Opinion

Adams v. Clinton

90 F. Supp. 2d 35
90 F. Supp. 35
2000 WL 307259

Court: District Court, District of Columbia
Filed: Apr 20, 2000
Status: Published
On the bench: Garland, Oberdorfer, Kollar-Kotelly
Cited by: 36 cases
Authority: More cited than 80.2%

concluding that “the overlapping and interconnected use of the term ‘state’ in ... Article I, the historical evidence of contemporary understandings, and the opinions of our judicial forebears all reinforce how deeply Congressional representation is tied to the structure of statehood”

How later courts described this case

concluding that “the overlapping and interconnected use of the term ‘state’ in ... Article I, the historical evidence of contemporary understandings, and the opinions of our judicial forebears all reinforce how deeply Congressional representation is tied to the structure of statehood”
concluding that “the literal references to the ‘States’ in Article I do not necessitate denying to the people of the District the right to vote for voting representation in the House of Representatives”
rejecting argument that congressional legislation disenfranchised citizens of the District, conclud- ing that “it is the Constitution itself that is the source of plaintiffs’ voting disability,” and noting that “it was not the Organic Act or any other ces- sion-related legislation that excluded District residents from the franchise, something we agree could not have been done by legislation alone”
concluding, based on “[a]n examination of the Constitution’s language and history, and of the relevant judicial precedents,” that D.C. is not a state for apportionment purposes

Written by the judges who cited it.

The opinion

MEMORANDUM OPINION

PER CURIAM.

In these consolidated lawsuits, seventy-five residents of the District of Columbia, along with the District of Columbia itself, challenge as unconstitutional the denial of their right to elect representatives to the Congress of the United States. Plaintiffs argue that their exclusion from representation is unjust. They note that the citizens of the District pay federal taxes and defend the United States in times of war, yet are denied any vote in the Congress that levies those taxes and declares those wars. This, they continue, contravenes a central tenet of our nation’s ideals: that governments “derivfel their just powers from the consent of the governed.” THE DECLARATION OF INDEPENDENCE para. 2.

None of the parties contests the justice of plaintiffs’ cause. President Clinton and the other defendants, however, maintain that the dictates of the Constitution and the decisions of the Supreme Court bar us from providing the relief plaintiffs seek. Any such relief, they say, must come through the political process.

Plaintiffs’ grievances are serious, and we have given them the most serious consideration. In the end, however, we are constrained to agree with defendants that the remedies plaintiffs request are beyond this court’s authority to grant.

On June 30, 1998, D.C. resident Lois Adams and nineteen co-plaintiffs filed suit in

Adams v. Clinton.

Their complaint alleges that the failure to apportion congressional representatives to the District, and to permit District residents to vote in House and Senate elections, violates their constitutional rights to equal protection of the laws and to a republican form of gov

*38

ernment. They further contend that those same rights are violated by Congress’s exercise of exclusive jurisdiction over the District, and by its denial to plaintiffs of “a state government, insulated from Congressional interference in matters of local concern.”

Adams

Compl. H109. In connection with the latter claim, they seek an injunction directing the District of Columbia Financial Responsibility and Management Assistance Authority, commonly known as the “Control Board,”

to “take no further action” and to “disband itself.”

Id.

at 28. The

Adams

complaint names as defendants President William Jefferson Clinton, the Clerk and the Sergeant at Arms of the House of Representatives, and the Control Board.

On September 14, 1998, District of Columbia resident Clifford Alexander, fifty-six other residents of the District, and the District itself filed suit in

Alexander v. Daley.

Like their counterparts in

Adams,

the

Alexander

plaintiffs allege that their inability to vote for representatives and senators violates their rights to equal protection and to a republican form of government. The

Alexander

plaintiffs also allege that the denial of congressional representation violates their right to due process and abridges their privileges and immunities as citizens of the United States. Finally, they contend that the denial of their right to vote violates Article I and the Seventeenth Amendment of the Constitution, which provide that the members of the House shall be chosen by “the People of the several States” and that senators shall come “from each State, elected by the people thereof.” U.S. CONST, art. I, § 2, cl. 1;

id.

amend. XVII, cl. 1. The

Alexander

complaint names as defendants Secretary of Commerce William M. Daley; the Clerk, the Sergeant at Arms, and the Chief Administrative Officer of the House of Representatives; the Secretary and the Doorkeeper/Sergeant at Arms of the Senate; and the United States.

