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29–872 PDF 2006

DISTRICT OF COLUMBIA FAIR AND EQUAL

HOUSE VOTING RIGHTS ACT OF 2006

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

ON

H.R. 5388

SEPTEMBER 14, 2006

Serial No. 109–140

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

STEVE CHABOT, Ohio, Chairman

TRENT FRANKS, Arizona 

WILLIAM L. JENKINS, Tennessee 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

STEVE KING, Iowa 

TOM FEENEY, Florida 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

CHRIS VAN HOLLEN, Maryland

PAUL B. TAYLOR, Chief Counsel 

E. STEWART JEFFRIES, Counsel 

HILARY FUNK, Counsel 

KIMBERLY BETZ, Full Committee Counsel 

DAVID LACHMANN, Minority Professional Staff Member 

(III)

C O N T E N T S 

SEPTEMBER 14, 2006

OPENING STATEMENT 

Page 

The Honorable Steve Chabot, a Representative in Congress from the State 

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 1

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on the Constitution ....... 4

The Honorable Eleanor Holmes Norton, a Representative in Congress from 

the District of Columbia ...................................................................................... 5

The Honorable Tom Davis, a Representative in Congress from the State 

of Virginia ............................................................................................................. 5

The Honorable Chris Cannon, a Representative in Congress from the State 

of Utah, and Member, Committee on the Judiciary .......................................... 7

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Member, Subcommittee on the Constitution .............. 8

The Honorable Steve King, a Representative in Congress from the State 

of Iowa, and Member, Subcommittee on the Constitution ............................... 9

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia, and Member, Subcommittee on the Constitution .......................... 9

The Honorable Melvin L, Watt, a Representative in Congress from the State 

of North Carolina, and Member, Subcommittee on the Constitution .............. 10

The Honorable Chris Van Hollen, a Representative in Congress from the 

State of Maryland, and Member, Subcommittee on the Constitution ............. 10

WITNESSES 

The Honorable Jon M. Huntsman, Jr., Governor of Utah 

Oral Testimony ..................................................................................................... 12

Prepared Statement ............................................................................................. 13

Dr. John Fortier, Research Fellow, American Enterprise Institute 

Oral Testimony ..................................................................................................... 14

Prepared Statement ............................................................................................. 16

Mr. Adam H. Charnes, Attorney, Kilpatrick Stockton LLP 

Oral Testimony ..................................................................................................... 20

Prepared Statement ............................................................................................. 23

Mr. Jonathan Turley, J.B. & Maurice C. Shapiro Professor of Public Interest 

Law, The George Washington University Law School 

Oral Testimony ..................................................................................................... 49

Prepared Statement ............................................................................................. 51

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Steve Chabot, a Representative in 

Congress from the State of Ohio, and Chairman, Subcommittee on the 

Constitution .......................................................................................................... 93

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas .................................................................. 100

Letter from Greg J. Curtis, Speaker of the House, and Josh L. Valentine, 

President of the Senate, Utah Legislature, to Chairman F. James Sensenbrenner, Jr. in support of H.R. 5388, September 13, 2006 ............................... 104

Testimony of Anthony A. Williams, Mayor, District of Columbia ....................... 105

Page

IV

Statement of the District of Columbia Affairs Section of the District of Columbia Bar .................................................................................................................. 110

Statement of Charles Orndorff, the Conservative Caucus, Inc. ........................... 115

Statement of the American Bar Association ......................................................... 122

Letter from Lawrence H. Mirel, Wiley Rein and Fielding LLP, to Chairman 

Chabot and Ranking Member Nadler, September 20, 2006 ............................. 125

Statement of Lawrence H. Mirel, Wiley Rein and Fielding LLP ......................... 128

Testimony of the DC Statehood Green Party ........................................................ 154

Latham and Watkins LLP, ‘‘Supplemental Analysis Regarding Possible D.C. 

Voting Legislation by Representative Thomas M. Davis, III (R-VA),’’ ............ 158

Latham and Watkins LLP, ‘‘Analysis Regarding Possible D.C. Voting Legislation by Representative Thomas M. Davis, III (R-VA),’’ ..................................... 161

Memorandum from Congressional Research Service, ‘‘Constitutionality of Congress Creating an At-Large Seat for a Member of Congress’’ .......................... 166

Letter in support of H.R. 5388 from Robert C. Keithan, Director, Unitarian 

Universalist Association of Congregations, to Representative Tom Davis, 

May 18, 2006 ........................................................................................................ 170

Letter in support of H.R. 5388 from Kay J. Maxwell, President, League 

of Women Voters, to Members of the House Judiciary Committee, May 

31, 2006 ................................................................................................................. 171

Letter in support of H.R. 5388 from Marc H. Morial, President and CEO, 

National Urban League, June 12, 2006 ............................................................. 172

Letter in support of H.R. 5388 from Robert D. Evans, Director, American 

Bar Association, to Chairman F. James Sensenbrenner, Jr., June 16, 2006 .. 173

Letter in support of H.R. 5388 from Dr. Clark Lobenstein, Executive Director, 

the InterFaith Conference of Metropolitan Washington, to Chairman F. 

James Sensenbrenner, Jr., June 21, 2006 ......................................................... 177

Letter in support of H.R. 5388 from Joslyn N. Williams, President, Metropolitan Washington Council, AFL-CIO, June 27, 2006 ........................................... 178

Letter in support of H.R. 5388 from Melvin S. Lipman, President, American 

Humanist Association, July 14, 2006 ................................................................. 180

Letter regarding H.R. 5388 from Ronald Jackson, Executive Director of D.C. 

Catholic Conference, and Michael Scott, Coordinator of D.C. Legislative 

Network, the Archdiocese of Washington, July 20, 2006 .................................. 181

Letter in support if H.R. 5388 from Patricia M. Wald to Chairman F. James 

Sensenbrenner, Jr., July 25. 2006 ...................................................................... 182

‘‘Jewish Organizations Support H.R. 5388,’’ Letter in Support of H.R. 5388, 

July 25, 2006 ........................................................................................................ 183

Letter in support of H.R. 5388 from the Leadership Conference of Civil 

Rights, September 13, 2006 ................................................................................. 184

Memo in support of H.R. 5388 from the Leadership Conference on Civil 

Rights .................................................................................................................... 186

Letter in support of H.R. 5388 from Ralph G. Neas, President, and Tanya 

Clay House, Director of Public Policy, People for the American Way, September 13, 2006 .................................................................................................... 188

‘‘Reform Jewish Leader Urges Committee to Support Congressional Representation for Washington, D.C. Residents ............................................................... 189

Letter in support of H.R. 5388 from Rabbi David Saperstein, Director and 

Counsel, Religious Action Center of Reform Judaism, September 13, 2006 ... 190

Letter in support of H.R. 5388 from Hilary O. Shelton, Director, National 

Association for the Advancement of Colored People (NAACP) to Members 

of the House Commitee on the Judiciary, September 13, 2006 ........................ 191

‘‘Interfaith Coalition Supports H.R. 5388,’’ Letter in support of H.R. 5388 

from a broad coalition of religious organizations, September 13, 2006 ........... 193

Letter in support of H.R. 5388 from Richard T. Foltin, Legislative Director 

and Counsel, and David Berstein, Executive Director of the Washington 

Chapter, The American Jewish Committee, September 14, 2006 .................... 194

Letter in support of H.R. 5388 from Chellie Pingree, President and CEO, 

Common Cause, September 20, 2006 ................................................................. 195

‘‘Support Democracy in Our Nation’s Capital,’’ The Coalition to Stop Gun 

Violence ................................................................................................................. 196

(1)

DISTRICT OF COLUMBIA FAIR AND EQUAL 

HOUSE VOTING RIGHTS ACT OF 2006

THURSDAY, SEPTEMBER 14, 2006

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to notice, at 2:12 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Steve Chabot 

(Chairman of the Subcommittee) presiding. 

Mr. CHABOT. The Committee will come to order. 

This is the Constitution Subcommittee. I am Steve Chabot, the 

Chairman of the Committee. We wish everybody a good afternoon, 

and we welcome you to the House Subcommittee on the Constitution’s legislative hearing on H.R. 5388, the ‘‘District of Columbia 

Fair and Equal House Voting Rights Act of 2006.’’

The District of Columbia was created by article I, section 8, 

clause 17 of the United States Constitution, which provides that 

‘‘Congress shall have power to exercise exclusive legislation in all 

cases whatsoever over such district, as may, by cession of particular states and the acceptance of Congress, become the seat of 

the government of the United States.’’

The rationale for this provision was set forth by James Madison 

in Federalist Paper No. 43, in which he wrote, ‘‘The indispensable 

necessity of complete authority at the seat of Government carries 

its own evidence with it. It is a power exercised by every legislature of the union, I might say of the world, by virtue of its general 

supremacy. Without it, the public authority might be insulted and 

its proceedings interrupted with impunity.’’

The emphasis for creating a capital city separate from the control 

of any State occurred in 1783, when a crowd of Revolutionary War 

soldiers protested outside the building in Philadelphia in which the 

Continental Congress was meeting. The Continental Congress requested assistance from the State of Pennsylvania, but that State’s 

government refused to send the militia, forcing the Congress to retreat to New Jersey. 

The actual creation of the District of Columbia occurred during 

the first Congress, when that body accepted the cessions, land, of 

Maryland and Virginia. From 1780 until the capital officially 

moved to the District of Columbia in 1800, the residents of the District were able to vote for the representatives and senators of the 

States from which they had been seated. 

Once the District was formally adopted as the seat of Government, however, the residents of the District ceased to have voting 

2

representation in Congress. Evidence of the Founders’ intent with 

respect to representational rights of District residents is sparse. 

Whatever the intent of the Founders, the residents of the District 

have sought representation for years. 

For example, in 1978, Congress passed an amendment to the 

Constitution that would have given the District of Columbia voting 

representation in both the House and the Senate. However, that 

resolution only received the approval of 16 of the 38 States necessary to ratify an amendment to the Constitution, and it expired 

in 1985. 

District residents also sought to obtain voting representation 

through the courts. In 2000, the United States District Court for 

the District of Columbia held that District residents did not have 

a constitutional right to representation in Congress. The court held 

that the language of article I, section 2 of the Constitution ‘‘makes 

clear just how deeply congressional representation is tied to the 

structure of statehood.’’

While acknowledging that the court could not give relief to District residents, the court did urge a political solution to the problem. H.R. 5388 represents one possible political solution. 

Introduced by Representative Tom Davis of Virginia on May 16, 

2006, the bill has 40 cosponsors, including Delegate Eleanor 

Holmes Norton, who is with us today. H.R. 5388 would permanently increase the size of the House of Representatives to 437 

Members from 435, which it is now, and would give one additional 

seat to the District of Columbia. 

The bill would give the other seat to Utah, which missed out on 

an additional representative in the House by approximately 800 

residents during the 2000 apportionment. The Utah seat would be 

at-large, meaning that Utah residents would vote both for their geographic representative and for the statewide at-large representative, until the next apportionment prior to 2012 congressional elections. 

The bill also contains a non-severability clause, which ensures 

that if any section of the bill is struck down as unconstitutional, 

the whole bill will be rendered ineffective. 

Many commentators have noted that H.R. 5388 is a novel solution to what has been a pernicious and vexing problem for Congress for the last 200 years. However, that novelty also leads to 

new and challenging constitutional questions. 

For instance, in granting the District of Columbia a seat in the 

House of Representatives, the bill potentially puts two sections of 

the Constitution in conflict. On one hand, supporters of the bill 

claim that the District Clause gives Congress plenary authority 

over the District of Columbia, including the power to give it representation in the House of Representatives. 

On the other hand, some scholars point to the language of article 

I, section 2, that the House of Representatives shall be ‘‘chosen by 

the people of the several states,’’ and maintain that the District, as 

a non-State, cannot be given voting representation merely through 

exercise of the District Clause. 

Similarly, H.R. 5388’s grant of an at-large seat to the State of 

Utah also pits two constitutional principles against each other. 

Under the Constitution, Congress enjoys wide authority both to apVerDate 0ct 09 2002 12:15 Nov 16, 2006 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 G:\WORK\CONST\091406\29872.000 HJUD1 PsN: 29872
3

portion the seats of the House of Representatives and to make or 

alter regulations relating to the times, places and manner of holding elections. 

However, the Supreme Court has held that article I, section 2 of 

the Constitution requires that, ‘‘As nearly as practicable, one man’s 

vote in a congressional election is to be worth as much as another’s.’’

The question then arises whether this principle of one person, 

one vote, is violated by a bill that some might characterize as giving one person two votes, in the State of Utah, for a period of 6 

years. 

These are complicated and interesting issues, and we are fortunate to have a distinguished panel of experts with us today that 

can help us to understand the constitutional implications of this 

legislation. 

I also would like to thank the Governor of Utah for appearing before this Subcommittee to explain the importance of the bill to his 

State, Utah. 

Finally, I would note that this legislation is supported by many 

civil rights groups, including the Leadership Conference on Civil 

Rights. And we have the distinguished gentleman, Wade Henderson, here with us this afternoon that we worked very closely with 

during the hearings and legislative consideration of the Voting 

Rights Act reauthorization, which the President signed into law 

this July. And Mr. Henderson and many other civil rights leaders 

were present with us at that ceremony. 

And we appreciated your involvement in that, Mr. Henderson. 

As always, we look forward to working with our friends in the 

civil rights community to ensure that all voices are heard in this 

process. 

I also would like to acknowledge the presence of a number of 

other people. One of those people, who has just entered the room, 

Mr. Tom Davis, who represents one of the districts in Virginia. And 

Mr. Davis, as I had mentioned before, is the principal sponsor of 

this legislation. 

We also have Delegate Eleanor Holmes Norton, who represents, 

obviously, the District of Columbia and has done so so ably for 

quite a number of years now. 

We also have Chris Cannon here, as well. 

I mention these particular Members because they are not Members of this Subcommittee, but are—at least Mr. Davis is a Member 

of the Judiciary Committee. The other two I mentioned are not—

the Judiciary Committee, but not the Subcommittee. 

I apologize. Mr. Cannon is a Member of the Judiciary Committee, 

but not this Subcommittee. And, actually, he is the Chairman of 

one of the Judiciary Subcommittees, as well. 

And I want to reiterate the Committee’s policy as it relates to 

non-Member participation, which is as follows. By unanimous consent, non-Judiciary Committee Members may submit statements 

for the record. They may also participate in the question-and-answer portion of the hearing and in opening statements, as well, but 

their time must be yielded by a Subcommittee Member. 

Judiciary Committee Members who are not Members of the Subcommittee may also participate under these same rules. 

4

Without objection, the non-Members of the Subcommittee will be 

permitted to submit statements for the record and they may ask 

questions, subject to being yielded time by another Member of the 

Subcommittee, as well. 

And I want to reiterate that this is generally not the Committee’s 

policy to have non-Members sit on the dais. So the events today 

don’t necessarily bind any future actions of the Committee, but 

welcome them here to the dais this afternoon. 

