For those of you who don't know (and unless you're a true-blue political nerd or have read the FAQ, you probably don't), this site is named after the number of electors in the Electoral College, a number which, since the passage of the 23rd Amendment in 1961, has been fixed at 538, equal to the 100 members of the United States Senate, plus the 435 members of the United States House, plus three more for the District of Columbia. But this number is not fixed by the Constitution. If the number of persons in the Congress changes, so will the number of votes in the Electoral College.
And it looks like the number of votes in the Congress will in fact be changing. On Tuesday, the Senate achieved cloture (broke a filibuster) on S.160, the District of Columbia House Voting Rights Act of 2009, which would (1) permanently expand the size of the House from 435 to 437 members and (2) give one of these additional seats to the District of Columbia. This measure is quite likely to formally pass the Senate soon, be followed up with a vote in the House, and be signed by the President. Unless it is struck down on a Constitutional basis (and it will certainly be challenged), it will become the law.
So in all likelihood, we'll have two new Congresspersons beginning with the meeting of the 112th Congress in 2011. This will in turn affect the Electoral College. The reason the number of electors will increase from 538 to 539 (rather than 540) is because, under the 23rd Amendment, D.C. is already essentially given credit for having a having a vote in the House and so adding an additional voting member in the House is redundant. This has the convenient feature of placing an odd number of total electors in the Electoral College, which means that an Electoral College tie will be impossible in a two-candidate race.
If you've been following the D.C. Voting Rights Act, you might have sometimes heard it said that the Congress was trading a (presumably Democratic) vote in D.C. for a (presumably Republican) vote in Utah. This is not technically true. All the measure does is apportion one additional vote in the House between the 50 states based on the existing formula. It just so happened that, under that formula, Utah got the the short end of the stick and was the next state in line for an additional Congressman anyway. For the 112th Congress, which will be elected in 2010 and whose membership is still determined by the 2000 Census, Utah will gain an additional elected member. But there are no guarantees about which state will benefit in 2012 and beyond ... it could be that the extra seat helps a Republican state like Utah to gain an additional member (in fact, Utah is nearly certain to gain a voting member anyway because of its high population growth), or it could be that the extra vote saves a deep blue state like New York from losing one. So this is a pretty good trade-off for the Democrats: they'd essentially gain a vote in the House permanently (unless aliens take over and D.C. turns Republican) in exchange for giving Utah an extra vote for just two years.
As for this website, we will not be changing our name. FiveThirtyNine.com was already purchased by an forward-thinking German entrepreneur last summer, and besides that, we've built up quite a following for ourselves under this brand name.
But if the Supreme Court finds some excuse to strike this down ... well, I wouldn't entirely mind.
2.26.2009
FiveThirty ... Nine?
@ 7:22 AM
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That's wild. I had no idea.
Wait, you "wouldn't mind"? But you just explained that that this was a good move for the D's. So you're putting your own monetary interest ahead of the country's interest? "Country First" Nate Silver!
I wouldn't hold my breath for this to pass constitutional muster. I think FiveThirtyEIGHT is safe, unless there is a constitutional amendment. And amendments are very hard to psss.
Article I, Section 2 says this (among other things):
"Section 2. The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature....
Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers...."
So, two direct statements would seem to be controlling here. (1) Members of the house are chosen by the people of the several STATES. (2) Representatives shall be apportioned among the several states.
Neither of these implies or allows representatives from units other than states.
In order for DC to gain a seat in the House, either DC must be granted statehood, or the Constitution would need to be amended to allow DC a respesentative as a the federal district (not as a state).
So Nate, you're good. Not to worry.
An electoral math comment: While 538 is divisible by 2, the number 539 = 7x7x11 is not only indivisible by 2 (making a two-way tie impossible), but it is also indivisible by 3, 4, 5, and 6. Given the practical implausibility of a seven-candidate race where all candidates are equally popular, it's safe to say that there will be no electoral ties if we have a 539 member Electoral College.
While I don't think this Act is constitutional, I also don't know who would have the grounds to file suit. Doesn't one have to prove that he was harmed in some way in order to file?
Juris, wouldn't the constitutional question be whether the language in Article I is exclusive (ONLY states) or merely prescriptive (states have to be represented, but Congress could choose to give representation to other entities)? After all, there is no language that expressly PROHIBITS Congress from allowing territories from being represented, correct? And after all, several territories actual ARE represented, only their Representatives haven't been granted the right to vote as part of the whole House. On the face of it, I don't think the issue is a slam-dunk, and it will be an interesting case, probably before the Supreme Court, eventually.
Yes, James. Case and controversy. Good point.
I read the bill and interpretted it to say that Utah would have the extra elector/congressman until 2020 (not 2012) when the next reapportionment occurs.
Further comment: there is likely to be one major lobby in favor of granting statehood to DC (as well as Puerto Rico, for that matter): flag makers. After all, every current U.S. flag would have only 50 stars on it and become defunct.