On November 3, 1998, a single-judge district court consolidated the two lawsuits.

See Adams v. Clinton,

Civ. No. 98-1665 (D.D.C. Nov. 3, 1998) (Oberdorfer, J.). On November 6, that court granted motions by both sets of plaintiffs to appoint a three-judge district court pursuant to 28 U.S.C. § 2284 (a), which provides that “[a] district court of three judges shall be convened ... when an action is filed challenging the constitutionality of the apportionment of congressional districts.”

See Adams v. Clinton,

26 F.Supp.2d 156, 160 (D.D.C.1998) (Oberdorfer, J.). This court subsequently convened, disposed of certain preliminary motions,

see Adams v. Clinton,

40 F.Supp.2d 1, 5 (D.D.C.1999), and heard oral argument.

Currently pending are motions to dismiss or for summary judgment on behalf of each of the parties. All parties agree that the consolidated lawsuits contain no genuine issue as to any material fact and that decision on the pending motions is appropriate. We first address whether all of the claims disputed in these motions are properly before this three-judge panel. We then address the standing of plaintiffs to pursue those claims that are properly before us. Finally, we examine the merits of those claims.

The parties have not asked us to revisit the original judge’s determination that this case falls within the confines of the three-judge court statute, and we will not do so insofar as the complaints allege the failure to apportion members of the House of Representatives to the District. We have, however, determined that this court should relinquish jurisdiction over the other claims raised in the complaints and pending motions. These include both complaints’ demands for representation in the Senate, which, because they do not “challeng[e] the constitutionality of the apportionment of congressional districts,”

*39

plainly fall outside the jurisdictional mandate of section 2284(a). They also include the

Adams

plaintiffs’ challenges to Congress’ continuing exercise of exclusive authority over matters of local concern, particularly their challenge to the existence of the Control Board. Although these claims involve some issues akin to those found in the representation claims, they do not directly challenge congressional apportionment and therefore also fall outside the language of section 2284(a).

Cf. Public Serv. Comm’n v. Brashear Freight Lines,

312 U.S. 621, 625 , 61 S.Ct. 784 , 85 L.Ed. 1083 (1941) (holding that three-judge court should not consider “questions not within the statutory purpose for which the two additional judges ha[ve] been called”).

Not only do the aforementioned claims fall outside the scope of section 2284(a), but they are also not the type of claims over which three-judge courts commonly assert supplemental jurisdiction.

See generally Allee v. Medrano,

416 U.S. 802, 812 , 94 S.Ct. 2191 , 40 L.Ed.2d 566 (1974) (indicating that three-judge courts may assert ancillary jurisdiction over certain non-three-judge claims);

Lake Carriers’ Ass’n v. MacMullan,

406 U.S. 498 , 504 n. 5, 92 S.Ct. 1749 , 32 L.Ed.2d 257 (1972) (same). For example, it is not necessary to resolve the Senate and Control Board claims in order to provide a “final and authoritative decision of the controversy” among the parties involved in the apportionment claims.

Public Serv. Comm’n,

312 U.S. at 625 n. 5, 61 S.Ct. 784 ;

see also Rosado v. Wyman,

397 U.S. 397, 402 , 90 S.Ct. 1207 , 25 L.Ed.2d 442 (1970) (stating that three-judge court must decide non-constitutional claims “in preference to deciding the original constitutional claim” for which court convened).

Because the claims that do not directly challenge the apportionment of representatives do not implicate the concerns that have traditionally caused three-judge courts to exercise supplemental jurisdiction, it may be improper for us to exercise such jurisdiction over them.

Cf. Perez v. Ledesma,

401 U.S. 82, 86-87 , 91 S.Ct. 674 , 27 L.Ed.2d 701 (1971) (holding that three-judge court convened to hear challenges to certain state laws did not have jurisdiction over related attack on similar local ordinance). Even if our jurisdiction over those claims were proper, however, we would retain the discretion not to exercise it.