I would also like to recognize several other Members, distinguished people who are here, and not in any particular order. But 

I guess it is, since we will acknowledge and thank the Mayor of 

Washington, D.C., Mayor Anthony Williams, for being with us this 

afternoon and for his service to the community over these years. 

We have Councilmember Carol Schwartz here with us, as well; 

Councilmember Dave Catania—I hope I am pronouncing that correct; Councilmember Adrian Fenty, who prevailed in the Democratic primary for mayor this year, as well. 

And congratulations on that. 

And we have Shadow Senator Paul Strauss with us this afternoon. We have Mary Cheh, who won the Democratic primary in 

Ward 3. 

And have I failed to recognize any other members of the council? 

If so, I apologize. Having been a member of Cincinnati City Council 

myself, I definitely want to recognize others. 

I am sorry. Kwame Brown is also here, another Member of Council. 

So we welcome you all here this afternoon and thank you for attending. 

At this time, I would recognize the gentleman from New York, 

Mr. Nadler, who is the Ranking Member, to make an opening 

statement, if he would like to do so. 

Mr. NADLER. Thank you, Mr. Chairman. I am interested to hear 

that, like the Supreme Court case of Bush v. Gore, our proceedings 

today have no precedental value. 

Mr. Chairman, I want to welcome our distinguished witnesses 

and also welcome our colleagues who have worked so very hard in 

the cause of equal voting rights for the citizens of the District of 

Columbia. 

The District is ably represented by our colleague, Eleanor 

Holmes Norton, who has been a tireless advocate for the citizens 

of our Nation’s Capital. The gentleman from Virginia, Mr. Davis, 

has likewise taken on this cause and deserves great credit for his 

work to move this effort forward. 

We will hear arguments concerning some of the very difficult 

legal issues surrounding the approach to D.C. voting rights taken 

in this bill, as well as questions arising from the portions of this 

bill pertaining to Utah. I look forward to that testimony. 

Some of these legal issues are quite challenging, and we owe it 

to the citizens of the District and of Utah, as well as the rest of 

the nation, to get it right. 

But before we get into the technical questions, I want to just reiterate the basic and most important thing at stake here. It is a disgrace, a blot on our nation, that the citizens of our Capital City do 

not have a voice in Congress. 

5

Whatever technical issues there may be with respect to rectifying 

this problem, we must never lose sight of the fact that our democracy is permanently stained by the disenfranchised group of citizens who pay taxes, serve in our wars, work in our Government 

and bear all the responsibilities of citizenship. 

Whether you took a cab to work or rode the Metro or bought a 

cup of coffee or walked on a sidewalk or were protected by a police 

officer or got a parking ticket or participated in this hearing, your 

safety, your livelihood, every aspect of your life, including this 

hearing, was made possible by people who have no vote in our democracy. There is no excuse for that. 

If we are to have the audacity to hold ourselves out to the world 

as a beacon of freedom and democracy, if we want to lecture other 

countries about the importance of freedom and democracy, as this 

Congress and the President regularly like to do, we need to clean 

up our own House and Senate. 

So I thank you, Mr. Chairman. I welcome our witnesses and our 

colleagues, and I look forward to the testimony. 

And I yield the balance of my time to the gentlelady from the 

District of Columbia. 

Ms. NORTON. I thank the gentleman for his kindness in yielding. 

I certainly wanted time to thank Chairman Sensenbrenner and 

Chairman Chabot for their courtesies, especially you, Mr. Chabot, 

for presiding at this hearing and for your work to prepare us. 

I would like to certainly thank all of the witnesses who have 

come forward. You are going to be very helpful to us. 

I want to especially thank Governor Huntsman, who had to come 

further than most of us, for coming all the way from Utah. 

I would be remiss, Mr. Chairman, if I did not thank you for your 

work on the recently reauthorized Voting Rights Act. And if I didn’t 

tell you how much that work means on its own for the District of 

Columbia, I need to tell you, sir, that the residents of the District 

of Columbia identify with your work on the Voting Rights Act and 

see a direct link between that work and the denial of voting rights 

for 200 years. 

For the people who live here, this is a district that is two-thirds 

African-American, but of every background, we have been denied 

the right to vote. 

I want to acknowledge the presence of the godmother of the civil 

rights movement, who, with John Lewis, the only two who are living, and who designed the work that led to march on Washington 

and the civil rights statutes. 

We hope for a bipartisan solution, the same solution that Chairman Davis and I have spent 4 years in crafting. 

And I thank you for all your courtesies. 

Mr. CHABOT. Does the gentleman yield back? The gentleman actually has a little more time. 

Mr. NADLER. Yes, I yield back. 

Mr. CHABOT. Okay, the gentleman yields back. 

The gentleman from Arizona, a Member of the Committee, Mr. 

Franks, is recognized for 5 minutes. 

Mr. FRANKS. Thank you, Mr. Chairman. I would like to yield 21⁄2

minutes to Mr. Davis, please. 

Mr. DAVIS. I thank my friend for yielding. 

6

I think the bill before this Subcommittee is unique and a creative 

legislative solution, which provides a win-win opportunity to the 

Congress. I hope the Subcommittee will consider this with an open 

mind. 

For 205 years, the citizens of the District have been denied the 

right to elect their own fully empowered representative to the nation’s legislature. This historical anomaly has happened for a number of reasons: inattention, misunderstanding, a lack of political opportunity, and a lack of will to compromise to achieve the greater 

good. 

I have long stated it is simply wrong for the District to have no 

directly elected national representation. Let’s be real. How can you 

argue with a straight face that the Nation’s Capital shouldn’t have 

some direct congressional representation? For more than two centuries, D.C. residents have fought in 10 wars, have paid billions of 

dollars in Federal Taxes. They have sacrificed and shed blood to 

help bring democratic freedoms to people in distant lands. 

Today, American men and women are fighting for democracy in 

Baghdad, and here in the Nation’s Capital, residents lack the most 

basic democratic right of all. 

What possible purpose does this denial of rights serve? It doesn’t 

make the Federal district stronger. It doesn’t reinforce or reaffirm 

congressional authority over D.C. affairs. In fact, it undermines it 

and offers political ammunition to tyrants around the world to fire 

our way. 

In spite of my concerns, I was long frustrated by the lack of any 

politically acceptable solution to this problem. That all changed 

after the 2000 census, when Utah missed picking up a new seat by 

less than a thousand people. 

Utah, as you know, contested this apportionment and lost in 

court. As I looked at the situation, I realized the predominance of 

Republicans in Utah and Democrats in the District and thought we 

might be able to fit them together. 

The D.C. Fair Act would permanently increase the size of Congress by two Members. The plan is intended to be partisan-neutral. 

It takes political concerns off the table, or at least it should. 

After answering the political question, we moved on to address 

whether Congress, independent of a constitutional amendment, had 

the authority to give the District a voting Member. Through hearing testimony and expert opinions, we have established, by clear 

authority of Congress, to direct the political affairs of the District. 

As Ken Starr, a former appeals court judge here in the District, 

stood before my Committee, the authority of the Congress, he said, 

is awesome with respect to the District. 

We have also received the expert opinion of Viet Dinh, a Georgetown law professor and former Assistant Attorney General, asserting the power of Congress. 

Some legal scholars will disagree, but the courts have never 

struck down a congressional exercise of the District Clause. There 

is no reason to think the court would act differently in this case. 

It is now essentially a matter of political will as to whether D.C. 

receives a voting Member of Congress or not. 

7

And today I received a letter from our former colleague, J.C. 

Watts, offering his support. ‘‘Your proposed legislation does a great 

job of balancing the achievable with the desirable,’’ he wrote. 

The District is a wholly unique political entity. It isn’t a State; 

it isn’t a territory. States and territories have unique constitutional 

status, but so does the District. The District was formed to create 

a seat of Government, where the Federal Government could exist 

without interference from any one State. In a real sense, the District exists to create a safe place for democracy. 

I want to thank Eleanor Holmes Norton, Mayor Williams, the 

council, who have come a long way from the control board days, for 

their interest in this legislation, and my Ranking Member, Henry 

Waxman, for bringing this, and to you, Mr. Chairman, and to 

Chairman Sensenbrenner, for making this hearing possible today. 

Mr. CHABOT. Thank you very much. The gentleman yields back 

to the gentleman from Arizona. 

Mr. FRANKS. Mr. Chairman, I would like to yield the remainder 

of my time to Mr. Cannon, please. 

Mr. CANNON. I thank the gentleman from Arizona. 

And, Mr. Chairman, thank you for holding this hearing. 

I would like to first associate myself with the comments made by 

the gentleman from Virginia, and also I would very much like to 

thank him for his leadership and work on this issue. 

I would also like to thank the delegate from the District of Columbia, Ms. Holmes Norton, for her work on this issue. 

As Mr. Davis said and, by the way, as Mr. Nadler said, as he was 

making his point—I would associate myself with his comment—

that it is unconscionable that we have people who fight and die and 

live and serve in America without being able to vote. 

And so, as Mr. Davis pointed out, it is a matter now of political 

will. I think, having polled many of my Republican colleagues, that 

the Republicans have the will to do this. I think, also, the Democrats have the will to do it. And so I think this is a good day for 

America. 

I would also like to thank my governor for taking the time to 

come here today. This is a mark of how important this issue is 

Utah. I have literally known the Governor his whole life and almost all of my life. His gray hair notwithstanding, I am a little bit 

older, but he is a good friend and understands this issue and understands the importance of this issue. 

So I appreciate your being here, Mr. Governor. 

I have taken the position that this bill is good as it is. It currently contains an at-large provision. That makes my life easier, 

frankly. That means I don’t have to run for re-election, and Rob 

Bishop’s and Jim Matheson’s lives, as well. 

But I have also said that the important thing here is to actually 

have a new district in Utah and the voting rights in the District 

of Columbia. And so I am looking very much forward today to the 

insights and information we are going to get from this panel as to 

what is appropriate as we frame this issue for final passage on the 

floor. 

And I would just reiterate again in closing, before I yield back, 

how pleased I am to see that this issue has come to fruition, that 

8

the political will is here and that people in the District will actually 

have a vote. 

I have always thought this is an abomination that they did not, 

a historical anomaly that we can correct now. And it is also appropriate for Utah to have, as the next State that would get a seat, 

to have that additional seat. 

So I want to thank you, Mr. Chairman, again, for holding this 

hearing, and yield back the balance of any time that Mr. Franks 

has yielded to me. 

Mr. CHABOT. The time has long since expired. So thank you very 

much. The gentleman’s time has expired. 

We have been joined by several additional persons who we want 

to recognize this afternoon. We have another Member of Council, 

Vincent Gray, who just won the Democratic primary for D.C. Council Chairman and is also currently a Member of Council. 

We have been joined by Nancy Zirkin, also with the Leadership 

Conference on Civil Rights; Hilary Shelton, who is the head of the 

D.C. NAACP chapter. 

And we are so pleased to be joined by Ms. Dorothy Hite. For 

nearly half a century, Dorothy Hite has given leadership to the 

struggle for equality and human rights for all people. Her life exemplifies her passionate commitment for a just society and her vision of a better world. 

And we welcome you here this afternoon, Ms. Hite. 

I would, at this time, like to recognize the distinguished gentleman from Michigan, who is the Ranking Member of the Full Judiciary Committee. The gentleman from Michigan, Mr. Conyers, is 

recognized. 

Mr. CONYERS. Thank you so much, Chairman Chabot. 

I only wish that we could get the photograph of everybody in this 

room right now, because this is a most historic and distinguished 

coming together of experts, Government officials, lovers of democracy, the witnesses, everybody. 

And I have got a picture, a jazz picture, where they number everybody in the room and then you identify, ‘‘Gosh, I didn’t know he 

was here or she was there,’’ because we are at a historic moment. 

And for Chairman Chabot and to Jerry Nadler and Bobby Scott, 

Mel Watt, all of you here, here we are back in the Subcommittee 

on the Constitution of the United States House of Representatives 

Judiciary Committee. This is exactly where we were several 

months ago when the Voter Rights Act extension of 1965 was taken 

up and worked on and deliberated. 

And there were as many imponderables, as much difficulty, as 

many constitutional questions as there are surrounding the discussion that will shortly take place here. We are up to it. We can handle it. We have done it before in this Subcommittee, and we will 

be doing it again, with your help. 

I go back a little ways in this, too, because I remember the late 

Joe Rawl, and what a wonderful spirit it is to have him watching 

over us. And Walter Fauntroy, for almost 20 years, who worked on 

this subject before us. 

There have been many that have sewn the seeds and laid the 

path that bring us right here where we are today. The Constitution 

gives the Congress the authority to rectify the issues. 

9

We will be in the courts, we know, but that doesn’t bother anybody that I know within these walls today. But on the heels of the 

Voting Rights Act reauthorization, we must now address this longstanding voter inequity that we all know too much about already. 

The Congress, in a bipartisan spirit, has to work to protect the 

rights of the citizens of this great Capital City. 

And, Congressman, Chairman Chabot, your work on the Voting 

Rights Act distinguishes and gives you the complete authority to 

move and lead and guide us to where we have to go from here, 

from this historic meeting that brings us all here today. And I 

thank you so much. 

Mr. CHABOT. Thank you very much, Mr. Conyers. 

The gentleman from Iowa, Mr. King, is recognized. 

Mr. KING. Thank you, Mr. Chairman. 

And I am looking forward to the testimony on the part of the witnesses, and I am going to keep my remarks very short in order to 

help expedite this process, because I can see by the crowd here that 

there is a lot of intensity on this, and I really want to hear from 

the witnesses. 

I will say that I have a perspective that I would like to just inject 

into the thought process as this discussion moves forward. And 

that is, I happen to have a profound conviction that American citizens should be represented in the reapportionment process in 

America. 

And as I listened to the injustice described by Mr. Davis, I reflect 

upon the nine to 11 congressional seats that would be differently 

distributed across America if we counted citizens for our census as 

opposed to homosapiens. 

In other words, we have millions of illegals that are represented 

in the United States Congress, whether they can vote or not, because they are counted for redistricting purposes. And I believe 

that is a consideration we could keep in mind as we correct the injustices. 

But I just make that point, and I open my ears and yield back 

the microphone to hear the testimony of the witnesses. 

Thank you. 

Mr. CHABOT. Thank you. The gentleman yields back. 

The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. I, too, would just make 

a very brief comment so that we can get to the witnesses. 

Fighting for freedom abroad, when citizens right here in Washington, D.C., suffer without voting representation in Congress, no 

reasonable understanding of democracy can tolerate this denial of 

representation. 

So I look forward to working with the Committee Members to 

remedy this injustice. And we should proceed as expeditiously as 

we can and not let the details of whatever happens in Utah slow 

us up. We need to move as expeditiously as we possibly can to remedy this ongoing injustice. 

Thank you, Mr. Chairman. I yield back. 

