in this unhealthy category is legislation to create for Washington, District of Columbia, or “Confusion” as some might say, a voting representative in Congress, just as though it were a state of the Union and the Constitution were to be ignored.

This commentary has addressed ramifications of the subject - albeit with updating and some repetition - on Aug. 26, 2004; May 17 and Nov. 15, 2006; April 17 and Nov. 1, 2007; and July 17, 2008. All are available on the Free Congress Foundation Website, www.freecongress.org.

Why address the subject again? It’s because the proponents of this unconstitutional gambit, as predicted, now having a heavy majority in both houses of the new Congress and a supportive administration, again are beating the drums of triumph. Specifically the District of Columbia House Voting Rights Act of 2009 is pending in the House of Representatives, doubtless to be passed, and a companion bill in the U.S. Senate, passed on Feb. 26 on a vote of 61 to 37.

Some of the proponents seek the creation of two new U.S. Senate seats in addition to the seat for an additional member of the House of Representatives. Officially, and for pragmatic political reasons, the pending legislation would create only the latter. This is riling those who champion not only one new Representative but also two new U.S. Senators.

Believe it or not, there is a so-called elected “office” in Washington, D.C. called “Shadow Senator.” This individual along with other advocates of the full board - two Senators and one Representative - are not as happy as one might expect them to be with the latest development. They fear, probably correctly, that if Congress legislated and the president signed into law a bill to create a full voting Representative in Congress, it would dampen, maybe kill, any effort to go the legal route to grab all three seats, that is, to amend the Constitution.

Article I, Section 2, of the Constitution pertinently reads: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States . . .” and also sets forth eleven other provisions expressly linking Congressional representation to statehood.

Consistent with the Constitution, those who advocated conferring upon District of Columbia residents the right to vote for President and Vice President of the United States, advocated amending the Constitution. Presidents Eisenhower and Nixon, as well as a Democratic Congress, went along with this effort. The result, Amendment XXIII, proposed by Congress on June 17, 1960, was ratified by the requisite 38th State on March 29, 1961.

Two more states subsequently ratified it and one, Arkansas, subsequently rejected it. The nine states that neither ratified nor rejected the Amendment, as a matter of law, had the same effect as having rejected it. An irrelevant statistic: In 1960 the District of Columbia had a larger population than 13 of 50 States. It since has shrunk - roughly from 800,000 to less than 600,000, whose population, leaving aside the question of how many are full-time or merely legal residents, is larger than only Wyoming.

Not surprisingly, practical politics dominate and motivate the recurring efforts to infiltrate voting seats into Congress. In 2004, D.C. voted 89 percent for the Kerry-Lieberman ticket; in 2008, 93 percent for the Obama-Biden ticket. The lone D.C. Delegate to Congress, who presumptuously styles herself “Congresswoman,” effectively is unopposed. One Republican occasionally is elected to the City Council; everybody else is Democratic.

This time, with the current administration and the new Congress, a statute to create a voting Member of Congress almost assuredly will be enacted. Litigation undoubtedly will follow. This commentary does not offer structured legal opinions but the author would not anticipate that those federal courts which treat any ensuing litigation would find the statute constitutional.

It is most unfortunate that proponents of voting rights for D.C. residents do not advocate retrocession to Maryland for the residential and commercial portions of the District of Columbia. The liberal voters of D.C. would find a receptive home in Maryland, another liberal state. They also would have the same representational entitlements as any other American citizen - as does the citizenry of Arlington County, Virginia, and a portion of the City of Alexandria, Virginia, an area that was retroceded in 1846, effective 1847.

Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.

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