See Turner Broad, Sys., Inc. v. FCC,

810 F.Supp. 1308, 1314 (D.D.C.1992) (three-judge court). As we noted at an earlier stage in these proceedings, the Supreme Court has indicated that “even when [a] three-judge court has jurisdiction over [an] ancillary claim, ‘the most appropriate course’ may be to remand it to [a] single district judge.”

Adams,

40 F.Supp.2d at 5 (quoting

Hagans v. Lavine,

415 U.S. 528, 544 , 94 S.Ct. 1372 , 39 L.Ed.2d 577 (1974));

see also Diven v. Amalgamated Transit Union Int’l & Local 689,

38 F.3d 598, 601 (D.C.Cir.1994).

Remand of the non-apportionment claims is the appropriate course here. There is no doubt that resolution of the Senate and Control Board claims would take us far afield from the core of the original jurisdictional grant, and at the same time deprive the Court of Appeals of the opportunity to review our work.

See

28 U.S.C. § 1253 (providing that final judgment of three-judge district court is appealable directly to Supreme Court). To avoid reaching “constitutional questions we need not reach, asserting authority we may not have,”

Adams,

40 F.Supp.2d at 5 , we will address here only those claims that challenge the constitutionality of an

*40

apportionment of congressional districts that fails to account for the District of Columbia and its residents. The balance of the claims are remanded for determination by the single district judge before whom they were originally filed.

Ill

Before reaching the merits of the claims for representation in the House, we must determine two further questions regarding our jurisdiction: whether plaintiffs’ challenge represents a nonjusticiable political question, and whether plaintiffs have the requisite standing to bring it.

See Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 , 118 S.Ct. 1003, 1012 , 140 L.Ed.2d 210 (1998) (holding that Article III courts must consider jurisdictional questions before deciding merits of causes of action).

The defendant House officials contend that this case presents a nonjusticiable political question because there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department.”

Baker v. Carr,

369 U.S. 186, 217 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962). Specifically, they assert that because Article I of the Constitution limits voting to residents of the fifty states, only congressional legislation or constitutional amendment can remedy plaintiffs’ exclusion from the franchise.

We do not agree that the political question doctrine bars our consideration of this case. The Supreme Court has repeatedly declared that “[cjonstitutional challenges to apportionment are justiciable.”

Franklin v. Massachusetts,

505 U.S. 788 , 801 & n. 2, 112 S.Ct. 2767 , 120 L.Ed.2d 636 (1992) (plurality opinion of O’Connor, J.) (citing U.S.

Department of Commerce v. Montana,

503 U.S. 442 , 112 S.Ct. 1415 , 118 L.Ed.2d 87 (1992));

accord Wesberry v. Sanders,

376 U.S. 1, 6 , 84 S.Ct. 526 , 11 L.Ed.2d 481 (1964). The resolution of this dispute is “textually committed” only if we assume before we begin that plaintiffs cannot prove what they allege: that District residents are among those qualified to vote for congressional representatives under Article I. That purely legal issue is one the courts are perfectly capable of resolving, and is similar to those the Supreme Court has repeatedly found appropriate for judicial resolution.

See, e.g., Montana,

503 U.S. at 458-59 , 112 S.Ct. 1415 (“[Tjhe interpretation of the apportionment provisions of the Constitution is well within the competence of the Judiciary. The political question doctrine presents no bar to our reaching the merits of this dispute ....”) (citations omitted);

Baker,

369 U.S. at 226 , 82 S.Ct. 691 .

Next, we consider plaintiffs’ standing to bring these consolidated actions. The Supreme Court has summarized the requirements for standing as follows:

[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of .... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992) (footnote, citations, and internal quotations omitted). For the purposes of standing analysis, we “assume the validity of a plaintiffs substantive claim.”

Catholic Soc. Serv. v. Shalala,

12 F.3d 1123, 1126 (D.C.Cir.1994);

accord Warth v. Seldin,

422 U.S. 490, 500 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975) (“[Standing in no way depends on the merits of the plaintiffs contention that particular conduct is illegal ....”);

Claybrook v. Slater,

111 F.3d 904, 907 (D.C.Cir.1997);

United States House

*41

of Representatives v. United States Dep’t of Commerce,

11 F.Supp.2d 76, 83 (D.D.C.1998) (three-judge court),

appeal dismissed,

525 U.S. 316 , 119 S.Ct. 765 , 142 L.Ed.2d 797 (1999).

Defendants do not seriously dispute that plaintiffs’ lack of representation in the House satisfies the “injury in fact” requirement.