Mr. CHABOT. Thank you very much. The gentleman yields back. 

The gentleman from Florida, Mr. Feeney, is recognized. 

10

Okay, we are back to the gentleman from North Carolina. Mr. 

Watt is recognized. 

Mr. WATT. Thank you, Mr. Chairman. I thank you for having the 

hearing, and I will yield back the balance of my time in the interest of hearing the witnesses at some point. 

Mr. CHABOT. Thank you very much. 

The gentleman from Maryland, Mr. Van Hollen, is recognized. 

Mr. VAN HOLLEN. I thank you, Mr. Chairman. Thank you for 

holding this hearing and moving forward on this legislation. 

As the representative of the congressional district that borders 

right on the District of Columbia, I want to just say how much I 

hope that we will move this forward so we can get to the entire 

process quickly. 

It is absolutely unfair and unjust that one of my constituents on 

the Maryland side of the D.C. boundary is able to elect a Representative who can vote in Congress and the person right across 

the street from my congressional district does not have the ability 

to elect a Representative who can vote in Congress. That is wrong. 

We need to correct that. 

I want to thank my colleague, Representative Eleanor Holmes 

Norton, for her long efforts and her long championship of trying to 

get this through the Congress, not this bill, but other bills that she 

has pushed forward on this issue. She has been sort of indefatigable and a champion here, and it has been a pleasure to try and 

work with her on those issues. 

I want to congratulate Mayor Williams for his incredible service. 

And it is great to see you and all the Members of the Council. 

To you, Mr. Fenty, congratulations on your recent victory. 

And let me just close with this. I want to congratulate Congressman Tom Davis from Virginia. I also have the privilege of serving 

on the Government Reform Committee that he chairs. And he has 

really spent a lot of time and effort to craft this compromise. 

My view is that we should have voting rights for the District of 

Columbia as a matter of principle. And there have been legislations 

to do it. I mean, as a matter of principle, the residents of this great 

city should have voting rights. But I understand the art of the possible. And I want to congratulate Congressman Davis for taking 

the lead on this issue and crafting this piece of legislation. 

And I would only say, to all of us on this Committee and the Judiciary Committee, this is a piece of legislation that has been much 

debated in this Congress. It has been much considered in the Government Reform Committee. It is a very delicate balance and compromise, and I would urge my colleagues to not tamper with what 

I think is a very well put-together proposal that stands on its own. 

I know we are going to hear testimony on various issues today, 

but I would just stress the fact that Mr. Davis has worked for 

many years for us to get to this point, and I hope we don’t blow 

it. 

Thank you, Mr. Chairman. 

Mr. CHABOT. Thank you. The gentleman yields back. 

Without objection, all Members will have 5 legislative days to 

submit additional materials for the hearing record. 

Mr. CHABOT. And I would like to now introduce formally our distinguished panel here this afternoon. 

11

Our first witness is Governor Jon M. Huntsman, Jr., of the State 

of Utah. 

Mr. Cannon, was there anything else you wanted to say prior to 

me introducing the governor here? 

Mr. CANNON. Let me just reiterate what a great governor Utah 

has. 

Mr. CHABOT. Okay, thank you, excellent. 

Governor Huntsman was elected to his position in 2004, where 

he represents the 2.5 million residents of Utah that would enjoy a 

new Representative under H.R. 5388. 

As Governor Huntsman will testify, the issue of obtaining an additional Representative has been extremely important to his State, 

to the point that they litigated the issue all the way up to the 

United States Supreme Court. 

We welcome you here this afternoon, Governor. 

Our second witness is Dr. John C. Fortier, who is a research fellow at the American Enterprise Institute, where he focuses his 

studies on American Government. Dr. Fortier received his bachelor’s degree from Georgetown University and earned his doctorate 

from Boston College. 

We welcome you here this afternoon, Doctor. 

Our third witness is Adam Charnes, who is a partner at the law 

firm of Kilpatrick Stockton, LLP, in Winston-Salem, North Carolina. Prior to that, Mr. Charnes served as Deputy Assistant Attorney General in the office of legal policy at the Department of Justice. He received his bachelor’s degree from Princeton University 

and his law degree from Harvard Law School. 

We welcome you this afternoon, Mr. Charnes. 

Our fourth and final witness is Professor Jonathan Turley, of the 

George Washington University Law School. Professor Turley is a 

nationally recognized legal commentator and constitutional scholar. 

He is a graduate of the University of Chicago and Northwestern 

University School of Law. 

And we welcome you here this afternoon, Dr. Turley. 

Before we get started with our testimony this afternoon, I just 

want to reiterate the rules that we have in the Committee. Most 

of you are probably familiar with the 5-minute rule. 

We have a lighting system on there. Each of you will be given 

5 minutes. We would ask you to stay within that time. The green 

light will be on for 4 minutes. A yellow light will come on to let 

you know you have a minute to wrap up. And the red light will 

come on, and we would ask you to please try to complete your testimony by that time or very close to the light coming on. 

They are kind of small, so it is a little hard to see them. We used 

to have big lights. That was old technology. It was real easy to see. 

And now we have got these modern, small lights that you can’t see. 

What the reasoning for that was is beyond me. 

But those are basically the rules within which we would ask you 

to follow. 

It is also the practice of this Committee to swear in all witnesses 

appearing before us. So if you would, if you would all four please 

stand and raise your right hand. 

[Witnesses sworn.] 

Mr. CHABOT. All witnesses have indicated in the affirmative. 

12

We, again, thank you for your attendance and your testimony 

here this afternoon. 

Governor, we will begin with you. And you will need to probably 

pull the mike a little closer and turn it on there. Thank you. 

TESTIMONY OF THE HONORABLE JON M. HUNTSMAN, JR., 

GOVERNOR OF UTAH 

Governor HUNTSMAN. Thank you, Mr. Chairman and distinguished Members of this Committee. It is an honor and privilege 

to be with you, along with Ms. Dorothy Hite, who I am honored to 

be with, as well, and want to thank her for her commitment to 

equality and civil rights during her career. 

I will confine my testimony to a brief discussion of why I believe 

this legislation will not only benefit the State of Utah, but will simultaneously promote democratic values inherent in our constitutional system. 

As I understand, H.R. 5388 takes a unique approach to a problem that has remained unresolved for most of our nation’s history. 

If enacted, this legislation would increase the size of the House by 

two votes, giving one to the District, the other to Utah, the State 

that should have received an additional seat in the wake of the 

2000 census. 

When I say that Utah should have received the additional seat 

following the 2000 census, I am referring to two separate errors 

committed by the Census Bureau in 2000, each of which improperly deprived our State of a fourth seat. 

The first such error involved the bureau’s use of a statistical procedure known as hot deck imputation, which I believe violated the 

spirit, if not the letter, of the Census Act. 

The second error involved the bureau’s decision to count Federal 

employees residing temporarily overseas, while arbitrarily refusing 

to count other similarly situated Americans living outside the 

United States. 

Although this bill does not address either of those errors directly, 

it addresses both of them indirectly by awarding Utah the seat that 

it should have received in 2002. The loss of that seat has cost Utah 

in many ways over the last 6 years. 

In spite of the fact that we are large enough to merit a fourth 

Member of Congress, the State has been spread thin, with only 

three Members to represent the State’s ever-growing population. 

That extra Member would have been able to serve on other House 

Committees and begin the process of gaining seniority and influence within the House. 

Following 2000, the Census Bureau certified our State’s apportionment population to be roughly 2.2 million, which today has 

grown well beyond 2.5 million. Obviously, the citizens of the State 

would be better served if each Member only had to serve 559,000, 

as opposed to 850,000. 

Last December, the Census Bureau reported that Utah was the 

fifth fastest growing State in the union. The estimate stated that 

Utah grew by 2 percent from July of 2004 to July of 2005. 

This sort of continued growth represents a State with a very 

challenging matrix of problems. Schools, transportation infrastructure, social services, emergency services can become a stress on a 

13

1 Had the Bureau treated all temporary expatriates alike by simply (a) not limiting its overseas enumeration to federal employees, or (b) excluding all non-U.S. residents from the census, 

Utah would have had a fourth seat beginning in 2002. 

very rapidly growing State. In each of these areas, having a fourth 

Member of Congress would greatly aid the State in delivering its 

message to the Federal Government here in Washington. 

Now, I welcome the fact that, if the legislation passes, Utah’s 

new seat would be elected on an at-large basis until 2012, when 

congressional redistricting would automatically take place based on 

population figures from the 2010 census. 

However, our objective, first and foremost, is to get a fourth district seat, even if that included early redistricting. 

In short, H.R. 5388 rights the wrongs that were committed in the 

2000 census, benefits those who suffered most as a result of those 

wrongs, and does so in a way that makes sense. 

I also want to add this point. I have not extensively studied the 

constitutionality of the D.C. House Voting Rights Act, but I am impressed and persuaded by the scholarship represented in this legislation. 

The people of Utah have expressed outrage over the loss of one 

congressional seat for the last 6 years. I share their outrage. I can’t 

imagine what it must be like for American citizens to have no representation at all for over 200 years. 

As a former trade negotiator, as an elected official, I recognize 

a finely balanced deal when I see one. Congress should try to address this problem in a fair and reasonable way. It is just the right 

thing to do. 

And in conclusion, let me thank all of you on both sides of the 

aisle who have worked so diligently to bring us to where we are 

today. 

Thank you, Mr. Chairman. 

[The prepared statement of Governor Huntsman follows:]

PREPARED STATEMENT OF THE HONORABLE JON M. HUNTSMAN, JR. 

Good afternoon Mr. Chairman and distinguished Committee members. Thank you 

for requesting that I testify today on H.R. 5388, the District of Columbia Fair and 

Equal Voting Rights Act of 2006. I will confine my testimony to a brief discussion 

of why I believe this legislation would not only benefit the State of Utah, but would 

simultaneously promote democratic values inherent in our constitutional system. As 

I understand it, H.R. 5388 takes a unique approach to a problem that has remained 

unresolved for most of our nation’s history. If enacted, this legislation would increase the size of the House by two seats, giving one to D.C. and the other to Utah, 

the State that should have received an additional seat in the wake of the 2000 census. 

When I say that Utah ‘‘should have received’’ the additional seat following the 

2000 census, I am referring to two separate errors committed by the Census Bureau 

in 2000, each of which improperly deprived our State of a fourth seat. The first such 

error involved the Bureau’s use of a statistical procedure known as ‘‘hot-deck imputation,’’ which I believe violated the spirit, if not the letter, of the Census Act. See

13 U.S.C. § 195 (prohibiting ‘‘the use of the statistical method known as ‘sampling’ 

in carrying out the provisions of this title’’); but see Utah v. Evans, 536 U.S. 452, 

473 (2002) (holding that ‘‘the statutory phrase ‘the statistical method known as sampling’ does not cover the [Census] Bureau’s use of imputation’’); see also id. at 480 

(O’Connor, J., dissenting) (‘‘I would find that the Bureau’s use of imputation constituted a form of sampling and thus was prohibited by § 195 of the Census Act.’’). 

The second error involved the Bureau’s decision to count federal employees residing 

temporarily overseas, while arbitrarily refusing to count other, similarly situated 

Americans living outside the United States.1

14

Although this bill does not address either of those errors directly, it addresses 

both of them indirectly by awarding Utah the seat that it should have received in 

2002. 

I welcome the fact that, if the legislation passes, Utah’s new seat would be elected 

on an at-large basis (rather than from a specific district) until 2012, when congressional redistricting will automatically take place based on population figures from 

the 2010 census. I consider that a significant benefit because redistricting—which 

is always a difficult, time-consuming, and politically costly process—would be especially undesirable at this point in time, less than four years before the next decennial census. 

In short, H.R. 5388 rights the wrongs that were committed in the 2000 census, 

benefits those who suffered most as a result of those wrongs, and does so in a way 

that makes sense. 

Thank you for this opportunity to testify. The State of Utah and its 2.5 million 

residents deserve and welcome the chance to have an additional seat in the House 

of Representatives.

Mr. CHABOT. Thank you very much, Governor. 

Dr. Fortier, you are recognized for 5 minutes. 

TESTIMONY OF JOHN FORTIER, RESEARCH FELLOW, 

AMERICAN ENTERPRISE INSTITUTE 

Mr. FORTIER. Thank you, Chairman Chabot and Ranking Member Nadler and Members of the House Judiciary Subcommittee, for 

inviting me to testify on a very important issue of representation 

in Congress for the District of Columbia. 

In particular, we are discussing the District of Columbia Fair 

and Equal House Voting Rights Act of 2006, which has been ably 

described by several Members of the Committee. 

I wrote a column in The Hill newspaper, my weekly column, on 

this bill back in the spring, and I called it ‘‘Much Needed, Ingenious, and Blatantly Unconstitutional.’’ While I meant that to be 

provocative, I stand by all three of those statements. 

I think, first of all, the bill is much needed. Representation for 

the District is much needed. It is a great injustice that over half 

a million citizens living in the shadow of the Capitol are not represented by full voting Representatives and by Senators. So the 

aim of the bill is just right. 

Second, the bill is ingenious or it is politically savvy, in a way 

that has been described up here. We have political concerns of Republicans and Democrats which have been finely balanced. 

And on this score, I don’t believe that Congress has overstepped 

its bounds by expanding the House or by creating the at-large district. I would agree with the remarks of Governor Huntsman. 

But at the end of the day, I do not believe that this approach is 

constitutional. And this, unfortunately, means that we are left with 

several ways to give representation to the District, but all of them 

are very difficult, difficult to achieve. 

Congress could admit the District as a State. Congress could, 

with the consent of Maryland and the District, retrocede the District to Maryland, as was done in Virginia in the 19th century, or 

we could amend the Constitution. Difficult options, all of them, but 

I believe the only three alternatives to get to a just end. 

So why do I believe that H.R. 5388 is unconstitutional? For one 

simple reason: Congress does not get to decide what bodies are represented in the House and the Senate. It is the Constitution that 

decides that, and the Constitution has decided that. 

15

Over and over in the Constitution, it is clear that only States 

may have Representatives in the House and the Senate. The textual references are many, but the first is the most obvious. The 

House of Representatives shall be composed of Members chosen 

every second year by the people of the several States. 

Each State is also guaranteed a Representative. The franchise in 

each State must be equal to that of the State’s most popular part 

of their State legislature. 

And even in one instance, the Constitution prescribes that the 

House should vote by State. That is, in the case of the Electoral 

College, if there is no majority, a pick of the President of the Electoral College, it goes to the House, and the House votes by State 

and the quorum is determined by State. 

Again, no reference to other bodies being represented in Congress, no territories, no other entities. It is States that are represented and the people of the States in the Constitution. 

The proponents of the approach in the bill before us today rely 

heavily on the Seat of Government Clause, a clause that gives Congress great power of the District. But, in fact, this provision should 

best be understood as the power to govern the District, as a State 

would govern its own territory. 