Ane thus the U.S. flag-making producers of China probably have broad smiles on their faces today -- cheered on even more by the fact that Americans are among the world's most patriotic of flag-waving peoples, and their presidential candidates typically line up in front of as many as 7 American flags to cover the TV-screen backdrop.
539... what have we got for factors...
Well let's see, here they are:
1, 7, 11, 49, 77, 539
So we'd have to wait for a 7 way tie for big trouble.... You never know..
well maybe you can get fiveforty.com and fivefortyone.com just in case ;-)
Looks like an interesting coalition on this one - a few dems aains a few repubs for. An analysis for Nate?
DC would never be granted statehood. This would add two democratic senators to the senate and the republicans would never allow it.
The only way this could happen is if the democrats had a really gigantic majority, so the GOP couldn`t filibuster and even then i`m sure we would have tons of lawsuits.
Something has to be done to give Dc residents representation but statehood isn`t the answer, probably going back to Md or VA for voting purposes is the only viable way to go, but as a MD resident we sure don`t want the problems DC has coming to our state.
Above comments about the unlikelihood of ties ignore the possibility of a three-way race creating a two-way tie: 269-269-1 (for example). Factors (beyond two) don't matter because not all candidates would have to tie, just the top two.
@Bruce-
I think your electoral analysis is a bit lacking. All it would take is one 3rd party candidate to win one odd-numbered electoral vote state to return the possibility of an electoral tie.
Say Charlie Crist decides to mount a 3rd party challenge as some kind of moderate Republican/Independent. He wins Florida's 27 EVs but loses all the other states. That leaves 512 EVs for the major party candidates, with a possible 256-256 tie.
34 states have odd-numbered EVs, so the possibilities for a tie are endless. Not probable, and less so in a two-party race. But not quite the impossibility you describe.
Great posters!! This isn't Constitutional, they should just shrink th federal district to the Mall and incorporate us as a state.
We're not into retrocession either...We don't want all of Maryland's problems holding us back.
Maybe I should buy fivethirtytwo.com, just in case Alaska does secede.
Something has to be done to give Dc residents representation but statehood isn`t the answer, probably going back to Md or VA for voting purposes is the only viable way to go, but as a MD resident we sure don`t want the problems DC has coming to our state.
What a hypocrite. You'd like to see DC get statehood to gain more Democratic influence in Congress, but you're not interested in doing anything to fix the problems the city/district has. You should be ashamed, lowlife.
statler-
i agree completely. i get mad when i think about DC. to deny representation because repubs dont want to give the demos another vote is criminal in my opinion. i never figured out how they were taxed if they had no representation.
Scott posted:
"...they should just shrink th federal district to the Mall and incorporate us as a state..."
Exactly. And that pretty clearly wouldn't require a Constitutional amendment, though I do understand why it could require Maryland's permission, as well as a majority vote of both Houses of Congress.
@Michael: as to who would have standing to challenge the implementation on constitutional grounds, I would think any state could do so. It would argue that there's a potential harm to the people of their state if representatives are not apportioined "according to their respective numbers [population]" as specified in Art. 1, Sec. 2 of the constitution.
In 2001 (or 2?), the state of Utah brought suit because it claimed it lost a seat in the House as a result of the methodology used by the Census Bureau to count "whole numbers of people." Although Utah lost its case in the Supreme Court, it did have standing to sue based on Art. 1, Sec. 2.
OK, I get it: The basis for the case would be the extra Representative for Utah, not the voting representation for DC. Yeah, that part of the bill, if it's passed, might be struck down. But why would the courts strike down the rest, except for partisan reasons?
To get the effect of a tie in three way you wouldn't need an actual tie at all, so long as no one has a majority of the electors, it goes to the house of representatives. (This is what happened in 1820, where Jackson won the most electoral votes, but not a majority and Quincy Adams was chosen by the house.)
Ed in NJ.
Actually, it's less relevant than that.
Ties don't particularly matter, except for the fact that in a two-party race, that's currently the only way for one not to achieve a majority.
Anytime one candidate does not receive a majority it goes to the House. The only interesting twist on a tie is that then only those candidates tied are open for the House to vote for.
So, in your scenario, with FL's 27 to Crist, then you could have a 269-243-27 split that would go to the House as well
@Ed
That scenario is possible, but when the tying candidates fall short of 270, it doesn't matter.
@Michael
The Supreme Court can't pick and choose what portion of a statute it chooses to strike and what portion stays in effect. If any portion of a statute is unconstitutional - such as that granting Utah an extra vote - than the entire statute is unconstitutional and must be stricken and invalidated. Of course, the Court could decide to read a certain meaning into half the statute, and a different meaning into the other half, but that would get very complicated and everyone would start complaining about "Judicial Activism" again.
