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The case seemed simple. More than 200 years after the Declaration of Independence set forth the “self-evident Truths” that “all Men are created equal, that they are endowed by their Creator with certain unalienable Rights,” and that governments “deriv[e] their just Powers from the consent of the Governed,” residents of the District of Columbia still lack full voting rights in Congress. More than 130 years after the nation ratified the 14th Amendment, with its guarantees of equal protection and due process, and the 15th Amendment, with its prohibition on denying the franchise on account of race, half a million Americans who live in Washington still cannot elect voting members to Congress. More than 80 years after the states approved the 19th Amendment, which forbid the denial of the franchise on the basis of sex, multitudes of women are deprived of their full voting rights if they live in the city that George Washington selected as the nation’s capital. And almost 30 years after the nation adopted the 26th Amendment to extend the franchise to those citizens at least 18 years of age and thus old enough to fight in their country’s wars, the District’s veterans are still prohibited from exercising the democratic rights for which they fought. How hard could it be to achieve full voting rights for, of all people, those who live in the capital of the world’s greatest democracy? After waiting two centuries, the District’s residents began to let themselves hope that the vote would be “not long” in coming — in the words of Martin Luther King Jr. — because “the arc of the moral universe is long, but it bends toward justice.” Last Monday, by summarily affirming in an 8-1 vote a lower court’s decision that D.C. residents have no constitutional right to elect full voting members to the House of Representatives, the Supreme Court showed just how long that arc can be. ‘NO RIGHT IS MORE PRECIOUS’ That the situation is unfair was undisputable. Even the majority of the special three-judge District Court that denied the plaintiffs’ claims in the case (actually, two related cases — Alexander v. Mineta and A dams v. Clinton) stated: “[W]e are not blind to the inequity of the situation plaintiffs seek to change.” But justice should be blind enough to save its sympathy and weigh the merits. And those merits tilted precipitously in favor of granting the relief the plaintiffs sought. That relief was something that every U.S. citizen outside the District takes for granted — the right to elect those who vote for our laws. And because Congress passes not only generally applicable laws that affect every American but also laws specific to the District, the plaintiffs had an especially strong claim to full representation in Congress. The plaintiffs in Alexander simply asked the judges to declare the existence of that right. Then Congress would have had to decide how best to give expression to it — either by treating the District as a state solely for the purpose of electing members of Congress or by allowing D.C. residents to vote in elections in Maryland — as was permitted in the last decade of the 18th century. The law supported granting the requested relief. Congress has never explicitly disenfranchised D.C. residents. Those who now live in the District never consented to waive their fundamental rights. And, most importantly, nothing in the Constitution specifically prohibits District residents from voting for Congress. Those opposing full enfranchisement point to Article I, Section 2 of the Constitution, which states: “[T]he House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” But that language should pose no obstacle to the plaintiffs’ case. The right goes to the people, not to the states. In other circumstances, the Supreme Court has held that D.C. residents should receive the benefit of basic rights that the Constitution explicitly grants only to the states. And the right to vote is nothing if not basic. Federalist No. 52 says that “the right of suffrage is very justly regarded as a fundamental article of republican government.” As the Supreme Court stated in the seminal voting rights case of Wesberry v. Sanders (1964), “[N]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live… . Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.” The disenfranchisement becomes all the more frustrating when one considers that the federal government defendants insisted — and the lower court decision reasoned — that the Constitution must be read in this case as if we still lived in the 1780s. Because the Constitution does not explicitly grant D.C. residents the right to elect full voting members of Congress, the defendants argued, the right does not exist. But such reasoning ignores the importance of the rights — and voting rights in particular — that have been added since the Constitution was originally ratified. As the plaintiffs wrote in one of their Supreme Court briefs, the 14th Amendment’s “equal protection guarantee amends and informs the original Constitution, not the other way around.” Ignoring the history of amendments, the defendants utter their mantra of “states is states,” and thus damn the District. No matter that there is no recorded discussion from the Constitutional Convention in Philadelphia about the effect that the Constitution would or should have on the voting rights of those who lived on the banks of the Potomac. No matter that the District did not even exist in 1787, and that by 1800 it had fewer than 15,000 residents — most of whom would have been disenfranchised by contemporary voting restrictions. Forget that the Supreme Court has granted the very right that D.C. residents seek to those Americans who live on other federally owned lands, and that Congress has granted it to Americans who no longer even live in the country. And no matter that there is no good policy reason — or even a bad policy reason — for continuing to exclude D.C. residents from the full freedoms of democracy. No matter, and no bother, either. The Supreme Court in disposing of the two cases wrote all of 27 words — not even an oral argument to provide a full vetting of the issues. The high court has ruled, and its holding is a letdown. THE LONG ARC What now? There is still a ghost of the litigation alive in the courts. The Supreme Court’s holding, technically speaking, affects only the plaintiffs’ claim for electing voting members to the House of Representatives. The claim to elect voting senators is pending before the U.S. Circuit Court of Appeals for the D.C. Circuit. The Supreme Court’s holding does not procedurally bar the Senate-based claim, although it doubtless weakens its chance of success. Another option is for Congress to act on its own accord. The point of the Alexander litigation was always to prompt Congress to enfranchise D.C. residents, a power granted in Article I, Section 8, Clause 17: “Congress shall have Power … to exercise exclusive legislation in all Cases whatsoever, over [the] District.” The flaw in this option is that if D.C. residents were ever to be given the right to vote merely by statute, rather than by statute in response to a constitutionally based decision, then nothing could stop the legislature from later revoking that same right. Americans can also pass a constitutional amendment to enfranchise D.C. residents. Exactly that was attempted in 1978, in a measure that enjoyed broad bipartisan support from politicians as diverse as Bob Dole, Edward Kennedy, Dan Quayle, Joseph Biden, and Strom Thurmond. The amendment passed both houses of Congress, but died in the states. Chances for a new amendment are, at the very least, uncertain. And a final option is, even still, the courts. Any attempt in the near future will face tough odds, but not impossible ones. The Supreme Court has reversed itself within a matter of mere years on other important voting rights decisions. In Smith v. Allwright (1944), the Court reversed the nine-year-old decision of Grovey v. Townsend and struck down racist primary rules in Texas. And in Harper v. Virginia Board of Elections (1966), the Court reversed the 15-year-old decision in Butler v. Thompson that had upheld the poll tax in state elections. So the District must wait. The arc of the moral universe is long. And on this issue at least, it doesn’t yet bend toward justice. Evan P. Schultz is associate legal editor at Legal Times. Previously, as an associate at Covington & Burling, he helped represent the plaintiffs in Alexander v. Mineta. The views expressed here are his own.

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