What is being done to it is it is being stretched to override other 

constitutional provisions in the name of the welfare of the District, 

and here is where I think the interpretation of that clause goes 

wrong. 

If we were to accept this power, which is broad, but accept it, as 

the proponents would argue, Congress could give representation to 

the Senate by simple legislation. They could have granted voting 

in the presidential election, as was done in the 23rd amendment, 

by simple legislation and not by constitutional amendment. 

It would not be bound at all by proportionality. It could grant the 

District two Representatives or 10 or 436 Representatives. And if 

you doubt that power, you look at the bill itself. As part of the delicate compromise, the bill limits the District to one Representative, 

no matter what population has. If the District grows substantially, 

it still only gets one Representative in the bill before us. 

And then if Congress can create the Representative, it can also 

take that Representative away by legislation. Imagine having a 

Representative for the District of Columbia and a tough votes 

comes by and then Congress decides to punish the District and the 

Representative by withdrawing that seat, again, by simple legislation. 

For all these reasons, I think the more legitimate methods, the 

more difficult methods are the way to go in giving representation 

to the District in Congress. 

Finally, I will add that the Territories Clause would be analogous 

to the Seat of Government Clause that we rely on here. If Congress 

may do so for the District, they may do so also for the territories, 

and the territories vary widely in size. We could give a Representative to small islands with a population of a couple hundred people 

or larger territories with certainly much less than a traditional 

congressional district. 

So the unfortunate conclusion of my testimony is that, while the 

aim of the legislation is just, we have other courses of action that 

16

1 John C. Fortier, ‘‘DC Colony,’’ The Hill, May 17, 2006. 

we are going to have to take because they are legitimate constitutional options. 

Thank you, Mr. Chairman. 

[The prepared statement of Dr. Fortier follows:]

PREPARED STATEMENT OF JOHN FORTIER

Thank you Mr. Chairman, Mr. Ranking Member, and members of the subcommittee for inviting me to testify on the important subject of voting rights for 

residents of the District of Columbia. 

The purpose of this hearing is to explore H.R. 5388 the ‘‘District of Columbia Fair 

and Equal House Voting Rights Act of 2006’’ which creates a House seat for the District of Columbia. 

H.R. 5388 would increase the size of the House to 437 members. It treats the District of Columbia as a district that will be represented in the House. It also calls 

for a second new district to be located in Utah, as Utah narrowly missed out on a 

seat in the last re-apportionment. That Utah district would be an at-large district, 

and the three current Utah districts would remain intact. After the next reapportionment, the District of Columbia would still be considered a district with a representative, and the remaining 436 seats would be apportioned among the states 

based on the current method of apportionment. 

I wrote my weekly column in the Hill on this bill last spring, which I described 

somewhat facetiously as ‘‘much-needed, ingenious, and blatantly unconstitutional.’’ 1

I say somewhat facetiously because even though the sentence had a provocative 

tone, I believe all three of these descriptions of H.R. 5388 are true. First, a proposal 

to grant the citizens of the District the right to vote for congressional representatives is much needed. It is an injustice that for over two hundred years District residents have not had congressional representation. Second, H.R. 5388 is ingenious in 

the way it balances the partisan concerns of Republicans and Democrats that arise 

over such an issue. Third, as much as I agree with the aim of the legislation and 

admire the political savvy of its authors, H.R. 5388 is not the answer to the District’s problems. The central premise that Congress can by simple legislation create 

a representative for the District is wrong. The Constitution, not Congress, has determined that the House and Senate will be made up of representatives of states and 

states alone. Congress can no more change the Constitution on this matter by simple legislation than it could repeal the first amendment or allow sixteen year olds 

to serve as president.‘

The unfortunate conclusion of my remarks is that because H.R. 5388 is not constitutional, the road to representation for DC residents is difficult. There are three 

legitimate ways to accomplish this end: (1) to admit the District as a state into the 

United States; (2) to ‘‘retrocede’’ the District to Maryland; (3) to amend the constitution to allow DC to retain its current status but also grant it representation in Congress. All are legitimate means to a just end, but all would face significant political 

opposition. 

IT IS AN INJUSTICE THAT DC RESIDENTS ARE NOT REPRESENTED

IN THE HOUSE AND SENATE

The District of Columbia has over 500,000 residents. Only in the past forty years 

have they been entitled to vote in presidential elections. They have no full voting 

representatives in either the House or the Senate. 

While residents of U.S. territories also have no voting representation in Congress, 

the case of the District is even more compelling. The seat of government has been 

here since 1800, but DC has all the while been unrepresented in Congress and has 

watched as many territories have become states and now enjoy representation in 

Congress. The District is integrally connected to the U.S., not separated by ocean 

or language from the fifty states. 

One should not quarrel with the message on the District’s license plate, ‘‘taxation 

without representation.’’ The message is essentially correct. 

THE INGENUITY AND POLITICAL SAVVY OF THE DAVIS/NORTON PROPOSAL (H.R. 5388)

The Davis/Norton proposal tries to address the partisan political concerns of 

Democrats and Republicans over the issue of DC representation. In all likelihood, 

the District would elect a Democratic representative. To balance this, the proposal 

adds an additional representative to Utah, which barely missed out on a fourth repVerDate 0ct 09 2002 12:15 Nov 16, 2006 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 G:\WORK\CONST\091406\29872.000 HJUD1 PsN: 29872
17

resentative last re-apportionment. At least until the next apportionment, one of the 

two new seats created would likely be represented by a Republican and one by a 

Democrat. The bill also provides that the new Utah representative would be elected 

at-large and that the existing districts in Utah will remain the same until the next 

apportionment and redistricting. This was again done to delicately balance political 

concerns, as Utah Democrats worried that a new redistricting might adversely affect 

the district lines of Utah’s sole Democratic Representative. 

While this arrangement is unusual, I see no constitutional objection to it. Congress may increase the size of the House to 437 by simple legislation. The at-large 

district is temporary. And it is well within Congress’s power to regulate the time, 

place and manner of elections and therefore to prescribe such an at large district. 

Congress has previously weighed in legislatively to require that states employ single 

member districts, but it is within Congress’s power to alter that judgment overall 

by allowing or even requiring at large districts. It may also carve out a specific exception to its general rule requiring states to create single member districts as H.R. 

5388 proposes to do. 

Overall, the provisions of H.R. 5388 that increase the size of the House and the 

creation of an at-large district are well thought out and constitutionally 

unobjectionable. 

WHY H.R. 5388 IS UNCONSTITUTIONAL

The Constitution clearly indicates that Congress shall be composed of representatives from states and states alone. Congress itself does not determine the makeup 

of Congress, it is the Constitution that makes that determination. Of course, Congress would play an important role in the admission of states, in the retrocession 

of the District to the state of Maryland, and in the constitutional amendment process. But through the normal legislative process, Congress cannot get around the 

Constitution’s clear language that both the House and the Senate are composed of 

representatives from states and states alone. 

The textual evidence in the Constitution that the people of states are to be represented in the House and Senate is extensive:

‘‘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.’’

‘‘No person shall be a Representative who shall not have attained to the age 

of twenty five years, and been seven years a citizen of the United States, and 

who shall not, when elected, be an inhabitant of that state in which he shall 

be chosen.’’

‘‘each state shall have at least one Representative′′

‘‘When vacancies happen in the Representation from any state, the executive 

authority thereof shall issue writs of election to fill such vacancies.’’ [Article I, 

Sec.2, (my emphasis)]

There are many similar references to states in Article I, section 3 of the original 

Constitution which describes how state legislatures were to choose senators. The 

seventeenth amendment which was ratified in the early twentieth century and 

which provided for a popular vote for senators also indicates that it is the people 

in the states who are to be represented in the Senate:

‘‘The Senate of the United States shall be composed of two Senators from each 

state, elected by the people thereof, for six years; and each Senator shall have 

one vote. The electors in each state shall have the qualifications requisite for 

electors of the most numerous branch of the state legislatures.’’

‘‘When vacancies happen in the representation of any state in the Senate, the 

executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive 

thereof to make temporary appointments until the people fill the vacancies by 

election as the legislature may direct.’’ [Amendment XVII (my emphasis)]

The Constitution also provides that states will have the power to regulate elections, although Congress may alter those regulations:

‘‘The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.’’ [Article I, 

section 4 (my emphasis)]

18

2 41 F.3d 623 No. 93-5109

Finally, the Constitution prescribes an instance when the votes in Congress will 

be counted by state delegation rather than by individual members. If no presidential 

candidate receives a majority of the votes of the presidential electors, the House is 

called upon to choose the president from among the top three candidates. Under 

these circumstances, a quorum shall be representatives from two thirds of the 

states, not of the members themselves. And the vote to select a president shall require a majority of state delegations:

‘‘if no person have such majority, then from the persons having the highest 

numbers not exceeding three on the list of those voted for as President, the 

House of Representatives shall choose immediately, by ballot, the President. 

But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist 

of a member or members from two-thirds of the states, and a majority of all 

the states shall be necessary to a choice.’’ [Amendment XII (my emphasis)]

The textual evidence that Members of the House and Senators shall be representatives of people in states is overwhelming. It is not described by a throwaway or 

ambiguous line in the Constitution, but pervades the whole text. The framers of the 

original Constitution and of later amendments were crystal clear that representation in Congress was for people in states. They knew of the case of territories (The 

Northwest Territory was in existence prior to the ratification of the Constitution) 

and made provisions for Congress to administer them. They included constitutional 

provisions for the creation and governance of a district for the seat of government, 

but they never provided for representation in Congress for territories or the seat of 

government. 

SELECTED HISTORY OF ATTEMPTS TO GIVE REPRESENTATION TO THE DISTRICT

Numerous efforts have been made to give representation to the District of Columbia. 

In two prominent cases, proponents of these efforts sought to amend the constitution, but did not pursue a simple legislative strategy that is urged by H.R. 5388. 

The enactment of the 23rd amendment gave District residents the right to participate in presidential election. Using the logic that is behind H.R. 5388, Congress 

could have achieved the same result by legislation, using the Seat of Government 

Clause as a justification for passing a simple piece of legislation to grant DC residents the vote in presidential elections. If such an option were legitimate, why 

would the proponents of the 23rd amendment have spent the significant time and 

energy needed to secure 2⁄3 votes in both houses of Congress and spent nearly a year 

seeking ratification in three quarters of the states? 

Similarly, a major effort to grant DC residents the right to vote in congressional 

elections was proposed in the form of a constitutional amendment that passed both 

houses of Congress in 1978. Proponents of this measure then pursued the matter 

in state legislatures but failed to secure ratification in three quarters of the states. 

After seven years had elapsed, as the amendment prescribed, the ratification failed. 

Again, why would the proponents of representation for DC have used such a long, 

arduous, and ultimately unsuccessful process if the whole matter could be resolved 

by simple legislation? 

In addition to these two efforts to amend the Constitution to give representation 

to the District, consider also the attempt in the 103rd Congress to give delegates 

from the District and territories the right to vote in committee and in the committee 

of the whole. The House changed its rules to this effect. Why would the proponents 

of representation for DC and the territories have sought only these changes? Why 

would they have not proposed full voting privileges for delegates, making them essentially equal in status to representatives from states? 

The answer is given in part by Michel v. Anderson.2 When some members of Congress sued claiming these rules changes went too far, the DC Circuit Court affirmed 

the change in rules, but noted that it passed constitutional muster because it did 

not give the essential qualities of representatives to delegates. In a nutshell, it was 

acceptable to allow delegates to participate in all the deliberations and secondary 

votes in committees including the committee of the whole as long as their votes 

would not be decisive on votes on the final passage of bills. 

In short, proponents of representation for DC have worked long and hard to pass 

constitutional amendments or have settled for less than full privileges for delegates 

because they did not believe that a simple legislative solution was legitimate. 

19

3Testimony of the Hon. Kenneth W. Starr before the House Government Reform Committee, 

2154 Rayburn House Office Building, Washington, D.C., June 23, 2004, p. 4. See also Viet Dinh 

and Adam Charnes, ‘‘The Authority of Congress to Enact Legislation to Provide the District of 

Columbia with Voting Representation in the House of Representatives.’’ November 2004 found 

at http://www.dcvote.org/pdfs/congress/vietdinh112004.pdf 

THE SEAT OF GOVERNMENT CLAUSE

The proponents of granting the District representation by simple legislation rest 

much of their case on the clause in Article I that grants Congress the power to control the affairs of the District.

‘‘Congress shall have the power...to exercise exclusive Legislation in all Cases 

whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of 

the Government of the United States.’’ [Article I, sec. 8]

Clearly, the power granted to Congress over the District is broad in scope. But 

this power is best understood as the power to govern the affairs of the District as 

a state government would govern over its territory. Congress has even somewhat 

greater power over the District than a state government has over its territory, as 

it is not subject to some of the restrictions the Constitution places on states. For 

example, Congress could coin money for the District, if it deemed that course of action wise, as the Constitution prevents states from coining money, but does not impose a similar restriction on the governance of the District. 

But what cannot be done under the Seat of Government clause is to grant the 

District powers that override other constitutional language. The Seat of Government 

Clause cannot be an excuse to use simple legislation to amend the constitution 

through the back door. 

This is, however, what proponents of the Davis/Norton approach propose to do. 

They describe the Seat of Government Clause as ‘‘majestic in scope.’’ 3 It is described 

in such grandiose terms that Congress might use the Seat of Government Clause 

for any end as long as it relates o the welfare of the District’s residents. 

If this power is as broad as proponents suggest, then Congress could have granted 

District residents the right to participate in the election of a president by simple 

legislation rather than through the 23rd amendment. Under this broad interpretation Congress could give the District representation in the Senate. 

Again under this interpretation of the Seat of Government Clause, there is no reason why Congress would be limited to providing representation to the District that 

is proportional to its population. While states would be subject to apportionment for 

their representatives, Congress could give the District two representatives, or ten, 

or four hundred thirty six. In fact, the H.R. 5388 deviates from proportionality by 

mandating that the District will never have more than one representative in the 

House no matter how large its population grows. 

Similarly, there is no reason why such a broad power would be limited by constitutional provisions that give two senators to each state; Congress might grant the 

District as many senators as it saw fit. Congress might eliminate age or citizenship 

requirements for District representatives. 

Under such a broad interpretation almost every constitutional provision would fall 

if Congress were to act in its capacity to govern the affairs of the District. 

In addition to the constitutional problems arising under such a broad interpretation of the Seat of Government Clause, consider a practical one. Since Congress has 

created the District of Columbia’s seat in the House, it could take it away by legislation. Suppose the majority party wanted to punish the District or the particular representative of the District, Congress could pass a law abolishing the office. Congress 

does not have the power to take away all representation from any state, as the Constitution guarantees each state at least one representative. But the District’s seat 

would rest on the whim of the legislature. 

TREATING THE DISTRICT AS A STATE

The fallback position for those advocating the use of the Seat of Government 

Clause as a basis for giving representation to the District is that Congress has the 

power to treat District as a state, as it has done in certain pieces of legislation and 

as courts have held in certain instances, and therefore it may convey upon the District all of the attributes of statehood, including right to be represented in Congress. 