@Michael: the whole context of Art. 1, Sec. 2 is to identify (a) who gets representatives to the House [states do], (2) the eligibility (age, citizenship) of representatives, and (c) the method of apportioning representatives among the states [counting of free persons, 3/5 of unfree persons, Indians not taxed]; establishing a census to do the counting of whole persons].
Not only is there no constitutional basis for allotting seats in the House to non-states but fixing the number of repreesantives for any unit (e.g., "DC") (other than saying each state has a minimum of 1) also runs agains the principle of apportionment based on population size.
I would guess this would be a 9-0 decision against in the Supreme Court. You don't have to be an "originalist" to see that the only way this could be done is by constitutional amendment.
I tried to open the link embedded in "forward-thinking German entrepreneur last summer," saw a YouTube video in the address and then this message when I tried to open it: "Oops! This link appears broken."
What's up, Nate, trying to Rick Roll us? :-)
However, the news item does check out, as the fivethirtynine.com does exist and is registered to a German.
http://private.dnsstuff.com/tools/whois.ch?domain=fivethirtynine.com
Daniel,
That's not true. Lots of statutes are declare unconstitutional in part.
Take Louisiana's death penalty for rape statute.
The penalty was declared unconstitutional, but that declaration did not render the entire rape statue null and void.
What could well happen would be that the SC could declare that giving a seat to DC is unconstitutional, but Congress is fully within its rights to increase the size of the House, so now the two new seats would be apportioned among the several States, just like the other 435 now are.
I agree that it's unconstitutional. We need a constitutional amendment giving D.C. House representation as well as secure self-government and the power to collect property taxes from the Feds (as Statler N Waldorf said). I think the Democrats are wasting their time trying to do this by legislation.
As has been mentioned above, Congress can increase the size of the House. I think it would be bad precedent to do so on the current grounds, but there's no constitutional limit on the size of the House.
If DC were granted representation by
Constitutional amendment, I would hope that the size of the House would also fixed in number in the same amendment. Otherwise, I think we would be opening up the system to far too much gaming for strictly temporary partisan advantage (either growing or shrinking the House).
I haven't seen this question answered anywhere, so maybe someone here knows.
Say that DC changes its building height restrictions to allow high rises to be built in the city, and the population grows to a million, or whatever would be necessary to gain a second House seat. Would they get this seat, or would the District always be limited to just the one?
Juris is absolutely right -- this will not pass constitutional muster.
Just another naked power grab by the Left who is fearful that the continuing population shift to the sunbelt is underminging their electoral position.
It never ends with you clowns!
Neither of these implies or allows representatives from units other than states.
While I wouldn't put money on either side of a court case, and I'm no legal expert, it's entirely possible that a court may determine that DC can be treated as a state for the purpose of that provision. Partly, this relies on the simple fact that the intention from the framers of the constitution was almost certainly not to disenfranchise a half million taxpaying Americans. Wasn't one of their taglines "no taxation without representation." Moreover, there is some precedent that DC has electors. The thing about a common law system such as that of the United States is that precedent is almost as important as statute, and judges have some leeway for interpretation.
In modern laws, words are chosen very carefully to try to make sure that courts interpret them as they are intended. Centuries ago, this wasn't the case.
In any event, I predict a split court on this issue, and it could go either way.
(Also, since the increase to 539 is based on an increase in the size of congress, having nothing to do with DC voting rights, the size will increase even if a court determines that the provisions of the statute granting a voting Congressperson to DC are deemed unconstitutional.)
@Juris: While Utah had standing to bring a case for losing a representative, I don't think it would be a slam dunk that any state would have standing to bring a suit for apportioning an extra representative to DC. In the Utah case, you can argue a direct harm because they effectively "lost" representation in the House of Representatives. None of the states effectively lose anything when DC gains a representative, they all still have the same number of representatives. Theoretically they could argue that their representatives' votes are worth less because there are more representatives in the House as an effect, but this essentially ask SCOTUS to judge whether an unknown rep would in effect vote against their rep in x number of issues (since if the rep turns out to be voting with the rep(s) in the suit bringing state most of the time, then the rep would effectively be enhancing those rep(s) votes). This would appear to me to be an evidentiary mess and it would be difficult to prove standing until a voting rep was effectively elected and voted on some number of issues. But even then once you have a voting record on this newly elected person, you would be bringing a case to SCOTUS because this newly appointed rep didn't vote with your rep, and that sounds like a case that I wouldn't want on my docket.
I have no idea as to the constitutionality of it, but I definitely assume it is better than even money that it will be found unconstitutional.
What we need is an amendment giving DC a member in the house and complete self-rule. I don't really think DC really needs to be a state, and I think it would be impossible to get the 2/3 majority of the states on board with adding it as 51. One added member to the House (two counting Utah, of course) is far easier to stomach for Republicans than giving the Democrats two Senate seats for eternity. For all of the talk about how the republicans are a regional party and whatnot, Republicans still control 15 state lower houses (20 upper houses) and Nebraska (unicameral legislature)along with 1 tied lower and 1 tied upper house. Assuming both houses are required, then it would be impossible to pass the amendment without some Republican support.
