Citing constitutional grounds, 10 DC residents sue the federal government for voting rights
Last week an estimated 116 million Americans participated in the 2018 elections, making it the first midterm in history with over 100 million votes cast. Across the country voters turned out for hotly contested House and Senate races, casting their ballots for those who will represent them on the national stage.
But the day before the election, 10 DC residents filed a complaint with the U.S. District Court for the District of Columbia, suing the federal government for full voting rights based on alleged constitutional violations of the equal protection clause, due process of law and the First Amendment right of association.
“[We] want to bring a lawsuit now to bring visibility across the country if we can, so that when a new Congress convenes in January, our lack of democracy can at long last be on the agenda,” said Walter Smith, executive director of the DC Appleseed Center, which is assisting with the case. “We have to go to court in order to have what the rest of the country has.”
Eleanor Holmes Norton, the District’s elected delegate to the House of Representatives, does not have a vote on the floor. Neither do the three members of DC’s shadow congressional delegation, elected to push the case for statehood.
Gabriela Mossi, who was born in DC but spent her childhood living in Honduras, said she was shocked when she returned as a young adult and discovered DC representatives cannot vote. “You can imagine my dismay to learn that this was the bastion of democracy, the United States,” said Mossi, one of the 10 plaintiffs in the suit and a former Ward 1 advisory neighborhood commissioner. “I was here, living here — and all of the residents, hardworking tax-paying residents, had no voting representation.”
Voting rights proponents argue that the status quo subjects DC residents to laws they’ve had no say in and amounts to taxation without representation. Those arguing against DC voting rights highlight the District’s special role as the nation’s capital and suggest that the city is too small — with 700,000 residents living within 61 square miles — to warrant full representation in the Senate.
The District was granted electoral votes for presidential elections in 1961 with the 23rd Amendment to the Constitution. In 1973, the DC Home Rule Act provided the city with an elected mayor and council, which wrested some governing responsibilities from Congress. A proposed constitutional amendment to grant DC full representation passed the House and Senate in 1978 but failed to win ratification from enough states to take effect.
The 10 plaintiffs — who are being assisted in their case by the DC Appleseed Center and the law firm of Harris, Wiltshire, & Grannis — are suing not only the United States, but also President Donald Trump, Vice President Mike Pence, Speaker of the House Paul Ryan, and six other government officials.
Among the plaintiffs, there is at least one resident from every ward, except for Ward 8. All 10 have a history of civic involvement in the District. For example, Laurie Davis, a resident of Ward 3, helped found the Washington Legal Clinic for the Homeless. Angelica Castañon, a plaintiff from Ward 1, serves as an advisory neighborhood commissioner in Columbia Heights.
Their complaint hinges on recent legal precedent. Two previous lawsuits on voting rights for DC were rejected, but lawyers believe that new legal arguments — made possible by congressional actions and court rulings over the last 18 years — could clear the way for a ruling in their favor.
“It’s not just unfair and un-American, but it’s unconstitutional that the people who live in the District of Columbia do not have a vote,” DC Appleseed’s Smith said.
The complaint makes three distinct constitutional arguments. The cases in 2000 failed because judges ruled that the Constitution grants voting rights only to residents of states, and the District is not a state. But lawyers for the plaintiffs argue that Congress has conferred voting rights to people outside of states in other instances, such as stationed military and expatriates. Congress also suggested, during consideration of the DC Voting Rights Act in 2007 and 2009, that it does have the power to grant voting rights to DC residents, even though they don’t live in a state.
The plaintiffs complain that withholding voting rights from DC, when Congress has granted them to other stateless residents, flies in the face of the equal protection guaranteed in the Constitution.
They also argue that voting is a fundamental right, and that the right of association for DC citizens, guaranteed in the First Amendment, is being ignored.
“The heart of the lawsuit that we brought this morning is that Congress has always had and has today the authority to fix this,” Smith said at a Nov. 5 press conference at the D.C. Attorney General’s Office. “And it’s their refusal to do so that violates the equal protection clause and the due process clause and the First Amendment.”
Plaintiffs and lawyers say they hope the case will bring greater visibility to the injustice of the situation given that many Americans still see the District as simply the home of the federal government.
“I believe it is time that this fanciful vision of Washington, DC, strictly as a seat of government, as a seat of power, be recognized as such,” said plaintiff and Ward 5 resident Vanessa Francis at the press conference. “It is time our voices stop being silenced simply because of the borders we find ourselves in.”
Karl Racine, the District’s elected attorney general, was at the press conference to back the lawsuit. “The District of Columbia Office of Attorney General looks forward to being a partner in this lawsuit,” said Racine. “It’s high time the nation benefit from the District of Columbia voters.”
Norton, who was re-elected to a 15th term a day after the press conference, also threw her support behind the lawsuit, which she described as a “new and artful” approach to securing voting rights. As the District’s delegate to the House of Representatives, Norton can serve on committees and speak on the House floor, but cannot vote on the passage of any legislation.
“It’s a brilliant lawsuit that you don’t have to be a lawyer to understand,” said Norton, a professor emeritus of law at Georgetown University. “If the Congress can give representation to Americans living overseas, then the Congress — which controls the District of Columbia — can give representation to people living here in the nation’s capital.”
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