But if the Seat of Government clause is broad enough to allow Congress to ignore 

the many clear textual references that only the people in states are represented in 

Congress then why would this clause be limited to treating the District as a state 

and then abiding by other constitutional language? 

20

4 337 U.S. 582 (1949). 

It is true that in certain contexts Congress and the Courts have treated the District as a state. But variety of circumstances in these cases does not point to a general rule that Congress may treat the District of Columbia as a state. The central 

case of National Mutual Insurance Company of the District of Columbia v. Tidewater Transfer Company 4 illustrates the divisions on this issue rather than the 

ensus. The case was decided 5-4 and the opinion upheld a law that allowed District 

residents access to federal courts in diversity suits. However, only two justices held 

the view that the District should be treated as a state. Three justices in the majority 

upheld the law, but explicitly refused to consider the District as a state. They instead relied on the Seat of Government Clause, but did not argue that the clause 

treated the District as a state. 

TERRITORIAL JURISDICTION

As the Seat of Government Clause pertains to Congress’s power over the District 

of Columbia, so the Territorial Clause pertains to Congress’s similar powers over 

territories:

‘‘The Congress shall have power to dispose of and make all needful rules and 

regulations respecting the territory or other property belonging to the United 

States.’’ [Article IV, sec. 3]

The language of the Territorial Clause is different than that of the Seat of Government Clause, but it is no less ‘‘majestic’’ in its scope. The logical way to interpret 

this clause is to read it as Congress having the power to govern the territory as a 

state government governs its own territory. Even though the language is not identical, in practical effect, Congress under the Territorial Clause should have the same 

role in governing the territories as it does in governing the District under the Seat 

of Government Clause. 

But if the Seat of Government Cause is to be read so broadly as to allow Congress 

to provide representation for the District in Congress, then surely Congress could 

provide the same representation for the territories under a similarly broad reading 

of the Territories Cause. This power would not only apply to organized territories 

or territories that currently have delegates in Congress, but would apply to all territories. And the territories vary widely in population. Puerto Rico has nearly 4 million people and would qualify for five or six representatives in the House if it were 

a state, but most of the territories are significantly smaller. The population of the 

Northern Mariana Islands, for example, is approximately 80,000. Wake Island is inhabited by approximately 200 civilian contractors. Does Congress have the power to 

grant these territories representation in Congress by a simple act of legislation 

under the guise of governing the territories? 

CONCLUSION

The residents of the District of Columbia deserve congressional representation. 

Unfortunately, the legitimate means for granting that representation are very difficult to pursue. There does not seem to be strong political sentiment in favor of 

statehood for the District, retrocession of the District to Maryland or a constitutional amendment granting DC congressional representation. Nevertheless, they are 

the only legitimate alternatives to get congressional representation for District residents. 

The ‘‘District of Columbia Fair and Equal House Voting Rights Act of 2006’’ has 

its heart in the right place, but it will not pass constitutional muster. It too easily 

glosses over the numerous textual references in the Constitution that grant representation only to the people of states. And it builds on a foundation of a much 

too expansive view of the Seat of Government Clause which might have many adverse consequences if applied in different contexts.

Mr. CHABOT. Thank you very much, Doctor. 

Mr. Charnes, you are recognized for 5 minutes. 

TESTIMONY OF ADAM H. CHARNES, ATTORNEY, KILPATRICK 

STOCKTON LLP 

Mr. CHARNES. Thank you. Good afternoon, Mr. Chairman, Ranking Member Nadler and other Members of the Subcommittee. I appreciate very much the opportunity to discuss the constitutionality 

21

of H.R. 5388, the ‘‘District of Columbia Fair and Equal House Voting Rights Act of 2006.’’

I believe that it is likely that the courts would hold the Congress 

indeed possesses the constitutional authority to enact legislation, 

providing that the District of Columbia be considered a congressional district for purposes of representation in the House of Representatives. 

The source of this authority is the Constitution’s District Clause, 

which is article I, section 8, clause 17. The District Clause authorizes Congress to establish the District as the seat of Government, 

and it empowers Congress to ‘‘exercise exclusive legislation in all 

cases whatsoever over such district.’’

The courts repeatedly have held that the District Clause gives 

Congress extraordinary and plenary power of the District. Indeed, 

as one court explained, Congress has ‘‘full and unlimited jurisdiction to provide for the general welfare of citizens within the District of Columbia by any and every act of legislation which it may 

deem conducive to that end.’’

In short, Congress’s authority under the District Clause is so expansive that it encompasses the power to provide D.C. residents 

with a Representative in the House. 

While downplaying the District Clause, those who take the position that this bill is unconstitutional principally rely on article I, 

section 2, clause 1 of the Constitution. As was just noted, that provision states that the Members of the House shall be ‘‘chosen every 

second year by the people of the several states.’’

Critics of the bill claim that the use of the word ‘‘state’’ in this 

provision means that only citizens in the 50 States can be represented by a voting Member of the House. 

While this argument has superficial appeal, upon close inspection, I believe that it overlooks history, it overlooks prior judicial 

interpretations of the word ‘‘states’’ as used in other provisions of 

the Constitution, and it overlooks other legislation that prevents 

disenfranchisement from congressional representation of U.S. citizens. 

In my remaining time, I will briefly summarize the basis for 

these conclusions. 

First, as to history, in 1790, Congress accepted the cessions of 

land by Maryland and Virginia to create the District. Thus, as of 

1790, residents within the District were no longer citizens of those 

States. 

Nonetheless, by statute, Congress provided that the laws of 

Maryland and Virginia would continue to apply. Thus, from 1790 

to 1800, residents within the District voted in congressional elections in Maryland and Virginia; not because they were citizens of 

those States, for they were not, but because Congress, acting under 

the District Clause, legislated that those States’ laws would apply, 

pending further congressional legislation. It is that precedent 

which I think this bill relies on. 

Second, critics of the bill ignore numerous instances in which the 

courts have upheld laws that treat the District as if it were a State 

for purposes of the Constitution. The most prominent example is 

the Supreme Court’s Tidewater case. 

22

The Constitution provides, of course, that Congress may grant 

Federal courts jurisdiction over lawsuits ‘‘between citizens of different states.’’ Despite this language, the Tidewater plurality held 

that the District Clause permitted Congress to expand the Federal 

courts’ diversity of citizenship jurisdiction to include disputes between citizens of a State and citizens of D.C. 

Third and finally, H.R. 5388 is directly analogous to the Uniformed and Overseas Citizens Absentee Voting Act. Some U.S. citizens living abroad are not citizens of any State under State law 

and, therefore, would not be permitted to vote in Federal elections. 

In order to prevent the disenfranchisement of such overseas citizens, Congress authorized them to vote in Federal elections in the 

last State in which they lived. 

Thus, Congress has already taken the step of giving the vote for 

House Members to U.S. citizens who do not fall within a hyper-literal interpretation of the phrase ‘‘people of the several states’’ in 

article I, section 2, clause 1. 

Again, Mr. Chairman, thank you very much for the opportunity 

to share these views with the Committee, and I look forward to answering your questions. 

[The prepared statement of Mr. Charnes follows:]

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PREPARED STATEMENT OF ADAM H. CHARNES


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Mr. CHABOT. Thank you very much. 

Professor Turley, you are recognized for 5 minutes. 

TESTIMONY OF JONATHAN TURLEY, J.B. & MAURICE C. SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW, THE GEORGE 

WASHINGTON UNIVERSITY LAW SCHOOL 

Mr. TURLEY. Thank you, Mr. Chairman, Ranking Member Nadler, Chairman Conyers, distinguished Members of the Committee. 

It is a great honor to come and testify before you today on such 

an important subject and to join such a distinguished panel. 

My whole life, I have gone to countless weddings, and I have always wondered whether anybody ever stood up at a wedding, when 

they invited anyone who would object to this marriage to come forward, and now I know. 

It is a very regrettable position to be in, because I have, as everyone, I believe, at this table has done, stated strong views that the 

current status of the District is nothing short of an outrage. It is 

a gross embarrassment to any democracy to have so many of our 

citizens without a vote in Congress. 

But this has long been a debate about means, not end. I have 

never met anyone who is comfortable with the status of the District. And I have concluded that H.R. 5388 is the wrong means. I 

believe that it is fundamentally flawed on a constitutional level. 

As hard as I have tried to come to an opposing position and to 

stay quiet as this marriage occurs, I have to respectfully but 

strongly disagree with the analysis put forward by Professor Dinh, 

Adam Charnes and Ken Starr. 

I also believe that the second part of this legislation involving the 

at-large district for Utah also raises some very difficult questions, 

legally. I am going to focus on the issue of the D.C. district in my 

oral testimony, but I have laid out both these positions in detail in 

my written testimony. 

The current position of the District is something of an historical 

anomaly, and with the passage of time, the original purposes of the 

District have receded. As you know, in 1783, the Congress was interrupted in its meeting in Philadelphia, as the chairman ably described. 

People like James Madison wanted to create a situation where 

Congress would no longer be ‘‘interrupted with impunity,’’ as he 

said. This was, indeed, one of the guiding purposes of the creation 

of the Federal enclave. It was not the only purpose. 

There was considerable debate about the Federal enclave and 

various reasons held forth for creating a non-State entity. To me, 

that legislative history is perfectly clear. The intention of the 

Framers was to create a non-State entity, and the non-voting status was part of that intent. 

So while the purposes have receded, in terms of why we went in 

this direction originally, the intent to create a non-State entity is 

quite clear. Moreover, I do not believe that simply because we have 

the symbolic purpose left—that is, the desire to have neutral 

ground for the seat of the Government—that it should be dismissed. 

I actually think that is an important reason and that the seat 

of Government should remain on neutral ground, should remain on 

50

a non-State entity. And, for that reason, I have advocated for what 

I have called a modified retrocession plan, where the District would 

be shrunk to a very small size, to the seat of Government, and the 

remainder receded to Maryland. 

I won’t go through the textual analysis, which is laid out in my 

testimony, but I do believe that article I is clear when it refers to 

people of the several States. I think it is clear on its face, and I 

think it is clear from the legislative history. 

I have gone through that history in my testimony to show that 

the non-voting status of the District was discussed regularly by the 

framers. It was viewed back then as an abomination. 

This is not a new thing. When it was first proposed, there were 

objections that a non-voting populous was an affront toward democratic traditions, and there were proposals back then to avoid that 

status which were rejected. 

Alexander Hamilton noted that eventually this District would 

grow to a size when we would have to inevitably give it a seat in 

Congress. He made a proposal to allow that to happen. That was 

also rejected. 

So you have text and you have legislative history, in my view, 

that is quite clear as to the intention behind these constitutional 

provisions. 

I also believe, however, that this is the wrong way to go. I have 

laid out various policy implications that I submit to you, but I will 

simply note that what Congress giveth Congress can taketh away. 

You are about to take one, frankly, grotesque curiosity of the District’s current status and replace it with another. You are going to 

create some type of half-formed citizen that can vote in the House 

for a non-State entity. I think it is a mistake. 

It will also be the only district that does not grow with the size 

of its populace. It also puts you on a very slippery slope in terms 

of what can happen in the future. It is not that I do not trust all 

of the Members in this room, but we all know that mischievous 

times lead to mischievous acts, and a future Congress may not be 

as restrained as you are. 

Once you cross this Rubicon, you will lay open, in my view, what 

was a very stable aspect of the Constitution and give it a fluid and, 

frankly, dangerous meaning. 

Unfortunately, my time has expired, and so I thank you again for 

allowing me to appear to today. 

[The prepared statement of Mr. Turley follows:]

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Mr. CHABOT. Thank you very much, Professor. 

We will now move to the questioning portion by the panel up 

here, and the Chair will yield himself 5 minutes for that purpose. 

And I will begin with you, Professor, if I can. Would you please 

elaborate on the alternative proposal for representation for D.C. 

that you have referred to and why you feel that it would be superior to H.R. 5388? 

Mr. TURLEY. Well, thank you, sir. 

There has always been a statement from the original act of 

ceding the land from framers and from courts that the District had 

two options available to it, Statehood or retrocession, and that appears regularly in history behind these provisions. 

In my view, retrocession is the most obvious way of dealing with 

this, and I also do not believe that it is such a horrible option. 

What I have suggested in the proposal I have laid out in the testimony is to restrict the District to the actual seat of Government, 

extending from Capitol Hill down to the Lincoln Memorial. The remainder would be retroceded to Maryland. 

But I have suggested a three-phase process in which the political 

retrocession would occur immediately, so that the District would 

immediately be able to vote with Maryland. 

You would then establish a commission, probably a three-person 

commission, much like the one that assisted George Washington, 

for the next two stages. 

The second phase would be to incorporate those aspects of law 

enforcement and public services that are necessary into Maryland. 

And the third stage would be the incorporation of any tax and revenue issues. 

When we have looked at this in my office, it does not seem insurmountable. And, indeed, Maryland could grant the District special 

status. It has that authority. It can grant the District special tax 

status. 

So the District can remain unique. But there remains this conceptual problem with replacing that D.C. with an MD, and that is, 

frankly, what we are dealing with here. 

But I don’t believe that symbolic barrier is enough to take this 

more risky course, because I believe if you take this course, it will 

be challenged and the District will not be able to gain from reform. 

It will be frozen in political amber until this is resolved, and I believe it could very well be struck down. 

Mr. CHABOT. Thank you very much, Professor. 

Dr. Fortier, I would like to turn to you, if I can. In your written 

testimony, you set forth a number of alternative proposals for 

achieving representation, also, for the District of Columbia. If you 

were a Member of Congress, which of the proposals set forth would 

you champion, and why? 

Mr. FORTIER. Well, the three proposals are to adopt the District 

as a State, to have some sort of retrocession, like Professor Turley 

mentioned, or to amend the Constitution. They all have variations 

in how you would do it. So I guess there are pluses and minuses. 

I do think the retrocession has the advantage of politically balancing the concerns that would come up better than the others in 

that the State of Maryland would still have two Senators, it would 

not change the balance in the Senate, and it would also, I suppose, 

78

not so quickly change the balance in the House, with a district that 

would have to be part of the District and part of Maryland. 

I think all of these are possibilities. They are all difficult. They 

are difficult to achieve. A constitutional amendment would be the 

cleanest one. The constitutional amendment would eliminate many 

of the problems with the other areas. 

I think Professor Turley, I am not sure how he would deal with 

this, but one of the difficulties with retrocession is what is left of 

the District, this small part of the District. We have the 23rd 

Amendment; the 23rd Amendment gives the District the right to 

vote in presidential elections. Some scholars have suggested that 

the President of the United States and the First Lady would be the 

two voters in that district and then get three votes in the Electoral 

College. 

Mr. TURLEY. And the twins. 

Mr. FORTIER. Those who lived at home, maybe the headmaster 

of the page dorms. You have a small number of people who live in 

the very small area. 