Oh great, from now on, for every new Republican coming to this site, we'll all get to hear.
"SHEESH, STUPID LIBRULS, TEHY DONT EVEN NO THERS 539 ELECTRIC VOTES"
PALIN/JINDAL 2012! SIMPER FI
I agree with Juris that the act would likely be unconstitutional. I am a pretty big supporter of the living document interpretation of the Constitution, but here the language is so clear, it's really hard to get around.
The same article discussing apportionment discusses D.C. (Article I). The fact that Art. I sec. 1 cl. 1 mentions "States" explicitly sets up a straightforward expressio unius est exclusio alterius argument.
As for the standing question, I think any member of the House could bring the claim, since his injury is a dilution of the power of his vote.
Keep in mind that there's always the risk of faithless electors -- as recent as 2004, one of Minnesota's electors cast his presidential vote for John Ewards [sic].
I was waiting for you to talk about this. Oh, and I'm pretty sure everyone that goes to this site does understand what the number 538 represents.
I think this is wrong. The bill would raise the House number to 437 temporarily, and after the following Census in 2010, would scale back to 435. Since DC would be incorporated in that, and that process would be completed in time for the 2012 election, the new number of Presidential electors would actually be 537.
Is fivethirtyseven.com taken?
On second thought, if I had my druthers, here's what we'd do: we'd amend the Constitution to give the citizens of D.C., Guam, the Northern Mariana Islands, Puerto Rico, the U.S. Virgin Islands, and American Samoa a collective House representation proportional to their population, which amounts to about 5 million people (bigger than twenty-nine states). They'd get about 7 House votes; I suppose we could let Congress itself draw the districts, as long as they only did so every 10 years.
"After all, every current U.S. flag would have only 50 stars on it and become defunct."
Not true. When Hawaii and Alaska were added to the union in 1958, Eisenhower decreed that all current 48 star flags would remain valid.
The district clause seems pretty open-and-shut on whether Congress has authority to make decisions "in all cases whatsoever" pertaining to D.C.
Just to further explain why DC is not a state, Art. I Section 8 actually discusses the process for formation of the "seat of government" (DC) and grants Congress the sole power to govern (which has been altered by the home rule provisions). That is, the Constitution actually contemplates the district and treats it as distinct from states (as it discusses land being ceded from the states). Linguistically, this is about as clear as the Constitution gets. I'm not sure why folks in Congress think this will pass muster, since the SC shot the idea down once already.
Ironically, the whole reason for forming DC and giving Congress as a whole control was to emphasize the need for a neutral, non-biased location for government - and avoid putting the capital in any existing city/state. I don't think they could have forseen it growing as it has, much less becoming overwhelmingly Democratic.
They haven't invoked cloture on the DC Voting Rights Act yet -- they've only invoked cloture on whether to start considering it. Another cloture vote would be necessary to actually vote on it.
Check out the Senate's calendar: http://democrats.senate.gov/calendar/2009-02.html
They're still voting on amendments to it.
Nate - I hope you were joking about the Supreme Court overturning DC getting a voice and vote in the House of Representatives. As a resident of the District I pay taxes but have no voice in Congress. When I see issues ads on TV that urge me to contact my congressman who would that be? I pay taxes yet I have no say in how my district is run - Oh sure DC has local elections but if we vote in a measure it means nothing because a lone right-wing nut job from a district far away from us can dictate what our laws are and whom our buildings are named after. If you don't believe me right now Sen. Ensign, Republican for Nevada is trying to water down our gun control laws. Yes Congress has the right to enact laws that effect the whole country but it should not have the right to enact laws that are aimed at one location and which clearly go against that location's wishes. It would be similar to a red state congressman passing a law that made homosexulaity illegal in San Fransico or renaming Wrigley Field the George W Bush Greatest President Ever Field. Nate because I know you are an incredibly smart man why not read up about why DC should have a vote - http://www.dcvote.org/about/index.cfm
@David: I think the underlying principle of your proposal to give representation to U.S. territories might be sound: that territories of the United States whose inhabitants are mainly U.S. citizens should have representation in the U.S. House of Representatives. (And in support of this, it's good to point to the fact that each of the major political parties gives voice to delegates from these territories in their own nominating process, and that citizens in those territories do vote in the national election.)
The principle of "territorial" representation would then be expanded to cover not just states but also the District of Columbia and U.S. possessions (Puerto Rico, etc.).
As to the appropriate number of representatives to be allocated to each "territory" or "possession," this could be any (arbitrary) number, such as 1 each; at least they would then have a voice and in certain situations the representatives might be pivotal voters.
Although Congress determines the size of the House (it's not fixed in the Constitution -- I think it was set by law at 435 about a hundred years ago), it cannot by itself determine which territories are entitled to representatives (only STATES are so entitled, and no other territorial units). So it would require a constitutional amendment to allow either DC or the territories to elect members of the HR.
