Treat Washington, DC as Part of Maryland for Congressional Elections

David A. Wheeler

April 22, 2004

Today's Washington, DC license plates have an odd slogan: "Taxation without Representation." The slogan has a good point. Washington, DC residents cannot vote for Congressional representation the way other U.S. citizens can, yet they pay taxes, provide military personnel, and in all other ways are U.S. citizens. That's a serious flaw in U.S. democracy.

The current unfair (and undemocratic) situation is all based on an 1801 law interpreting the U.S. Constitution. Article I, section 8, clause 17 of the Constitution gives the Congress the power "to exercise exclusive legislation in all cases whatsoever over such capital district." The Constitution was written in 1787; the site of the District of Columbia (DC) was chosen later, in 1790. The U.S. Constitution doesn't expressly forbid voting by residents, and in 1793-1794, Uriah Forrest (who lived in DC) represented Maryland in the U.S. House of Representatives. Up until 1801, people who lived in DC voted just like any other U.S. citizen (voting in either Virginia or Maryland, depending on where the DC land came from). However, the "Organic Act" passed by Congress in 1801 stripped DC residents of their rights to vote in Federal elections. In 1801 this didn't affect many people, but this 1801 law now affects hundreds of thousands of people.

There have been several attempts to fix this, through a variety of ways. Most recently there have been several prominent drives to admit the District of Columbia as a new state. This effort to turn DC into a state is called "DC statehood," and it's a plausible way to allow DC residents to finally vote for Congressional representation. Indeed, DC is already considered a state for purposes of presidential elections, thanks to the 23rd amendment passed in 1961. A petition to admit DC as a new state was filed in Congress in 1983, but failed, and a similar measure failed in November 1993 in the U.S. House of Representatives (by the wide margin of 277 to 153). I'm skeptical that these DC statehood bills will ever pass, and it's frankly not at all clear that DC should be a state. Here are some of the problems with DC statehood:

  1. No other city has the full status or electoral privileges of a state -- even New York City doesn't have that status. It's hard to justify why DC should be granted the election privileges of statehood, when more populous cities do not get that privilege.
  2. DC is orders of magnitude smaller than any state. It's true that DC actually has more people than one other state; my encyclopedia says that DC has 567,000 people, while Wyoming has 493,000. But states are defined by area, not by the number of people, and DC simply isn't in the same league as all current states. DC has only 68 square miles of area. The smallest state, Rhode Island, has 1,231 square miles, and second-smallest Delaware has 2,396 square miles. Land area obviously influences how many people could live in a place in the future, administration needs to be very different for different land sizes, and so on.
  3. Although Maryland ceded the land of DC for purposes of creating a Federal capital district, there's evidence that Maryland never ceded that land for the purpose of creating another state. That's important, because states have to specifically okay the creation of another state from their land. Indeed, there's historical evidence that Maryland did not intend for another state to be created, since a DC resident has represented Maryland!
  4. DC statehood drives have been tried again and again -- and failed again and again, regardless of who was in power.

There's a much simpler solution: consider Washington, DC part of Maryland for the purpose of all Congressional elections. Maryland and DC both tend towards the Democratic party, so this wouldn't cause sudden shift in Maryland's makeup (so this would probably be easier for everyone to accept). This would probably give Maryland one additional representative in the House of Representatives, but that's hardly surprising since you are finally representing people who should have been represented in the first place. Possibly more importantly, there's strong historical justification for this. Originally DC was formed from Maryland and Virginia land, but the Viriginia land was ceded back to Virginia in 1846. Thus, all of DC's current land was originally Maryland's land. And as noted above, there's already been a case (1793-1794) where a DC resident represented Maryland in the U.S. Congress. Given this strong historical precedent, it would make sense for DC residents to vote in Federal elections as Marylandians. (DC Vote has more on this history.)

A big advantage of this approach is that no Constitutional amendment is needed. I believe this change could enacted by Congress, or by the Supreme Court:

  1. A simple vote in Congress could cause this, by enacting a law like this: "For purposes of Congressional elections, residents of the District of Columbia shall be considered residents of Maryland." After all, these rights were retained until a vote in Congress in 1801, so a vote in Congress now should be enough to restore them. And it seems improbable that the Supreme Court would agree to re-disenfranchise DC residents once the Congress granted them voting rights.
  2. The Supreme Court could render the disenfranchisement from the 1801 law as unconstitutional. To my knowledge, no law that old has ever been declared unconstitutional, and courts usually defer to long-held practices. But the Constitution doesn't suggest that it intended to disenfrachise U.S. citizens. Practices before the 1801 law do suggest that citizens on DC's current land are supposed to be voting Maryland, and that's an even older practice.

This would mean that DC would still be subject to Federal oversight. However, all cities and towns are subject to oversight in some ways from their state, too. Indeed, Congressional oversight seems to have been the original reason for this clause in the Constitution; it's extremely improbable that the founders intended to disenfranchise U.S. citizens. And it's certainly an improvement from the current situation.

It's not clear to me that the other (commonly-mentioned) approaches will work. I already discussed the problems with DC statehood above. Amending the U.S. Constitution was tried in 1978, and failed by 1985 (by exceeding its time limit); I see no reason for an amendment to succeed now or any time in the near future. A significant portion of DC could given back to Maryland (a "reunion" or "retrocession"), but that would require consent of both the Maryland state legislature and U.S. Congress, and it's not at all clear that Maryland actually wants DC. It's not that I'm strongly opposed to an alternative, but the current situation (where residents can't vote at all) needs to be addressed. I see considering DC as part of Maryland (for Congressional elections) as a simple and reasonable solution.

There are other interesting sites that discuss this topic, including DC Vote, where they discuss various solutions. This particular solution is discussed as "Treatment of District Residents as Maryland Voters for Federal Elections," but DC vote doesn't try to recommend any one approach. In contrast, I think this approach is especially appealing; it solves the problem, and in a way that is consistent with history.

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