But I think these are technical questions that could be dealt 

with. I think we could not have a District. I think there are reasons 

for it, but I think that we could give up the idea of having the District. 

While I think it is symbolically beneficial to have the seat of Government or the small area that Professor Turley would recommend, 

I think it is not necessary to have that. If either the District became a State or if it were given back to Maryland, we could sort 

of abolish the smaller part. 

Mr. CHABOT. Thank you. I have only got about 20 seconds left, 

so rather than ask another question, which wouldn’t really have 

time to be answered, just let me explain what is going on, the bells 

and everything. 

We have a series of votes on the floor of the House now. There 

is going to be, we believe, three votes. The first one is a 15-minute 

vote, then two 5-minute votes after that. So it will be approximately a half-hour. 

Now, Mr. Nadler has indicated that he will, unfortunately, be unable to come back, but what he is going to do is yield his time to 

Ms. Eleanor Holmes Norton, so she will have that 5 minutes in 

order to ask questions in his place. 

So we will, at this time, be in recess. We will be back in approximately a half-hour. And I would encourage all Members to come 

back immediately after the third vote, if it all possible. 

We are in recess. 

[Recess.] 

Mr. CHABOT. The Committee will come back to order. Take a 

seat, please. 

I have been informed that Governor Huntsman and Professor 

Turley have to catch a 4:15 flight, both back to Utah. So I know 

your time is somewhat limited at this point. 

So I assume that all the witnesses would be agreeable to taking 

written questions, if all Members haven’t had time to ask. 

All four witnesses have indicated in the affirmative. 

Mr. Scott, you are recognized for 5 minutes. 

Mr. SCOTT. Thank you. Thank you, Mr. Chairman. 

79

Mr. Chairman, I just have a couple of concerns. First of all, when 

you have the Capital without voting representation, that makes no 

more sense than Richmond, Virginia, not having representation in 

the Virginia General Assembly. So I would hope that we can fix 

this glitch as soon as possible. We have a number of concerns. 

And since the gentlelady from Washington, D.C., is here, I would 

like to yield her the balance of my time, so that she can begin questions. 

Mr. CHABOT. The gentleman yields to the gentlelady from Washington, D.C. The gentlelady is recognized. 

Ms. NORTON. The gentleman from Virginia is very kind. 

I do want the Governor, before he leaves—I understand Mr. 

Charnes has agreed to stay. I think it is important for us to be able 

to have an exchange on this constitutional questions. 

But I do want to ask the Governor a question. A central feature 

of assuring what has always been the case whenever Congress has 

considered adding seats, which is that there be no advantage to one 

party or another, in order to follow that pattern that has taken us 

through the Civil War, free States, slave States, a pattern that has 

always been here. 

Chairman Davis and I have spent four hard years to, in fact, 

achieve absolute and total parity. We were informed yesterday for 

the first time that there may be an amendment that would take 

the basis for that bipartisanship away, it is one of the bases, but 

it was an important basis, by taking away the at-large seat. We, 

of course, have thoroughly vetted that. 

My question goes to your role as Governor. You have testified, 

without any prompting from us, we got this testimony just yesterday, where you testified that you understood that the seat would 

be on an at-large basis until 2012 and that you considered it—and 

here I am going to quote you, Governor—′′a significant benefit, because redistricting, which is always a difficult, time-consuming and 

politically costly process, would be especially undesirable at this 

point in time, less than 4 years before the next decennial census.’’

Could I ask you to tell us something about the redistricting process in Utah? If you could take us through what it would take. Understand, for the benefit of my colleagues on the panel, you go back 

after these 4 years to four seats, if you got the fourth seat. 

Governor? 

Governor HUNTSMAN. Thank you very much for the question. 

And I appreciate your earlier comments about this being truly a 

bipartisan undertaking. And I thought Representative Conyers described it quite well during his remarks, in terms of the construct 

of the room in which we find ourselves today and the many people 

who are interested in seeing this happen, both for the District and 

for the State of Utah. 

As I mentioned in my testimony, the at-large status is something 

that would be my preference, but I must tell you that I am the 

chief executive of a State that is growing very, very quickly and experiencing enormous change. So, therefore, I am here to argue that 

which is in the best interest of the people of Utah, and that is getting an extra seat for people today who are underrepresented in 

this body. 

80

Ms. NORTON. Just to intervene for a second. Neither Utah nor 

the District would get a seat if we do not have a bipartisan——

Governor HUNTSMAN. That is correct. Thank you for that, and I 

am glad that we are having this conversation, because we remind 

each other of that which one might forget. 

Just to get to your specific question, we have maps that are left 

over from the last decennial census of 2000, done, I think, 2001. 

I believe that there is one that even reflects a fourth district. 

And I think it would be important to look at that option, if, in 

fact, the requirement for getting a fourth district was that we had 

a district in place sooner rather than later, instead of waiting until 

2010 for the decennial numbers and then 2012 for the election. 

Ms. NORTON. And then redistricting would occur or not occur? 

Governor HUNTSMAN. The redistricting might occur. And I am 

here not to speak for my legislature, but rather those things that 

I think are in the best interest of our State—that is, getting a 

fourth district and moving quickly and fairly and objectively toward 

the creation of a fourth seat, even if we had to do it soon. And that 

would be convening a commission on redistricting, like the one that 

met in 2001, to, once again, create a new district. 

So one of two things: We could look at the old district that was 

created in 2001 for the fourth seat that never occurred. Or we 

could fairly rapidly convene another meeting of this commission in 

short order and, based upon the principles of fairness and objectivity, create a new fourth district. 

That would be my hope. Again, I can’t speak for the legislature, 

but I can give you my word that that is what I would hope for. 

Ms. NORTON. When that fourth district was created, was it as it 

is in many States, agreement by Democrats and Republicans for 

the way in which the districts were allocated? Did the Democrats, 

in other words, support——

Mr. CHABOT. The time has expired, but the Governor can answer 

briefly the question. 

Governor HUNTSMAN. It was a group made up of the legislature, 

representing the distribution politically of the Members. 

Ms. NORTON. Did it have bipartisan support? 

Governor HUNTSMAN. It was a bipartisan group that created the 

district. 

Ms. NORTON. Was there a vote on it? 

Governor HUNTSMAN. I believe that with the legislature being involved, that there was a vote, although I wasn’t there at the time, 

so I can’t speak definitively to that point. 

Mr. CHABOT. The time has expired. 

The gentleman from Michigan, the Ranking Member, Mr. Conyers, is recognized. 

Mr. CONYERS. Thank you, Mr. Chairman. 

Witnesses, I have never been so eager to come to a hearing and 

so disappointed to hear what at least half of you had to say about 

the subject matter. This has not been a good afternoon for me. 

Let me just ask Mr. Fortier. Am I correct that you have no objection to an at-large seat? You have no constitutional objection? 

Mr. FORTIER. No, I have no constitutional objection. The Congress would mandate that all States have at-large seats, as they 

now mandate that they have single-Member districts and they can 

81

make exceptions to that. So it would also be a relatively temporary 

matter, so no objection. 

Mr. CONYERS. Well, I feel just a little bit better, turning the dial. 

But, Mr. Charnes, what do you make of this afternoon? How do 

you make people like me, who walked in here in a totally positive 

mood, begin to say, ‘‘Wait a minute, what is going on here?′′

Now, we know that there will be constitutional objections. We 

know that there will be lawsuits. We know all that. But how can 

we get this thing back on track and let’s start moving down the 

road? 

Mr. CHARNES. Well, I think that these are difficult constitutional 

questions, but the courts—in some areas of the structural Constitution, the Supreme Court is very formalistic. In other areas, the 

Court has approached things more flexibly. 

And I think with respect to interpretation of the word ‘‘state’’ in 

various parts of the Constitution, as is laid out in my written testimony, the courts have been much more flexible. So I think that I 

am comfortable that there is a very good chance, and I think it is 

likely that the courts would uphold the treatment of the District 

as a district for the purposes of representation in the House of Representatives. 

And as you say, there is likely to be litigation, but there is litigation about a lot of things the Congress does. And that is sort of taking that in stride as part of the business of Congress. I don’t see 

any undue risk here that should give the Subcommittee pause in 

moving forward. 

Mr. CONYERS. Well, I don’t think so either, but that is my complaint. I mean, for goodness’ sakes, I guess we could have another 

hearing and pull together another set of witnesses. 

We have all practiced law or been lawyers or assumed to be constitutional experts. We have got to solve a historical, two-century 

problem. And the Governor comes out here all the way, and we are 

sitting around saying, ‘‘I am sorry, guys, I know you want to do the 

right thing, but it is just insuperable, it can’t be done. It won’t 

work.’’

Well, look, I am the most senior Member on this Committee, and 

I can tell you that we can find ways. That is our job, to find ways 

to make it work. That is what we are here for. 

And those of the people to whom I have to affix my attention at 

this moment in time, because I don’t want this hearing to go down 

as one that they started off, everybody agreed what ought to happen, and then they realized that this can’t happen, ‘‘There is no 

way, Congressman. We love your intentions. We know your heart 

is in the right place, but.’’ Well, I am one Member that cannot accept that. And I guess I am going to have to go back to my deep 

list of constitutional expertise and find ways to overcome it. 

Do you have any way of making me feel better, Governor, since 

you have come the furthest? 

Governor HUNTSMAN. I will be very short and to the point, Representative Conyers, because there is a plane waiting. I want it to 

be understood that this Governor is leaving this hearing room with 

a desire for real flexibility in terms of how we proceed as a State, 

so that the District is successful. 

82

We have all heard the arguments why the District should be successful—I think most in this room agree—and so that Utah is successful, as well. I don’t want it thought that we are going to be obstructionists. We are going to work with you and remain flexible 

in the days to come, so that we can get this done. 

And if it is any consolation, I just came in late last night, and 

I sense a real can-do attitude on the part of people who are in this 

room and beyond, along with the bipartisan group that has been 

put together in this Committee. And for me, Representative Conyers, that would give me a great sense of hope. 

Mr. CHABOT. The gentleman’s time has expired. 

Mr. CONYERS. That is wonderful. And I am so glad that you were 

able to join the panel today, and we will be looking forward to continuing working with you. 

Mr. CHABOT. Thank you. The gentleman’s time has expired. 

The Chair would note that we are going to go into a second 

round, but we will—if Members would like to talk for longer in the 

first, we can do that. But I want to accommodate the sponsor of 

the bill, Mr. Davis, so he has a chance to ask some questions. 

So I am going to recognize myself, and I am yielding my 5 minutes. 

Mr. DAVIS. Thank you. 

Governor, let me just ask you this question. As you know, our 

bill reported out an at-large. We think this works very well. That 

is the preferred mode. 

If somehow redistricting were put back in the lap of Utah, are 

you telling me that you would work to make sure that incumbent 

Members were involved and there would be no effort to gerrymander anyone’s partisan advantage? 

Governor HUNTSMAN. Fair and objective, that would be our approach. 

Mr. DAVIS. And you would work with the delegation, as well——

Governor HUNTSMAN. Yes, sir. 

Mr. DAVIS. —to make sure they were included in those discussions? 

I think that is important, should this go a direction that we don’t 

want it to go, and I just wanted to get that on the record. Thank 

you. 

Let me ask if anyone up here can give me an example where a 

Federal court has limited the authority of Congress under the District Clause. 

Mr. TURLEY. Well, not in the sense of striking down the law, but 

starting in 1805, with Hepburn, the court made clear where the 

Congress could not go, and the Congress did not go there. The 

court made clear in 1805 that this was created to be a non-State 

entity. And the court has repeatedly referred to the non-voting status of the District. So Congress hasn’t really pushed that envelope 

in the past. 

Mr. DAVIS. But there is no specific incident where Congress has 

acceded that and where the court has struck it down? 

Mr. TURLEY. Not until now, no. 

Mr. CHARNES. But, in fact, I think there are examples where 

Congress has regulated, for example, in the Commerce Clause. The 

Commerce Clause gives Congress authority to regulate commerce 

83

among the several States. And Congress has exercised that authority with respect to commerce across the district lines, and the court 

has upheld that. 

So I think there is authority to the contrary, as well. 

Mr. DAVIS. And there is a State Clause in the Constitution, 

right? So that is why they are interpreting constitutional terms. 

Mr. TURLEY. That is right. 

Mr. DAVIS. Let me ask you. Everyone here believes the city 

should get a vote in Congress, is that fair to say? We are just disagreeing as to the means. Is that a fair comment? 

Mr. TURLEY. It is for me. 

Mr. DAVIS. I would just note that all four witnesses indicated in 

the affirmative. 

And let me ask, one of the difficulties of retrocession—because 

we looked at this, it is an easy solution, but you are still stuck, as 

Chairman Chabot pointed out, with three electoral votes for whatever is left, whether it is the page dormitory, whether it is the 

White House, and it would take a constitutional amendment to 

change that. 

There is no other way around that, is there? 

Mr. TURLEY. I actually, in my testimony, deal with that and suggest that, indeed, there are. 

There is no question it would create another anomaly, but in my 

view, if you are not willing to repeal the amendment, then you can 

constructively repeal it. 

For example, under the proposal I suggested of creating that very 

small District of Columbia, just the seat of Government, the only 

residents it would contain would be the White House, which could 

be dealt with legislatively. 

But the amendment refers to Congress saying how the electoral 

votes will be established. And so Congress can simply not do that. 

It can go dormant, and I think that is achievable. There are other 

dormant aspects. 

Mr. DAVIS. But a lot of court cases have talked about ability of 

homeless people to move in and be registered and everything else. 

So it does open a can of worms. 

Mr. TURLEY. Well, actually, Congress can establish that there 

will be no residents, and, in fact, there cannot be. If you look at 

my proposal, it would just be actual Federal buildings. Homeless 

people cannot live in Federal buildings. It is already Federal jurisdictional land. So I think that you actually could force it into a dormancy even without a repeal. 

Mr. FORTIER. One could also simply not have a seat of Government. As much as there were original reasons for it, the retrocession could go back to Maryland. There could be no seat of Government. 

The 23rd Amendment would exist, saying that the District would 

get these votes, but there would be no District, essentially. So I 

think that would work. 

Mr. DAVIS. In Federalist Paper 43, James Madison specifically 

states about the District, ‘‘The state will no doubt provide in the 

compact for the rights and the consent of the citizens inhabiting 

the Federal district.’’

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So the Government would provide for the compact for the rights 

and the consent of the citizens in having a Federal district. That 

doesn’t sound to me like Madison thought the resident of a Federal 

district should have no Federal representation. 

And, in fact, when it was originally created, from 1790 to 1800, 

they were citizens among the several States, and they did vote. 

They voted with Maryland, and they voted with Virginia. 

Why wouldn’t Congress have that same authority to change it? 

Mr. TURLEY. Actually, I believe what Madison was saying is that 

when the land was ceded, there would be a negotiation with the 

affected States. 