(On the matter of standing to sue, even under the current proposal regarding DC -- and even if this were regarded as temporary -- I would probably find grounds for states to sue, and it wouldn't have to be because of the specific claim about losing a delegate (with some probability calculation involved) -- at it was with Utah claiming it lost a delegate to North Carolina in 2000 -- but rather a principle of state rights to fair representation, namely, one determined by population size, and one in which no entity other than a state is entitled to have seats in the House and thereby dilute the representation of any state.
Again, if the Constitution were amended, then any new rule could possibly be adopted, including representation of U.S. citizens in DC and U.S. possessions. And thereby states would not be able use the Constitution as a basis to sue for equal representation.)
Those trying to come up with 3+ way ties are forgeting that all you need is the top candidate to not get a majority.
So if the results are 269 - 150 - 120, then it would go to the house since no one got a majority.
This, if nothing else, moves forward the process of finding out what will get District residents representation with full voting rights in the House.
The vote was 62-34. Eight Republicans (including the two who've chaired the Senate Judiciary Committee) voted to bring the bill to the floor. Two Democrats (Baucus and Byrd) voted no. DeMint(R-SD), Harkin (D-IA) and Kennedy (D-MA) did not vote. Minnesota is still without a second Senator.
Pete Kent -
Is there any illogical right wing sound bite that you don't swallow hook, line, and sinker?
Just another naked power grab by the Left who is fearful that the continuing population shift to the sunbelt is underminging their electoral position.
The old "people are moving from states that currently vote Democrat to states that currently vote Republican, so there will be a permanent Republican majority" line.
I remember laughing when I first saw that utterly illogical argument, probably fifteen years ago.
"States" don't vote, people vote.
I've known for years that the actual result of this movement would a big increase in the number of Democrat voters in the "sunbelt".
As has now been shown to be the case.
That should be DeMint(R-SC).
The link to thomas.loc.gov doesn't work -- it timed out. Could you provide a more direct link, or the query parameters, or something?
There are two ways to do this.
1. Constitutional Amendment: This would be the way to continue having D.C. be the same size, but still have a vote. I'd personally have some problems with granting a voting member of congress to the Federal District.
2. Reduce the size of the Federal District. The Federal District, while having a maximum size (100 sq. Miles) does not have a minimum size. Theoretically, two things could happen. They could reduce the size of the "Federal District" to basically just include the Federal Buildings, and non-residential areas, and basically either make a new territory (Say, the Territory of Columbia), and eventually admit that into statehood, or they could redact the land donated back to Maryland (basically granting Maryland another vote in the house).
Several points:
1) There is no way that this is going to pass Constitutional muster.
2) Can DC rejoin MD and VA? Actually, VA took back their contribution to DC a long time ago. (The District was originally square.) Maryland doesn't want back their part. In any case, it's not clear that DC could just give up being the District.
3) SCOTUS can strike down parts of a law that it determines to be unconstitutional, while preserving the legal status of the rest of the law. Having said that, Congress can also explicitly write language into the law stating that if any part is declared to be unconstitutional, then the entire law is invalid.
4) Bruce is completely off base regarding his math, as has been pointed out numerous times. There is no constraint upon electors to only vote for one of the leading n candidates. Nor is a "tie" only achieved when every single candidate gets exactly the same number of electoral votes. (Not to mention a Presidential winner has to get a majority of votes, etc.)
5) Pete Kent, as always, shows his idiocy. As Harold correctly points out, if liberal voters move to Sun Belt states, they don't suddenly become conservative voters. And more than that is at play here: even if some people may switch party affiliation for local races (which happens a lot of the time in 1-party states), they may still vote for their preferred candidate in national races.
In any case, Obama won more states in the Southwest (CA, NM, NV, CO) than McCain did (UT, AZ, TX), so this kind of thinking was rebutted in the most recent election when the national candidate was from the Sun Belt!!!
Hard to imagine a more idiotic comment, really.
Is it possible that the supreme court might take a very wide definition of what 'state' represents, and that for the sake of ensuring that residents of the district are represented in the federal government, in this instance 'state' includes DC? After all the Constitution was written before DC existed. I don't know the exact legalities of doing this, but it seems reasonable to me. (Though i would imagine it might lead to an increase in calls for statehood, which may not be universally popular.)
Nate, Idon't know hwo the courts will rule, but you might want to go ahead and buy those domain names just in case!
3) SCOTUS can strike down parts of a law that it determines to be unconstitutional, while preserving the legal status of the rest of the law. Having said that, Congress can also explicitly write language into the law stating that if any part is declared to be unconstitutional, then the entire law is invalid.
You can read the bill. It's currently written to be nonseverable.