See

Tr. of Mot. Hr’g at 70. “No 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.”

Wesberry,

376 U.S. at 17 , 84 S.Ct. 526 (invalidating malapportioned congressional districts). Hence, if the residents of the District are entitled to such a voice — which we must presume for purposes of standing analysis — its denial plainly constitutes an “injury in fact.”

See Department of Commerce v. United States House of Representatives,

525 U.S. 316 , 119 S.Ct. 765, 774 , 142 L.Ed.2d 797 (1999) (holding that resident’s “expected loss of a Representative to the United States Congress” through reapportionment “undoubtedly satisfies the injury-in-fact requirement of Article III standing”);

Michel v. Anderson,

14 F.3d 623, 626 (D.C.Cir.1994) (noting that “[i]t is obvious that Georgia voters would have suffered an injury” if “the House were to prevent all congressmen from the State of Georgia from voting in the House”).

Defendants focus instead on the second and third prerequisites of standing: the requirements of causation and redressability. That analysis in turn, focuses on the statutory process for apportionment of congressional districts. The Secretary of Commerce is required, within nine months of completing the decennial census, to report to the President the total population of each state for purposes of congressional apportionment.

See

13 U.S.C. § 141 (b).

Upon receiving the report, the President must transmit to Congress “a statement showing the whole number of persons in each State ... and the number of Representatives to which each State would be entitled under an apportionment of the then existing number of Representatives.” 2 U.S.C. § 2a(a). “Each State shall be entitled ... to the number of Representatives shown” in the President’s statement, and within fifteen days of receiving that statement, the Clerk of the House must “send to the executive of each State a certificate of the number of Representatives to which such State is entitled .... ”

Id.

§ 2a(b); see

Franklin,

505 U.S. at 792 , 112 S.Ct. 2767 . The Secretary concedes that he has not included, and does not plan to include, a separate entry for the District of Columbia in his report to the President. Nor has he included, nor does he plan to include, the District’s population within that of any state.

With respect to causation, the Secretary of Commerce and the Clerk of the House contend that they bear no individual responsibility for the exclusion of the District from the apportionment process because they are merely carrying out the constitutional requirement (repeated

in haec verba

in the statute) that representatives be apportioned “among the several States,”

and because the District of Columbia is not a state. This argument once again assumes that plaintiffs will not prevail on the merits. We, however, must assume here that plaintiffs will prevail, and hence that the District

a “state” for apportionment purposes and that the Constitution is not the cause of their electoral disability.

The more difficult standing question is that of redressability. Secretary Daley contends that even if we may order him to include the District’s citizens within his

*42

report,

the President is not bound to accept that report. He further argues that we are without power to enjoin the President if he refuses to adhere to a declaration in plaintiffs’ favor. Making an analogous argument, the Clerk of the House contends that the Speech or Debate Clause

likewise prevents us from enjoining her should she decide not to comply with our declaration of the law. Defendants argue that, because the chain of causation may be broken in these two places, plaintiffs cannot satisfy the requirement of redressability.

We are guided in our resolution of this issue by the Supreme Court’s resolution of a similar dispute in

Franklin v. Massachusetts,

which arose out of a three-judge court proceeding pursuant to the same jurisdictional statute at issue here.

See

505 U.S. at 788 , 112 S-Ct. 2767. In that case, Massachusetts and two of its residents challenged the method used by the then-Secretary of Commerce for allocating overseas military personnel among the states for apportionment purposes — a method that resulted in Massachusetts losing a seat in the House.

See id.

at 790 , 112 S.Ct. 2767 , The plaintiffs sued the President, the Secretary of Commerce, the Clerk of the House, and Census Bureau officials for violating the Administrative Procedure Act (APA) and the Constitution. As in this case, the defendants contended that the court could not grant injunctive relief against the President, and that absent such relief, a judgment against the remaining defendants would fail to redress the plaintiffs’ injury.

See id.

at 802-03 , 112 S.Ct. 2767 .

