“I had been prepared to lose in court, but not to lose the issue. I regard this as a winnable cause — and winnable in the near term.” That was D.C. Delegate Eleanor Holmes Norton (D) in 2000 commenting on the Supreme Court’s decision to affirm the ruling of a three-judge panel that D.C. residents do not have a constitutional right to voting representation in Congress. Ms. Norton was clearly wrong in her optimism about getting justice “in the near term” for D.C. residents — a point painfully driven home more than two decades later when the Supreme Court ruled against a legal effort to give the District voting representation in Congress. No question, though, that Ms. Norton was right in her resolve that this is a cause — involving fundamental rights for American citizens — that must be won and not abandoned.
In a brief unsigned order last week that turned away the appeal, the justices cited the legal precedent in the 2000 case that D.C. is not constitutionally entitled to voting representation because it is not a state. Ten D.C. residents brought the federal suit in 2018 employing an inventive legal theory that the District’s nonvoting status violated due process, equal protection and freedom of association under the First Amendment. They argued that Congress has provided the vote to others who don’t reside in a state, such as Americans living overseas, which they cited as evidence of District residents’ unequal treatment under the law. Neither the three-judge district court panel that ruled in March 2020 against the D.C. residents nor the Supreme Court addressed that contention; there were no oral arguments.
“The court has stuck to its guns that because you’re not a state, you’re not constitutionally entitled to the vote,” said Walter Smith, executive director of the D.C. Appleseed Center for Law and Justice, who was involved in both the 2000 case and the 2018 lawsuit. Any slim hope that the courts might be the remedy to D.C.’s historic disenfranchisement was erased with last week’s decision. Which means it is up to Congress to solve the problem.
Legislation that would make the District the 51st state — with full representation in Congress and complete autonomy in local governance — has twice passed the House and is backed by President Biden. But Republican opposition in the Senate, where 60 votes are needed to prevent a filibuster, presents daunting, some say insurmountable, odds. That — and the possibility that control of Congress could change with next year’s midterms — has advocates for D.C. debating the best strategy. Is it a continued full-court press for statehood or a more modest bid to get a vote in the House patterned after bipartisan legislation advanced in the mid-2000s? Is there a chance for either without filibuster reform in the Senate?
It is just wrong — profoundly wrong — that the more than 710,000 people who make their home in the nation’s capital are denied a vote in the decisions of their federal government. They pay taxes, they serve in the military, they go to war, and they perform all the other duties of citizenship. Indeed, even the federal court panel that ruled against D.C. recognized the problem in a 59-page opinion that was tinged with a note of regret: “We recognize that District residents’ lack of the congressional franchise is viewed by many, even most, as deeply unjust, and we have given each aspect of Plaintiffs’ claims most serious consideration, but our ruling today is compelled by precedent and by the Constitution itself.”