To revise my earlier, uninformed comments. The Constitution did set up the principle of a DC, I guess, but its not as clear cut reading the constitution that this is seperate from the states, more a way of setting up a 'seat' for the federal government, rather than having a distinct area of the country, without the same rights as other parts of the country. (If that makes sense).
In my view the constitution does not disallow representation of DC in the House. Though the logic could also be made that it doesn't disallow senate representation either and so it might as well be a state, which may not be a desirable outcome.
@Statler n Waldorf re: Territories/rights/the past.
Puerto Rico has had numerous votes over the years to a) become a state, b) tell the US they want to leave, or c) maintain the status quo. They routinely choose c) despite the fact that this means they will not get full state benefits, because it means they do not incur full state obligations. If Puerto Ricans are that concerned over not be represented, then they need to choose a) or b) next time.
@Berkley Bear: The comment re: neutrality of the federal government is spot on. Remember that in 1787 the issue of state's rights and state vs. federal was a BIG DEAL. Look up things like SCOTUS cases Chisholm v. GA which led to the 11th Amendment and McCullough v. MD and the Kentucky and Virginia Resolutions.
The idea of reducing the federal capital to just what is currently federal land is one of two ways to make the residential portion of DC a state. The only other way is an amendment to the Constitution. If DC as is were to become a state the section referenced above, Article I, Section 8, which grants Congress control of the federal capital would come into direct conflict with Article IV, Section 4 which says "[t]he United States shall guarantee to every state in this union a republican form of government". Congress cannot run a state and guarantee it a republican form of government. One of those clauses (presumably the part in Art I, Sec 8) would have to go.
Also, to add to why granting DC a voting member in the house is unconstitutional is the language in Amendment XIV, Section 2 which says "[r]epresentatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed." This is in addition to the all places in Article I, Section 2 which say "state" or "states" when discussing the House.
I find the DC Voting Rights Act to be blatantly unconstitutional.
Bit on my background: Law Student and Political Science Student with a law focus, from MA. Not saying this means I'm necessarily right, just that I feel I have a lot of relevant knowledge/experience (as I'm sure many people reading this website do).
I really suspect that this will be found unconstitutional, but I'm pretty sure that's by design, so the Democrats can say, "see we tried to give the citizens in DC a voice, but the mean nasty Republicans sued and got it struck down." Then the Dems can push for statehood.
Actually, given how much easier it is to create a state, this really seems like a no brainer.
However, there interesting little quirk in shrinking DC down only include the federal buildings around the mall and making the rest of the rest a full fledged state. According the the 23rd amendment, that little district composed of federal buildings and a park will still have 3 electoral votes. And just about the only people that I can think of that live in a federal building is the President and his family.
@markymark: Read one of Matt's comments up on this thread.
The Constitution in Article 1 spoke of States having representatives. There was no ambiguity about what was a "state." This was a constitution of the United States -- comprised on the 13 colonies that had become "United States" under the Articles of Confederation.
And thus, as Matt notes, the legal principle of "expressio unius est exclusio alterius" applies. The specific mention of one thing [states] excludes all others [nonstates].
It's not up to Congress to define what a state is. It can try, of course, but I'd give it a one in a million shot of succeeding.
They should just end taxes in DC. No representation, then no taxes either. And the courts and constitution can't do squat about it.
Only then will there be incentive for the rest of the country to pas sa contitutional ammendment fixign the situation.
They should just end taxes in DC. No representation, then no taxes either. And the courts and constitution can't do squat about it.
Only then will there be incentive for the rest of the country to pas sa contitutional ammendment fixign the situation.
Imagine what would happen to Federal tax revenues after DC becomes a tax haven. Hell, imagine what will happen once you have a ton of rich people "living" in DC. Maybe I should buy a row of Anacostia now and sell them off to someone who wants to build a bunch of industrial lofts.
some spammer jerk has already registered fivethirtynine.com
Juris said
The Constitution in Article 1 spoke of States having representatives. There was no ambiguity about what was a "state." This was a constitution of the United States -- comprised on the 13 colonies that had become "United States" under the Articles of Confederation.
And thus, as Matt notes, the legal principle of "expressio unius est exclusio alterius" applies. The specific mention of one thing [states] excludes all others [nonstates].
It's not up to Congress to define what a state is. It can try, of course, but I'd give it a one in a million shot of succeeding.
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Sounds a little like a little paeon to uninumerated rights there my friend. SCOTUS can do pretty much what it likes, never even mind legal precedent. I understand that there is conflict, and my guess is that a relatively conservative SCOTUS may not act in the way natural justice might suggest they should. BUT if I were a SCOTUS justice (and that is so highly unlikely to happen as to hardly worth worrying about) then I would look at the fact that a section of the US population is left unrepresented in the House of Representatives, and say thats wrong, and there is nothing in the Constitution that suggests that was a deliberate intent on the part of the Founding Fathers.
"Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers..."
So I guess taxes are unconstitutional in DC, too.