In fact, Alexander Hamilton anticipated this, to put in a provision that said that the District residents could ultimately get a 

vote. But if you look at the Constitutional Convention, the ratification convention, it is perfectly clear in there that the understanding 

was they would not have a vote once the land was formally ceded. 

I think what Madison was saying is that the States themselves 

could negotiate this point as part of it. But repeatedly, as you see 

in my testimony, you have people that objected strenuously to the 

creation of this non-State entity without a vote in Congress. 

Mr. DAVIS. But there was no specific understanding that Congress couldn’t revisit this later, was there? 

Mr. CHABOT. The gentleman’s time has expired, but you can respond to the question. 

Mr. DAVIS. Any of you? 

Mr. TURLEY. In terms of that they could return to it, the answer 

is yes, in one sense, because there was an effort to put the word 

‘‘permanently’’ into the District Clause. That would have essentially forced the borders to remain rigid, and that was removed to 

give the Congress the ability. 

But I would suggest that that gave them the ability to relocate 

the Capital. That was the main concern. But it also gave them the 

ability to retrocede. 

Mr. CHABOT. The gentleman’s time has expired. 

The gentleman from North Carolina, Mr. Watt, is recognized. 

Mr. WATT. Thank you, Mr. Chairman. 

It looks like the Governor left, and that keeps me from being 

tempted to pick a fight with him. The fight was between Utah and 

North Carolina about this extra seat. [Laughter.] 

So I definitely wanted to go back at him about some of those 

things. So it is probably a good thing. 

Mr. CHABOT. Would the gentleman yield for a moment? 

Mr. WATT. That would be a side issue. 

Yes, sir. 

Mr. CHABOT. Yes, we did already get their okay to give them 

written questions. So you can make those questions as scathing as 

you would like. [Laughter.] 

Mr. WATT. Actually, I think it is an irrelevancy at this point, if 

Utah was next, which we concede. We don’t concede it should have 

been in front of North Carolina, but we do concede that it would 

have been the next in line after North Carolina, and I believe in 

representation. 

So it doesn’t hurt my feelings for Utah to get another Representative in Congress, just like it doesn’t hurt my feelings for the DisVerDate 0ct 09 2002 12:15 Nov 16, 2006 Jkt 000000 PO 00000 Frm 00088 Fmt 6633 Sfmt 6601 G:\WORK\CONST\091406\29872.000 HJUD1 PsN: 29872
85

trict of Columbia to get representation in Congress, because I think 

that is what our democracy is about. 

Now, I understand Mr. Turley is leaving soon, too, and there are 

people here who—I am still studying this issue, but there are people who have a lot more knowledge about it, so I am going to yield. 

How much time do I have? 

Mr. CHABOT. You have got 3 minutes and 40 seconds left. 

Mr. WATT. But you all passed over me in the first round, even 

though——

Mr. CHABOT. Plus you get another 5 minutes. 

Mr. WATT. Okay, so I will yield as much time, 6 minutes 

maybe—3 minutes to the gentlelady from the District and maybe 

the rest of my time to the gentlelady from Texas, who is not on the 

Subcommittee. 

Mr. CHABOT. The gentleman yields. 

Ms. NORTON. Thank the gentleman for yielding. 

I hope Mr. Turley won’t leave before I have a question for him, 

but I must ask this question first, because we learned yesterday, 

indirectly, that there may be an amendment that wipes away the 

at-large agreement that Republicans and Democrats have worked 

to achieve and that the basis for that amendment is that the people 

of Utah would have two votes. 

And I would like you to comment on the notion that somehow 

Utah—Utah, with an at-large Member, you get two votes and your 

vote is somehow expanded rather than diminished. 

Mr. TURLEY. I would be happy to. 

Ms. NORTON. I want all of you all to, but I certainly would like 

you to. 

Mr. TURLEY. The Utah portion of the bill is actually, in my view, 

a closer question, a very, very difficult one. And, as you know—you 

are an accomplished former academic and constitutional expert—I 

think you can recognize that this is an issue that has not gone before the Supreme Court. 

In the Supreme Court language, when it comes to one person, 

one vote, has always been pretty ambiguous. Now, in favor of what 

you are doing, quite frankly, the Supreme Court has accepted that 

there could be a 40 percent differential from a perfect district 

under one person, one vote. And I think that helps, because there 

is language there to say that they are not going to require the impossible of you. 

The concern I have about this, though, is that this is something 

we have never seen before. This district would be about 250 times 

the size of that perfect district mean, and in terms of population 

it would be about 2.2 million as opposed to about 640,000. 

But the other problem is that the court has said that they want 

to make sure that there is not a preferred class of voters, and, indeed, these voters would have two Representatives in Congress. 

Then my final concern is that people in Utah could object, because if they were to get their own district, it is very likely that 

Member would be different. For example, if this fourth district was 

coming out of Salt Lake City, my guess is that they would have a 

different type of Member representing different interests than an 

at-large seat. 

86

And so, all those issues go into the mix, and what it leaves me 

with, quite frankly, is great skepticism. 

Ms. NORTON. Skepticism. 

Mr. Charnes, would you respond to that? 

Mr. CHARNES. Sure. I think there is very little precedent on this 

point. The fact of the matter is the Supreme Court has not talked 

about State-by-State comparisons and one person, one vote. They 

have looked at districts within a State and have struck down some 

districts that are malapportioned. 

But here, I think there is very little precedent. As a practical 

matter, there are several States that only have one Representative, 

and the ratios will never work for those States, because you can’t 

adjust those. You can’t have a fraction of a Congressperson. 

So I don’t think there is a sufficient precedent for the Subcommittee or the Congress to be terribly concerned about the atlarge seat. There is great historical precedent for at-large seats. 

The first 50 years or so after the founding, there was almost a 

presumption that States would be represented with at-large Members of the House. Of course, there is no precedent for having a 

combination of the two, but as Dr. Fortier has mentioned, this is 

a transitional thing that will just be present for a few years. 

It is reasonable and Congress, under the Constitution, actually, 

has pretty broad authority to intervene in State districting matters 

under article I, section 4. 

Mr. CHABOT. The gentlelady’s time has expired. 

The gentleman had given the rest of his time, I believe, to Ms. 

Jackson Lee. 

Is that correct, Mr. Watt? 

Mr. WATT. Yes. 

Mr. CHABOT. We want to thank Professor Turley for his tremendous testimony this afternoon. 

Mr. WATT. Before the professor leaves, could I just clarify one 

thing? There is nothing constitutional about single-Member congressional districts. That is statutory, isn’t that right? 

Mr. TURLEY. The constitutional problem comes in the one person, 

one vote aspect, yes. 

Mr. WATT. So, theoretically, we could make a multi-Member district statewide, two Members, for this transition period, if this got 

cumbersome. 

Mr. TURLEY. I am not too sure I would subscribe to that. I would 

have to look at it. 

Mr. WATT. But there is certainly nothing in the Constitution. 

There is a statute that requires single-Member districts at the congressional level. It is statutory; it is not constitutional. 

In fact, I introduced a bill several years ago to give that discretion back to the States to terminate the statutory provision. So if 

we terminated that statutory provision, you could create a multiMember district for Utah. 

Mr. TURLEY. I would have to look at that, but the gravitational 

pull on that question is the Equal Protection Clause, and I am not 

too sure I would subscribe to it, but I would have to look at it. 

Thank you again for allowing me to appear. 

Mr. CHABOT. Thank you very much, Professor. 

87

Mr. WATT. I will get to you on the next round. I think you have 

probably a different opinion, maybe. 

Ms. NORTON. Mr. Turley, could you possibly stay for a moment? 

Mr. TURLEY. As long as you can order Delta not to——

Mr. WATT. We are on my second round. You all don’t squander 

my time now. 

Mr. TURLEY. I am afraid I have got a flight to Utah. 

Ms. NORTON. Mr. Turley, I have been yielded time just for this 

question, because your testimony said that Congress understood, as 

a defining element of the Federal district, that there would be no 

vote for the people who lived here, and you said, in return, they 

somehow get to live here and they ought to be grateful for it. 

In Mr. Charnes’s testimony, he seems to find a different intent 

and a different power that—and, here, I am going now to Mr. 

Charnes’s testimony. 

In effect, what you are saying is that Maryland and Virginia, in 

ceding land, understood that they would, in fact—the citizens, their 

citizens might lose the vote they had. 

Congress, in fact, passed legislation, according to Mr. Charnes, 

and then the States passed legislation guaranteeing that those voters in Maryland and Virginia would still have the vote. 

Do you really concede that the State of Virginia and the State 

of Maryland would have ceded land to the District of Columbia if 

they felt their residents would, as soon as it became the Nation’s 

Capital, lose their voting representation in Congress? 

Mr. TURLEY. I do, in the sense that, if you look at my testimony, 

you will see repeated statements by individuals at that time objecting to the status. In fact, right after the land was——

Ms. NORTON. You know they didn’t have to do it, that they were 

not compelled to cede the land. 

Mr. TURLEY. But right after they ceded the land, a retrocession 

movement began in Virginia, and, in fact, the issue of non-voting 

was the most recurrent theme there. People were objecting that 

this was despotism, that this was wrong. 

In fact, the debate that occurred back in the early 1800’s is the 

exact same debate we are having now. And I happen to just disagree with my learned colleague, because I don’t see how you read 

those debates, particularly when people are trying to suggest 

amendments that would allow the residents to vote and those 

amendments are not being taken up. 

And so this was an issue that was not just passed over. It was 

debated and rejected. 

But I have to beg your forgiveness. If I miss this flight, I will 

turn into a pumpkin. 

Mr. WATT. I am going to reclaim my time for the purpose of allowing you to go. 

Mr. TURLEY. Thank you very much. 

Ms. NORTON. Mr. Charnes, would you respond? 

Mr. WATT. Wait a minute. I have got to yield to Ms. Jackson Lee, 

because I am going to run out of time. 

Ms. JACKSON LEE. Let me go quickly, so my colleague can continue. Thank you. 

In the absence of the Governor, in the absence of Mr. Turley, let 

me, frankly, be very succinct in where I am going. 

88

I think Professor Turley was grounded on constitutional history 

and premise and the original desires of the Founding Fathers. 

Mr. CHABOT. The gentlelady’s time has expired. I am going to 

ask unanimous consent that the gentlelady be given 1 minute to 

at least make a statement. 

Ms. JACKSON LEE. In any event, the idea is that there is a necessity for one vote, one person. The District of Columbia does not 

have that. That is a crisis, a constitutional crisis in and of itself. 

My question to you: Congress can do what it wants to do, is that 

not correct? Mr. Charnes, Congress can craft this legislation. Obviously, it may be subjected to constitutional muster, but they can 

write this legislation as a compromise and pass it, is that not correct? 

Mr. CHARNES. That is correct. 

Ms. JACKSON LEE. It would not be subject to constitutional question in the midst of Congress’s work. 

And my last point is, then, my last point is, if there was the 

question of where you put the District of Columbia, we know, with 

no disrespect to Virginia, the referendum would not pass for it to 

go to Virginia. The referendum would not pass for it to go to Maryland. So, in essence, you box the District of Columbia in. 

There is no value to saying, ‘‘Don’t do anything,’’ because then 

you, again, ignore the rights of people to have one vote, one person. 

Is that not fairly—I mean, I know you can’t predict political votes, 

but there is no value to talking about inclusion into another State. 

I don’t see the constitutional vision for inclusion in other States. 

There is a constitutional provision for making another State. Is 

that not correct? 

Mr. CHABOT. The gentlelady’s time has expired. 

Ms. JACKSON LEE. Can he just answer that? 

Mr. CHABOT. Yes, the witness can respond. 

Mr. CHARNES. Well, I think that is right. I think the point you 

are getting to is you have got some alternatives that are very speculative that present varying degrees of political problems that suggest that they may never happen. 

And there is a proposal here on the table that seems a perfect 

storm, in a good sense. It has partisan balance. It rights historical 

wrongs. And it would seem a shame to pass up some benefit for 

residents of D.C. in order—sort of, almost letting the perfect be the 

enemy of the good. 

Mr. CHABOT. The gentlelady’s time has expired. 

Ms. JACKSON LEE. I am willing to take my chances. Thank you. 

Mr. CHABOT. The gentleman from Arizona is recognized for 5 

minutes. 

Mr. FRANKS. Thank you, Mr. Chairman. I just had a thought. If 

every voting mechanism in this country is one person, one vote, 

then, of necessity, we have to abolish the U.S. Senate—which may 

be a really great idea, I am not sure. 

With that, I would like to yield my time to Mr. Cannon. 

Mr. CANNON. I thank the gentleman from Arizona. 

Mr. Charnes, in the testimony of both Mr. Turley and Mr. 

Fortier, they explicitly referenced the potential problems of giving 

D.C. a vote because of article I, section 2, referring to the people 

of the several States. 

89

Can you talk a little bit about the District Clause, how it works 

in conjunction with this section, and why it is not in contravention 

of that? 

Mr. CHARNES. Sure. Well, the courts have uniformly explained 

that the District Clause gives Congress extraordinary authority 

legislating for the District. When Congress acts under its other authority, it is constrained by principles of federalism. 

And, likewise, when the States legislate, they are constrained not 

only by federalism principles, but various specific constitutional restrictions. The Commerce Clause I have referred to restricts what 

they can do, the Equal Protection Clause and so forth. 

The Congress, when it legislates for the District, basically has 

none of those constraints. And I think that it is that power that 

allows the Congress to conclude or to provide that the District of 

Columbia be treated as a district for purposes of representation in 

the House. 

If article I, section 2, clause 1 were perfectly clear, the Framers 

said it explicitly, ‘‘D.C. residents shall not have a vote in the 

House, period,’’ the District Clause, obviously, could not override 

that. 

But it doesn’t say that. And, as I indicated before, the courts 

have not interpreted the phrase ‘‘states’’ so categorically to exclude 

Congress’s authority under the District Clause. 

Mr. CANNON. I think diversity of jurisdiction is another example 

of that. We deal with diversity of jurisdiction in the District, do we 

not? 

Mr. CHARNES. That is right. There are a number of examples. 

The Diversity Clause, Commerce Clause, article I, section 2, clause 

3 refers to apportionment of taxes among the States, and the Supreme Court has said that that includes the District of Columbia. 

The sixth amendment, the right to a jury trial, refers to the partial jury of the State and district where the defendant lives, and 

the courts have said that that includes the District of Columbia. 

So there hasn’t been sort of a categorical rigid interpretation of 

‘‘state’’ in various provisions of the Constitution. 

Mr. CANNON. One of the more technical questions, for either of 

you, if you feel comfortable: If this legislation passes, Utah is the 

State that is likely to get the new seat. If that is certified based 

upon the last census, is redistricting done based upon the last census or upon the statistical updates to the last census or is that a 

choice by the State legislature? 

Mr. FORTIER. I believe it is done on the last census numbers. We 

have the example in Texas and we also have numbers of court-ordered mid-decade redistricting, where it relies on the initial last 

census numbers. 

