Justice Official Reiterates Bush's Stance Against Voting Bill
Measure Violates Constitution, Committee Is Told

By Mary Beth Sheridan
Washington Post Staff Writer
Thursday, May 24, 2007

The Bush administration provided testimony about the D.C. voting-rights bill for the first time yesterday, with a Justice Department official saying that the measure is unconstitutional and that arguments to the contrary are "unpersuasive."

John P. Elwood, a deputy assistant attorney general in the department's Office of Legal Counsel, was invited to speak by the Senate Judiciary Committee in the latest in a series of congressional hearings on the D.C. vote bill. The measure was approved last month by the House.

The White House has threatened a veto if it passes the Senate. But supporters of the legislation are hopeful that Bush, who rarely uses his veto power, can be persuaded to hold off on killing the bill.

U.S. Sen. Russell Feingold (D-Wis.), who chaired the hearing, said he invited Elwood because he wanted to "hear the nature of the department's objection" to the legislation.

"The important thing is, the Justice Department should be vigorously committing to defend this" if it becomes law, Feingold said. The department usually defends laws from court challenge. But Elwood said it's uncertain whether it would do so in this case.

The bill is a political compromise that expands the House of Representatives by two seats. One would go to the heavily Democratic District, and the other to the next state in line to expand its congressional delegation based on population. That state is currently Utah, a Republican bastion.

In his testimony, Elwood repeated the Bush administration's contention that the bill violates the constitutional requirement that House representatives come from states. In addition, he said, "the framers and their contemporaries clearly understood that the Constitution barred congressional representation for District residents."

For decades, Elwood said, Congress and the executive branch had said that the District could get voting representation in Congress only through a constitutional amendment or by becoming part of Maryland.

Some legal experts at the hearing challenged those arguments.

Richard P. Bress, a former assistant to the U.S. solicitor general -- the government's top lawyer before the Supreme Court -- said that critics of the bill relied on historical "snippets" to prove that the Founding Fathers opposed giving the vote to D.C. residents.

"There's plenty among the snippets that cuts the other way," he said.

Patricia Wald, a former appellate judge, testified that Congress could bestow voting representation under the Constitution's "District clause," which gives the legislature sweeping power over the nation's capital.

But, she said, "I do think that it's a close and somewhat novel constitutional issue."

When Feingold asked whether the Justice Department would defend the measure if it becomes law, Elwood was hesitant.

He said proponents of the bill had presented strong arguments in its favor. Although he said he found them "ultimately unpersuasive," the executive branch would consider it important that "Congress was persuaded by these arguments," he said.

But the official declined to be pinned down on what the department would do, saying that his office is devoted to legal analysis, not policy.

"We're law nerds," he said.

After the hearing, Feingold said he would be "looking for other opportunities to get the Justice Department to commit" to defending the bill if it becomes law.

Two other critics of the bill were at the hearing -- Jonathan Turley, a professor at George Washington University Law School, and Kenneth R. Thomas, a lawyer at the Congressional Research Service. Six witnesses spoke in favor, including Eleanor Holmes Norton (D), the District's nonvoting House delegate.

It was unclear what impact, if any, the hearing would have on senators. Only two sat through the hearing -- Feingold, a strong supporter of the D.C. vote bill, and Sen. Orrin G. Hatch (R-Utah), a co-sponsor of the measure. No senators opposed to the bill were present. The Senate minority leader, Mitch McConnell (R-Ky.), has criticized the bill on constitutional grounds.

The bill is expected to face a vote in the next few weeks in the Senate Committee on Homeland Security and Governmental Affairs. Supporters are attempting to round up 60 senators' votes to head off a possible filibuster by Republicans.