But seriously, the revenue issue in DC goes beyond that of just the Federal government. It is a MD and VA issue, too. Because all DC taxes have to be created through bills of Congress in which DC has no vote but VA and MD do, they have been unable to to levy any taxes on the MD and VA residents who make their living inside DC. This is not true for other cities/states.
It seems clear to me that the logical solution is for MD to reabsorb DC. The portion of the original DC that was once contributed by VA was already reabsorbed in the early 1800s (it is now Arlington, VA). DC would then have the ability to levy county-specific taxes on its own just as Montgomery County does.
dre7861 said...
As a resident of the District I pay taxes but have no voice in Congress. . . .
But dre, didn't you hear Senator Kyl (or maybe it was Cornyn) the other day? He said that DC residents DO have representation - 100 Senators and 435 House members.
Have you attempted to call the office of Senators Kyl or Cornyn to get answers to your problems? I'm sure their staffs would be VERY willing to help you, since their boss stated DC can call on ANY Senator or House member for help.
[Sarcasm (about stupid GOOPer Senators) now off.]
Berkeley Bear:
Just to further explain why DC is not a state, Art. I Section 8 actually discusses the process for formation of the "seat of government" (DC) and grants Congress the sole power to govern (which has been altered by the home rule provisions). That is, the Constitution actually contemplates the district and treats it as distinct from states (as it discusses land being ceded from the states).
So, the Congress modified its "sole power to govern" already with home rule provisions and the presence of a non-voting delegate in Congress. (I remember talk about her being allowed to vote in committees - did that happen?) If it decides to cede more power, will the courts prevent it from doing so? Remember that the Congress also has the sole power to declare war, yet no president has been enjoined by the courts to bring the troops home from an undeclared war. The courts do not have to guard powers the Congress wants to delegate. Because, remember, the specific wording of the Constitution is one thing, but the built-in checks and balances and decisions of one or another branch to exercise restraint in their use of power is another thing.
My guess is that the Supreme Court will invalidate representation for DC, but I wouldn't be so sure if they weren't nakedly partisan, as shown by the egregious Bush v. Gore decision, which should have resulted in impeachments and removals of 5 Supreme Court justices from office for abuse of power.
Federal courts have repeatedly held that DC can be considered a "state" for certain purposes - such as federal taxation, diversity jurisdiction in federal courts, etc.
So Article 1, Section 2 is no problem to get around.
Of course, as we know, the Supreme Court can choose to disregard its own precedent if it's in the right mood.
So, basically, this is all up to Justice Kennedy.
(BTW, for the record, the bill permanently sets House membership at 437.)
Several things:
The Federal Government each year makes a payment to the District in lieu of the property and other taxes, and other services (water, sewerage) that it would pay if it were not exempt from those taxes and other services, in addition to the increased police and fire protection required because of the federal government's presence; wear and tear on the roads, bridges, etc., because of the federal workforce, etc., etc.
Such payment is not Constitutionally mandated (formally instituted as P.L. 102-102), but it is a political third rail for anyone to consider not voting for it. Political retribution would be one thing to consider - for instance, if the Rep(s) for San Diego were to stop it, the rest of Congress would be very tempted to take punitive action on any monies headed to San Diego.
The proposed legislation PERMANENTLY increases the House total from 435 to 437, with DC getting one of those seats, and the other to be apportioned as is now done. Utah gets the extra House seat starting with the 112th Congress (as it would be the next state to get a seat under CURRENT apportionment if the House had 436 members), but since the 113th Congress will be under new apportionment (because of the 2010 Census) who knows where that additional seat will go?
For DC to get full representation (House AND Senate), I think it very likely will be possible ONLY by Amendment, if for no other reason than lack of majority vote in the Congress, let alone a Supreme Court decision. House only, most experts say is probably 50/50.
For DC to become a state:
The Constitution states the District shall be "not exceeding ten Miles square" (Article I, Section 8). The District could be shrunk down to the Mall, Federal Triangle, and some other portions of the current District, and the rest considered NOT part of the District. Then Congress could admit that remaining portion as a state. Majority vote in Congress is all that's needed to admit a state (Article IV, Section 3), no Constitutional amendment needed.
Addendum to my previous post:
It was Kyl who made the 'representation' statement:
From Bloomburg News (http://www.bloomberg.com/apps/news?pid=20601087&sid=auEHyHitF5Ko&refer=home):
Republican Senator Jon Kyl of Arizona criticized the proposal’s “blatant unconstitutionality.”
“Only states may be represented in the House of Representatives,” Kyl said. “The District does not lack for representation in Congress or need a voting representative” because all lawmakers are obligated to provide for the District’s welfare, he said.
To me, it looks like Kyl opened his office for the DC residents to call on it for constituent services. Of he is the one to say "all lawmakers are obligated to provide", then his is the office that DC residents should first call to make him prove his point. Don't think of going to Eleanor Holmes Norton's for help - go first to Kyl.