Mr. CANNON. Let me suggest that Utah has grown very rapidly 

in the last 6 years. My district has had most of that growth, just 

as an aside. 

And if the legislature chose to use statistical updates for redistricting, what effect would that have, do you think? 

Mr. FORTIER. I mean, certainly, it would change the shapes of 

the districts and change what one could do. 

90

I guess the question is, do you rely on numbers that are officially 

sanctioned by the census, which is the baseline for what we tend 

to use, or do we feel comfortable with updating lines? 

I am not sure that the courts would absolutely forbid that, but 

my sense is that the census numbers are the most legally binding 

in that regard and you would have to——

Mr. CANNON. Clearly, as of a point in time, they represent an 

enumeration. But all you have to do is drive around on new roads, 

new streets, and see new houses. 

Mr. FORTIER. But that happens to almost—many States, as we 

get closer to the end of the district, the districts are of varying 

sizes. And there has to be some sort of line drawing as to 10 years, 

‘‘Why 10 years, not 5 years?′′

Mr. CANNON. I guess the real question is, if somebody sues, how 

do the courts rule on that? 

Mr. FORTIER. I believe that they would require the use of the old 

census numbers. 

Mr. CANNON. Mr. Charnes, do you have a different view? 

Mr. CHARNES. No, I actually don’t have an opinion about that. 

But Congress has great authority under article I, section 4 to intervene and to direct Utah how to create an at-large seat or how to 

draw the——

Mr. CANNON. So you believe the at-large seat is okay. 

Mr. CHARNES. Yes. 

Mr. CANNON. So in the contingency that the at-large seat does 

not happen—obviously, I am a supporter of the at-large seat, but 

if that happens, does the State legislature have latitude to use real 

numbers versus way out-of-whack numbers? 

Mr. CHABOT. The gentleman’s time has expired, but you can answer the question. 

Mr. CHARNES. That is a very good question. It is sort of a little 

bit beyond my area of competence. 

Mr. CANNON. I would just like to say, Mr. Chairman, that Mr. 

Turley pointed out that he was going to Utah. I think this is a coincidence. He is certainly not in the pay of the State, as evidenced 

by his testimony. 

Mr. CHABOT. Duly noted. The gentleman’s time has expired. 

I would just make one point. Mr. Nadler had 5 minutes, and we 

had indicated that would allow him to yield that to Ms. Norton. So 

you are welcome to take that 5 minutes, if you would like to do 

that. 

Ms. NORTON. Thank you very much, Mr. Chairman. 

We have heard two extraordinary propositions here: that the 

Framers intended to disenfranchise U.S. citizens, people who created this democratic public—that was Mr. Turley’s testimony; and, 

secondly, that Maryland and Virginia ceded land without getting 

assurances that their people would not be permanently 

disenfranchised. 

I think in your testimony, Mr. Charnes, you describe how each 

of them passed their bills. They didn’t have to cede a thing. 

Mr. CHARNES. That is right. 

Ms. NORTON. Talk about States’ rights, this is the early Constitution, where States’ rights were all—then the Congress passed legisVerDate 0ct 09 2002 12:15 Nov 16, 2006 Jkt 000000 PO 00000 Frm 00094 Fmt 6633 Sfmt 6601 G:\WORK\CONST\091406\29872.000 HJUD1 PsN: 29872
91

lation recognizing the right of Maryland and Virginia residents to 

vote. 

My question goes to when the Congress assumed full control. You 

said the United States firmly assumed full control of the District. 

Congress, by omission, withdrew the grant. 

There was no affirmative act of the Congress of the United 

States withdrawing the vote from these citizens of Maryland and 

Virginia. Did it simply lapse through inaction, not through any affirmative action indicating the intention of the first Congress? 

Mr. CHARNES. I think that is absolutely right, Congresswoman. 

And I think that there was certainly debate and proposed amendments to fix the problem, but that all happened, I believe, after 

1800. 

But I think the historical evidence suggests that no one really 

thought about this issue until the problem was presented in 1800, 

and then there were proposals and there was debate. And they, unfortunately, the proposed amendments, never went anywhere. 

But I think that reviewing the history suggests that no one really recognized the problem that would be created by the establishment of a district from land that was ceded by the States. 

Ms. NORTON. It is very important, when we talk about the intent 

of the Framers and the intent of the good of the first Congress, because, to understand originalism, we look to those Framers, those 

first people, who wrote the Constitution. 

Another question, the-sky-is-falling notion from Mr. Turley, that 

once you use the at-large, and quoting from his testimony, ‘‘Congress, by a future majority, could manipulate voting in Congress 

and reduce representation for insular groups.’’

He suggests that once an at-large remedy is granted for 4 years, 

temporarily, Utah going back to four seats thereafter, what we can 

expect is Congress will reduce the rights of others not in the same 

position. 

I wish you would respond to that. 

Mr. CHARNES. Sure. Well, Congress, in exercising its authority 

under article I, section 4, is bound, for example, by the Equal Protection Clause. So Congress could not pass a bill with the intent 

and effect of disenfranchising racial minorities and so forth. 

And I think the slippery-slope argument is one that you hear 

often, but I don’t think there is any evidence here that—there is 

no reason a court could not say that this transitional effort of giving an at-large seat to Utah was reasonable under the circumstances and commensurate with Congress’s authority under article I, when other efforts that were plainly meant at 

disenfranchising people and had an adverse effect on their voting 

rights would fall outside Congress’s authority. 

It strikes me that that is a somewhat speculative hypothetical. 

It is important to legislate understanding the slippery slope, but it 

is also important not to be paralyzed by slippery slopes. 

Mr. FORTIER. Can I add that we have many cases of temporary 

things happening in the middle of the districts, States coming into 

the union, court cases where there have been temporary solutions, 

as well. 

The case where, early on, we had many, many multi-Member districts, we had—I think to answer Mr. Watt’s question, we also had 

92

some mixed districts. Maryland, I think, actually had districts for 

the Electoral College, where western Maryland had a few, and it 

was different in the rest of the State. 

So I think there is a lot of flexibility and the mid-district question we deal with all the time because of States having come in. 

And this will disappear in 4 years if that is what comes out of it. 

Ms. NORTON. I would finally like to clear up the reputation of the 

Framers, this notion that they intended, as the price of living in 

the District of Columbia, that people would give up their voting 

representation in Congress, notwithstanding the efforts that were 

taken. 

I would like you to discuss the quid pro quo notion, especially in 

light of the concern that we all learned about of the local jurisdiction having control over the seat of Government. 

Now, which was their concern, and was there any discussion of 

any kind that what you should be glad of is somehow you are living 

in the District of Columbia? Living there gives you some power 

that others have through congressional representation, and that is 

the price you are going to pay? 

Mr. CHABOT. The gentlelady’s time has expired, but the witness 

or witnesses are free to answer the question. 

Mr. CHARNES. I am not aware of any discussion along those lines, 

quid pro quo, and, therefore, the people who lived in the District 

should be glad to give up their voting rights in order for the privilege of living in the District. 

In fact, it has been alluded to, it was Madison that expressly said 

that Maryland and Virginia, the ceding States, would protect their 

own residents that they were losing through—before ceding the 

land, would ensure that their residents were taken care of. 

Of course, that apparently didn’t happen, but I don’t think there 

is any evidence before the cessions that there was sort of a quid 

pro quo along the lines you are talking about. 

Mr. CHABOT. Mr. Fortier, anything? 

All time has expired. I want to thank the panel here, both those 

present and those that had to leave to catch flights, for their testimony this afternoon. 

I want to thank all the panel members who attended here this 

afternoon, both those on the Committee and those not. All the folks 

in the audience who came who have a particular interest in this 

issue. 

It is a very important issue. This is part of the process going 

through, and it is impossible to say at this point in time whether 

this change will occur or not. We will, obviously, confer with our 

colleagues about this. 

The record here is open and available to all Members of Congress, both on this Committee and those not on the Committee. 

And so, this is an important part of the process in deciding whether this change will be made ultimately or not. 

So I want to thank all for attending. 

If there is no further business to come before the Committee, we 

are adjourned. Thank you. 

[Whereupon, at 4:40 p.m., the Subcommittee was adjourned.] 

(93)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN CONGRESS FROM THE STATE

OF OHIO, AND CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION


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PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS


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LETTER FROM GREG J. CURTIS, SPEAKER OF THE HOUSE, AND JOSH L. VALENTINE, 

PRESIDENT OF THE SENATE, UTAH LEGISLATURE, TO CHAIRMAN F. JAMES SENSENBRENNER, JR. IN SUPPORT OF H.R. 5388, SEPTEMBER 13, 2006


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TESTIMONY OF ANTHONY A. WILLIAMS, MAYOR, DISTRICT OF COLUMBIA


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STATEMENT OF THE DISTRICT OF COLUMBIA AFFAIRS SECTION OF THE DISTRICT OF

COLUMBIA BAR


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STATEMENT OF CHARLES ORNDORFF, THE CONSERVATIVE CAUCUS, INC.


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STATEMENT OF THE AMERICAN BAR ASSOCIATION


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LETTER FROM LAWRENCE H. MIREL, WILEY REIN AND FIELDING LLP, TO CHAIRMAN

CHABOT AND RANKING MEMBER NADLER, SEPTEMBER 20, 2006


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STATEMENT OF LAWRENCE H. MIREL, WILEY REIN AND FIELDING LLP


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TESTIMONY OF THE DC STATEHOOD GREEN PARTY


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LATHAM AND WATKINS LLP, ‘‘SUPPLEMENTAL ANALYSIS REGARDING POSSIBLE D.C. 

VOTING LEGISLATION BY REPRESENTATIVE THOMAS M. DAVIS, III (R-VA),’’


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LATHAM AND WATKINS LLP, ‘‘ANALYSIS REGARDING POSSIBLE D.C. VOTING

LEGISLATION BY REPRESENTATIVE THOMAS M. DAVIS, III (R-VA),’’


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MEMORANDUM FROM CONGRESSIONAL RESEARCH SERVICE, ‘‘CONSTITUTIONALITY OF

CONGRESS CREATING AN AT-LARGE SEAT FOR A MEMBER OF CONGRESS’’


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LETTER IN SUPPORT OF H.R. 5388 FROM ROBERT C. KEITHAN, DIRECTOR, UNITARIAN

UNIVERSALIST ASSOCIATION OF CONGREGATIONS, TO REPRESENTATIVE TOM DAVIS, 

MAY 18, 2006


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LETTER IN SUPPORT OF H.R. 5388 FROM KAY J. MAXWELL, PRESIDENT, LEAGUE OF

WOMEN VOTERS, TO MEMBERS OF THE HOUSE JUDICIARY COMMITTEE, MAY 31, 2006


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LETTER IN SUPPORT OF H.R. 5388 FROM MARC H. MORIAL, PRESIDENT AND CEO, 

NATIONAL URBAN LEAGUE, JUNE 12, 2006


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LETTER IN SUPPORT OF H.R. 5388 FROM ROBERT D. EVANS, DIRECTOR, AMERICAN

BAR ASSOCIATION, TO CHAIRMAN F. JAMES SENSENBRENNER, JR., JUNE 16, 2006


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LETTER IN SUPPORT OF H.R. 5388 FROM DR. CLARK LOBENSTEIN, EXECUTIVE DIRECTOR, THE INTERFAITH CONFERENCE OF METROPOLITAN WASHINGTON, TO CHAIRMAN

F. JAMES SENSENBRENNER, JR., JUNE 21, 2006


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LETTER IN SUPPORT OF H.R. 5388 FROM JOSLYN N. WILLIAMS, PRESIDENT, 

METROPOLITAN WASHINGTON COUNCIL, AFL-CIO, JUNE 27, 2006


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LETTER IN SUPPORT OF H.R. 5388 FROM MELVIN S. LIPMAN, PRESIDENT, AMERICAN

HUMANIST ASSOCIATION, JULY 14, 2006


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LETTER REGARDING H.R. 5388 FROM RONALD JACKSON, EXECUTIVE DIRECTOR OF D.C. 

CATHOLIC CONFERENCE, AND MICHAEL SCOTT, COORDINATOR OF D.C. LEGISLATIVE

NETWORK, THE ARCHDIOCESE OF WASHINGTON, JULY 20, 2006


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LETTER IN SUPPORT IF H.R. 5388 FROM PATRICIA M. WALD TO CHAIRMAN F. JAMES

SENSENBRENNER, JR., JULY 25. 2006


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‘‘JEWISH ORGANIZATIONS SUPPORT H.R. 5388,’’ LETTER IN SUPPORT OF H.R. 5388, 

JULY 25, 2006


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LETTER IN SUPPORT OF H.R. 5388 FROM THE LEADERSHIP CONFERENCE OF CIVIL

RIGHTS, SEPTEMBER 13, 2006


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MEMO IN SUPPORT OF H.R. 5388 FROM THE LEADERSHIP CONFERENCE ON CIVIL

RIGHTS


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LETTER IN SUPPORT OF H.R. 5388 FROM RALPH G. NEAS, PRESIDENT, AND TANYA

CLAY HOUSE, DIRECTOR OF PUBLIC POLICY, PEOPLE FOR THE AMERICAN WAY, SEPTEMBER 13, 2006


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‘‘REFORM JEWISH LEADER URGES COMMITTEE TO SUPPORT CONGRESSIONAL

REPRESENTATION FOR WASHINGTON, D.C. RESIDENTS


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LETTER IN SUPPORT OF H.R. 5388 FROM RABBI DAVID SAPERSTEIN, DIRECTOR AND

COUNSEL, RELIGIOUS ACTION CENTER OF REFORM JUDAISM, SEPTEMBER 13, 2006


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LETTER IN SUPPORT OF H.R. 5388 FROM HILARY O. SHELTON, DIRECTOR, NATIONAL

ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP) TO MEMBERS

OF THE HOUSE COMMITEE ON THE JUDICIARY, SEPTEMBER 13, 2006


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‘‘INTERFAITH COALITION SUPPORTS H.R. 5388,’’ LETTER IN SUPPORT OF H.R. 5388 

FROM A BROAD COALITION OF RELIGIOUS ORGANIZATIONS, SEPTEMBER 13, 2006


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LETTER IN SUPPORT OF H.R. 5388 FROM RICHARD T. FOLTIN, LEGISLATIVE DIRECTOR

AND COUNSEL, AND DAVID BERSTEIN, EXECUTIVE DIRECTOR OF THE WASHINGTON

CHAPTER, THE AMERICAN JEWISH COMMITTEE, SEPTEMBER 14, 2006


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LETTER IN SUPPORT OF H.R. 5388 FROM CHELLIE PINGREE, PRESIDENT AND CEO, 

COMMON CAUSE, SEPTEMBER 20, 2006


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‘‘SUPPORT DEMOCRACY IN OUR NATION’S CAPITAL,’’ THE COALITION TO STOP GUN

VIOLENCE


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Æ


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