July 26, 2013

July has been a momentous month for D.C. democracy. Last week, the budget-autonomy charter amendment that District voters passed overwhelmingly in April became law. And this month, the D.C. Council held a hearing on a bill that would, for the first time, fund the shadow congressional delegation and commit funds to media and lobbying efforts designed to advance statehood and related issues.

But the council also took an enormous step backward for democracy. Through a referendum in November 2010, D.C. residents amended the Home Rule Charter to require the election of the attorney general. More than 90,000 residents voted in favor, by a margin of more than 3 to 1. The referendum said: “If voters approve this amendment and the U.S. Congress does not reject the measure, residents of the District of Columbia would begin voting for the Attorney General in 2014.”

Despite this, the D.C. Council voted 8 to 5 to postpone the election until 2018. This decision was made on the basis of an amendment, without a hearing and at the 11th hour of the final legislative meeting before the council’s summer recess. The decision is of questionable legality, given that a charter amendment passed by the people cannot be amended by the council; it can be amended only through another referendum supported by the people or by congressional action.

More important, the council’s action directly contradicts the expressed will of the voters and delays the expanded democracy they intended. The council also acted contrary to its general counsel’s advice that it had no such authority and in spite of the urging of the current D.C. attorney general not to do this.

It is puzzling that the same council that so ardently fights for greater D.C. democracy has now decided to delay the right of the people to an election.

It is further puzzling that each of the council members who introduced the bill to fund the statehood delegation also backed denying D.C. residents the right to elect their attorney general next year. Having an elected attorney general is an important step on the District’s road to statehood. After all, voters in 43 states elect their attorney general. The D.C. Council should not subvert the right of District voters to do the same.

In a Supreme Court opinion last month, Justice Anthony M. Kennedy observed that “the essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around.” Fortunately, it is not too late for the council to recognize this fundamental principle. It will vote again in September on postponing the attorney general election. This time, we hope they vote for democracy.

Walter Smith is executive director of the DC Appleseed Center for Law and Justice. Paul Strauss is a D.C. shadow senator and was the treasurer of the Yes on Amendment Four Committee, which advocated for making the D.C. attorney general an elected position.