If this happens, DC will have to change their slogan on their license plate, which is currently the best of all state license plate slogan- Washington, DC "Taxation Without Representation." That will be too bad.
Seriously though, Pete Kent and other right wingers who claim this is a naked power grab, all I have to say is, Duh. It's political on both sides, as most issues in DC are. Republicans don't care so much about the constitutionality as they do that this will be a Democratic vote. If the situation were reversed, they would be pushing this.
I think someone already mentioned the "faithless elector" possibility: I believe Reagan got an EV in '76 the year Ford won, and at any rate if no candidate gets a MAJORITY it doesn't matter that there can't be a tie--it still goes to the House.
Even as a conservative, I think that the district should have representation in the House. With that said, it seems like the constitution is pretty clear on it to me. It's a significant stretch to treat DC like a state or anything thereabouts when the constitution is fairly explicit. More practically, the Court is fairly conservative, and its conservatives have an originalist bent. I think Scalia would have a field day writing the majority opinion.
The constitution should be amended to give the District some form of representation. But as far as this bill goes, I'm not seeing a good argument in favor of the constitutionality of it.
On the other hand, let's say this passes. Where will standing come from? I don't doubt that someone can create some sort of "harm," but the Court technically requires some demonstration of harm to hear a constitutional case. I'm just trying to imagine what it would be.
Also, a side point, at the risk of sounding a bit obnoxious: many of Nate's arguments/issues are about political process, rather than about outcome. A close reading of Nate's post reveals... well, nothing, about Nate's "political" position on this issue. The last line is a throwaway, alluding to the politics but more making a joke about the "brand name" that Nate and Sean have established here than about the merits of a particular position. I think the absence of a political position is for the best. True analysis should be devoid of partisan leanings, and, for the most part, Nate does an excellent job on that front. It's akin to Nate's baseball analysis of his White Sox/Tigers/Cubs--without knowing the background, I have no idea that he supports those teams. (The comment threads here, on the other hand, become highly political. This is not a bad thing in and of itself--only as far as analysis goes.)
DC needs to be declared a federal city or the non-gov't areas need to be incorporated into a state.
While were at it, we can institute the Wyoming Plan at a minimum (preferably a great increase in reps to the tone of 3050 or so). This would be truly representative, but also swing the country to where it really is: centre/centre-left and not this false centre-right business.
Won't the number change eventually one way or another? Either D.C. gets rep., or population increases enough, or Puerto Rico becomes a state ... or all three. Eventually the EC number *will* increase. I guess D.C. rep is probably the most likely event to happen first. So this site's name will just become "dated:" as the number in the EC at the time the site was etsablished.
Possible solution.
Congress should pass a law saying that D.C. residents may vote for the House of Representatives as pseudo-citizens of Maryland.
It makes geographical sense.
It wouldn't require a constitutional amendment.
Republicans wouldn't get too fussy, as Maryland is already fairly Democratic.
Maryland won't get angry, because D.C. isn't actually becoming part of Maryland (don't know much about this, just what I'm hearing from several comments)
Democrats won't get angry, because it will solidify their hold on Maryland.
Most importantly, D.C. gets the representation that they've been begging for.
The only ones who really really lose are Maryland Republicans, which is unfortunate, but democracy can't make everyone happy.
This seems like the moderate solution. Republicans would prefer to keep the status quo. Democrats would love to grant DC full statehood with 2 senators and 1 representative, all Democratic.
This solution trends toward compromise.
Here's an idea: Cede D.C. to an actual state. Maryland doesn't want it, so throw the other 49 states into a hat and draw one out. Whichever state it is, congratulations! You now have 68.3 brand new square miles of land! Of course, the fun in this would be if DC happens to end up attached to some state like, say, Mississippi.
Regarding all those crowing about constitutionality:
I think there's a strong argument that the Court would simply refuse to act, citing the "political question doctrine."
I do not recall all the elements of a "political question" from law school, but it sort of quacks like a PQD duck. Compare it with cases about gerrymandering. And consider that we are essentially talking about a generalized grievance.
At any rate though it does open up some interesting questions. Imagine this hypothetical -- suppose that we land astronauts on the moon again, and in it's infinite wisdom, Congress decides to apportion 1 vote in Congress to "our heroic astronauts on the moon." Where do you draw the line in terms of where Congress can and cannot add representatives, if you treat Article I as merely prescriptive?
Jim, Bush v. Gore was the political question of political questions, yet the partisan Republicans on the Court decided to take it and usurp the power of the Florida Supreme Court to require the results of Florida elections to be counted equitably. So I think it's highly likely the Supreme Court would rule on this, for partisan reasons if for no others. That said, it's hard for me to understand why people are continuing to claim that it would take a Constitutional amendment to admit DC, minus the Mall and some other Federal buildings, as a state. And to me, that's the real solution. They want statehood and deserve the full representation they demand.
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