Although divisions among the Justices make the Court’s opinion difficult to parse, it nonetheless appears that eight Justices rejected the contention that the

Franklin

plaintiffs lacked standing. Four Justices agreed with the defendants that, at a minimum, the prospect of an injunction against the President was “extraordinary, and should have raised judicial eyebrows.”

Id.

at 802 , 112 S.Ct. 2767 (plurality opinion of O’Connor, J.). Those four concluded, however, that they could avoid deciding the propriety of granting relief against the President (or the House officials) because the plaintiffs’ injury was likely to be redressed by declaratory relief against the Secretary of Commerce alone.

See id.

at 803 , 112 S.Ct. 2767 . A judgment against the Secretary would be enough to cause her to send the correct numbers, the four Justices thought, and it was fair to assume that the President and the congressional officials would then follow the law as the Court articulated it:

[A]s the Solicitor General has not contended to the contrary, we may assume it is substantially likely that the President and other executive and congressional officials would abide by an authoritative interpretation of the census statute and constitutional provision by the District Court, even though they would not be directly bound by such a determination.

Id.

Accordingly, the four went on to consider the merits of plaintiffs’ constitutional argument, ultimately holding against them.

See id.

at 806 , 112 S.Ct. 2767 .

*43

Four more Justices concurred in the judgment against plaintiffs without addressing standing. They did, however, conclude that the President’s role in the apportionment process was strictly ministerial, and thus that the Secretary’s report could be challenged as “final agency action” under the APA.

See id.

at 807, 808-17 , 112 S.Ct. 2767 (Stevens, J., concurring in part). “[T]he statute,” these four said, “does not contemplate the President’s changing the Secretary’s report.”

Id.

at 814 , 112 S.Ct. 2767 . Because these four Justices went on to consider (and deny) the merits of the plaintiffs’ claims, the sole Justice dissenting on the issue of standing concluded that they had necessarily found it to exist.

See id.

at 823-24 & n. 1, 112

S.Ct. 2767

(Scalia, J., concurring in part). Even if that was not necessarily so,

the view of these four regarding the President’s lack of discretion supports plaintiffs’ claim of redressability. Since, in the view of these four Justices, the President is without discretion to modify the Commerce Secretary’s report,

the ability of the court to enjoin the Secretary establishes the necessary redressability.

Deriving a governing principle from the opinions of a fragmented Court is always problematic.

Nonetheless, we are bound to tiy to discern such a principle.

Cf. Marks v. United States,

430 U.S. 188, 193 , 97 S.Ct. 990 , 51 L.Ed.2d 260 (1977) (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds ....”) (internal quotation omitted). In

Franklin ,

eight Justices reached one common conclusion: that a judgment directing the Secretary of Commerce to report the population of the states in a specified way would directly affect the apportionment of the House, either because the President would voluntarily abide by it or because the President had no choice but to abide by it.

Although

Franklin

is not identical to the case before us, it is sufficiently analogous to govern our determination of plaintiffs’ standing. This case involves the same apportionment statute as that at issue in

Franklin .

The Secretary of Commerce plays the same role here as the Secretary did there, and is equally amenable to suit. Here, as in

Franklin ,

neither the President nor the House officials have suggested that they would refuse to follow a decision of this court (assuming, of course, that it were upheld on appeal) regarding the apportionment of congressional districts.

Hence, we can conclude that plaintiffs sat

*44

isfy the redressability prong of the standing inquiry and, as in

Franklin ,

can do so without deciding whether the President or the Clerk is subject to suit.

The distinction the Executive Branch defendants draw between the two cases is not significant. They contend that unlike

Franklin ,

which involved the Secretary’s policy decision regarding how the census should count military personnel living abroad, here the Secretary is merely carrying out what he perceives the Constitution to require. As defendants point out, the plurality opinion in

Franklin

observed that “[t]he Secretary certainly has an interest in defending her policy determinations concerning the census” and therefore “has an interest in litigating” the accuracy of reapportionment.

Franklin,

505 U.S. at 803 , 112 S.Ct. 2767 (plurality opinion of O’Connor, J.). Because in this case Secretary Daley is not defending one of his own policy decisions, defendants contend that we cannot find he has sufficient stake in the outcome of these suits.

