When did District residents lose the right to vote in congressional elections? They never had it, you might say. Ah, but you would be wrong.
This is no piece of historical arcana. It could form the legal basis for giving District residents full voting representation in Congress. Think about it: If it turns out that the District's residents had once voted for members of Congress, wouldn't that change the nature of the debate?
In fact, they did. For at least 10 years after the District of Columbia was created in 1790 from parts of Maryland and Virginia, the people who lived there continued to vote in those states, depending on which side of the Potomac they were on. In 1792, moreover, Uriah Forrest of Georgetown was elected to the U.S. House of Representatives as a congressman from Maryland, even though Georgetown had been ceded to the federal government four years earlier.
We know that the framers of the Constitution did not intend to take away any voting rights from District residents. Alexander Hamilton, during the debate in New York state on the ratification of the Constitution, said that District residents would continue to vote in Maryland and Virginia elections until their numbers grew and "provision shall be made by Congress for their having a District representative in the body." No law was ever passed denying them the right to vote. No court ever ruled that they could not. I contend that the people who live in today's District of Columbia--all of which used to be part of the state of Maryland, because Virginia reclaimed its portion long ago--have the right, and have always had the right, to vote in Maryland's congressional elections.
But after nearly 200 years of not voting, why does it matter now? Because on April 19, a three-judge panel of the U.S. District Court for the District of Columbia will hear oral arguments in two voting rights cases. The lawsuits contend that it is unconstitutional to deny District residents the right to vote in congressional elections. The plaintiffs' arguments deserve the utmost consideration, for they are at the heart of what our democracy is all about. The voting rights of the District's earliest residents can be the key to the door to full citizenship rights for today's residents.
Despite a great deal of research by scholars and lawyers, the full story of how District residents lost their congressional voting rights is somewhat of a mystery. Both the Maryland and Virginia acts of cession (the legislation that ceded land to the District) specified that the laws of their states would continue in force until such time as Congress provided otherwise. And the congressional act that set up a local government for the District of Columbia provided that "the laws of the state of Virginia, as they now exist. . . and the laws of the state of Maryland, as they now exist, shall be and continue in force in that part of the said district, which was ceded by that state to the United States. . . ." (You could look it up. The citation is Act of Feb. 27, 1801, 2 Stat. 103. and it's included along with the cession acts in Volume 1 of the D.C. Code.)
Moreover, the Virginia and Maryland cession acts specifically sought to protect the rights of their former residents, saying that nothing in the transfer of jurisdiction would "affect the rights of individuals therein, otherwise than the same shall or may be transferred by such individuals to the United States." In other words, transferring jurisdiction from state to federal government could not be used as a reason for depriving the people living there of any rights they formerly had, except with their consent.
So what rights did the people living in the new federal territory have before the transfer? One right, surely, (at least for those who were white and male) was the right to voting representation in the federal Congress. Maryland and Virginia, of course, were among the 13 original entities that made up the new United States of America. Both were original signers of the Constitution. Therefore, their residents were entitled to all the guarantees of the Constitution. Article IV, Section 4, of the Constitution says that the "United States shall guarantee to every State in this Union, a Republican Form of Government."
"Every state" includes Maryland and Virginia and the people who lived there, and "a republican form of government" must, at a minimum, mean that the people are allowed to participate in their own governance by voting for members of Congress.
Did those rights go away when the District was created? The U.S. Supreme Court, in a 1933 case that did not deal with voting rights, did not think so. The court wrote in O'Donoghue v. United States: "It is important to bear constantly in mind that the District was made up of portions of two original states of the Union, and was not taken out of the Union by the cession. Prior thereto its inhabitants were entitled to all rights, guarantees, and immunities of the Constitution. . . . We think it is not reasonable to assume that the cession stripped them of those rights. . . ."
What, exactly, did the states of Maryland and Virginia cede to the federal government in 1788 and 1790? Only the right of "exclusive legislation" over the territory. That is, Congress could, if it chose, enact laws (if those laws were otherwise constitutional) that applied only to the District of Columbia. Until such laws were enacted, however, Maryland and Virginia laws would continue to apply in those portions of the District ceded by each state.
After Virginia took back its land in 1846, the people who lived there--now Arlington County and the old portion of the city of Alexandria--were able to vote in federal elections as residents of Virginia. But what about the rest of the District? It was once part of Maryland and subject to Maryland law. Maryland law guarantees to all residents of that state the right to vote in congressional elections. Why does that right not extend to the people who live in the District of Columbia?
You might want to argue that the people who live in the District shouldn't be able to vote in Maryland's congressional elections because they don't live in Maryland; that is, they live in land under the exclusive jurisdiction of the federal government, not the Maryland legislature. That argument was used by Maryland election officials in 1969 when they tried to prevent someone who lived on the campus of the National Institutes of Health in Bethesda from voting in Maryland elections. But in 1970, the Supreme Court ruled unanimously in Evans v. Cornman that "exclusive federal jurisdiction" was not enough of a reason to deny someone that most basic of rights, the right to participate in one's own governance.
Many people live under the exclusive jurisdiction of the federal government and are not subject to state laws. Millions of people live in so-called federal enclaves, those territories that have been purchased by, or ceded to, the federal government for use as military bases, national parks and other federal facilities. They are all entitled to vote as residents of the states from which those enclaves were carved out. So are Native Americans who live on Indian reservations--although those reservations are not subject to most state laws. Even Americans who live overseas, on military bases or on other federal facilities, vote in congressional elections, although no state has jurisdiction over them. Only the people of the District of Columbia are denied that right.
Article I, Section 8, of the Constitution--the same section that gives Congress exclusive legislative authority over the District of Columbia--also provides that Congress shall exercise "like authority" over the federal enclaves. If the Constitution means what it says, the people who live in the District should have the same rights as the people who live in the federal enclaves. Those rights include the right to participate in federal elections on equal terms with the residents of the state from which the enclave was carved out. In the case of the District of Columbia, that state is Maryland.
If the three-judge panel meeting next month is willing to take a good look at what some people might dismiss as ancient history, District residents may once again find themselves able to cast a vote for candidates for the U.S. Senate and a representative who has a real vote--in Maryland.
Lawrence Mirel is president of the Committee for the Capital City, which seeks full voting rights for District residents. The group has filed an amicus brief in two pending D.C. voting rights cases.