Defendants’ argument amounts to a claim that the parties lack the “concrete adverseness” necessary to assure that there is an actual “case” or “controversy” within the meaning of Article III of the Constitution.

See Gollust v. Mendell,

501 U.S. 115, 125-26 , 111 S.Ct. 2173 , 115 L.Ed.2d 109 (1991) (quoting

Baker,

369 U.S. at 204 , 82 S.Ct. 691 );

Diamond v. Charles,

476 U.S. 54, 61-62 , 106 S.Ct. 1697 , 90 L.Ed.2d 48 (1986). That claim is not persuasive. Nothing in

Franklin

suggested that its standing analysis turned on the fact that the Secretary’s decision was based on her view of policy rather than law. Although Secretary Daley’s decision to exclude District residents is based on his interpretation of what the Constitution (and the statute that follows it verbatim) requires, his interest in and responsibility for defending that interpretation is at least as substantial as his interest in defending his policy judgments.

See

U.S. CONST, art. VI, cl. 3 (“[A]ll executive and judicial Officers, both of the United States and the several States, shall be bound by Oath or Affirmation, to support this Constitution .... ”). And as we have already concluded that plaintiffs have suffered constitutional “injury in fact” from the denial of their right to vote, the fact that the injury arises out of a dispute of law rather than policy does not deprive them of standing to sue.

Before concluding our standing analysis, we must also consider the fact that the

Adams

plaintiffs, unlike their

Alexander

counterparts, did not name the Secretary of Commerce as a defendant. We do not regard this as fatal to applying

Franklin

to the

Adams

complaint. In

Swan v. Clinton,

this Circuit held that, when necessary to satisfy the redressability component of standing, a court may constructively amend a complaint to include prayers for relief against unnamed defendants in their official capacities who might otherwise be in a position to frustrate the implementation of a court order.

See

100 F.3d 973 , 979-80

n. 3 (D.C.Cir.1996) (citing,

inter alia, United States v. New York Tel. Co.,

434 U.S. 159, 174 , 98 S.Ct. 364 , 54 L.Ed.2d 376 (1977)). Here it is not even necessary to constructively amend the complaint to bring the additional defendant before the court, because the

Alexander

plaintiffs did sue the Secretary, and we have consolidated the two cases. The Secretary is therefore already before us, and his counsel has

*45

already raised all of the appropriate arguments on his behalf.

Finally, we must address the question of whether the failure of both complaints to include Maryland election officials as defendants poses an insuperable obstacle to redressability, given that one proposed remedy is to permit plaintiffs to vote for representatives as if they were citizens of Maryland. Although there is no guarantee that Maryland officials would permit District residents to vote there even if we directed the Secretary to count them as Maryland citizens for purposes of apportionment, the fact that officials who are not parties to these cases are in a position to thwart one of many potential remedies does not defeat our jurisdiction.

See id.

at 980-81. Moreover, plaintiffs point out that if we were to find them to be Maryland citizens for purposes of congressional voting, a remedy could be crafted that would not necessarily rely on Maryland’s electoral machinery.

See Alexander

Pis.’ Consolidated Mem. in Opp’n to Defs.’ Mots, to Dismiss at 35 n. 18 [hereinafter

Alexander

Pis.’ Opp’n] (suggesting that votes of District residents be counted separately and added to Maryland totals); Tr. of Mot. Hr’g at 114-15.

In sum, we conclude that the plaintiffs in these consolidated cases have standing to raise claims challenging the constitutionality of the exclusion of the District of Columbia from the apportionment of congressional districts.

We now turn to the merits of plaintiffs’ claims. In this Part, we consider the

Alexander

plaintiffs’ contention that their right to vote in congressional elections is guaranteed by Article I of the Constitution, as well as defendants’ opposing argument that the same Article precludes such a right. In Part V, we consider additional arguments, raised by both groups of plaintiffs, premised on other provisions of the Constitution.

Article I, section 2, clause 1 of the Constitution provides:

The House of Representatives shall be composed of Members chosen every second Year

by the People of the several States,

and the Electors in each

Slate

shall have the Qualifications requisite for Electors of the most numerous Branch of the

State

Legislature.

U.S. CONST, art. I, § 2, cl. 1 (emphasis added). Although standing alone the phrase “people of the several States” could be read as meaning all the people of the “United States” and not simply those who are citizens of individual states, the Article's subsequent and repeated references to “statefs]” — beginning with the balance of the same clause quoted above — make clear that the former was not intended.

See, e.g., id.

(electors “in each State” shall have qualifications of electors of most numerous branch “of the State Legislature”);

id.

art. I, § 2, cl. 2 (each representative shall “be an Inhabitant of that State” in which he or she is chosen);

id.

art. 1, § 2, cl. 3 (representatives shall be “apportioned among the several States which may be included within this Union”);

id.

(“each State shall have at Least one Representative”);

id.

art. I, § 2, cl. 4 (the Executive Authority of the “State” shall fill vacancies);

id.

art. I, § 4, cl. 1 (the legislature of “each State” shall prescribe times, places, and manner of holding elections for representatives). Indeed, for this reason — and as the

Alexander

plaintiffs concede — residents of United States territories are not entitled to vote in federal

*46

elections, notwithstanding that they are United States citizens.

Plaintiffs accordingly do not dispute that to succeed they must be able to characterize themselves as citizens of a “state.”

See Alexander

Pis.’ Opp’n at 15;

accord, Adams

Pis.’ Opp’n to the Federal Defs.’ Mots, to Dismiss at 51 [hereinafter

Adams

Pis.’ Opp’n]. Instead, they contend that District residents can fairly be characterized as citizens of a “state,” as the term was intended in Article I, under either of two theories. First, they argue that the District of Columbia itself may be treated as a state through which its citizens may vote. Second, they contend that District citizens may vote in congressional elections through the State of Maryland, based on their “residual” citizenship in that state— the state from whose territory the current District was originally carved. In the following sections we consider the validity of each theory.

The

Alexander

plaintiffs’ first theory is that “the District itself may be treated as the ‘state’ through which its citizens may vote” under Article I. Mem. in Supp. of Mot. of Pis. Alexander et al. for Summ. J. at 48 [hereinafter

Alexander

Pis.’ Summ. J. Mem.]. As plaintiffs correctly note, the Supreme Court has on occasion interpreted the constitutional term “state” to include the District.

See Loughran v. Loughran,

292 U.S. 216, 228 , 54 S.Ct. 684 , 78 L.Ed. 1219 (1934) (holding that Full Faith and Credit clause binds “courts of the District ... equally with courts of the States”);

cf. Callan v. Wilson,

127 U.S. 540, 550 , 8 S.Ct. 1301 , 32 L.Ed. 223 (1888) (holding that right to trial by jury extends to residents of District).

As they concede, however, the Court also has interpreted the term “state” to exclude the District.

See, e.g., Hepburn & Dundas v. Ellzey,

6 U.S. (2 Cranch) 445, 452 , 2 L.Ed. 332 (1805) (holding that diversity jurisdiction provision of Article III, section 2 does not cover cases in which one party is resident of District, because “the members of the American confederacy only are the states contemplated in the constitution”).

The measure of “[w]hether the District of Columbia constitutes a ‘State or Territory’ within the meaning of any particular ... constitutional provision depends upon the character and aim of the specific provision involved.”

District of Columbia v. Carter,

409 U.S. 418, 420 , 93 S.Ct. 602 , 34 L.Ed.2d 613 (1973).

The cases plaintiffs cite do not involve Article I, nor do they involve constitutional rights that textually appear to require citizenship

*47

(or residence) in a state.

Defendants argue that, by contrast, when dictating the composition of Congress, the Constitution leaves no doubt that only the residents of actual states are entitled to representation. An examination of the Constitution’s language and history, and of the relevant judicial precedents, persuades us that defendants are correct and that the District-as-state theory is untenable.

1. We begin with the language of Article I, which makes clear just how deeply Congressional representation is tied to the structure of statehood. Indeed, as we explore each relevant constitutional provision, it becomes apparent how far afield from the common understandings of the relevant terms we would have to go to sustain plaintiffs’ theory.

As previously noted, besides stating that the House shall be composed of members chosen by the people of the several states, clause I of Article I, section 2 requires that voters (“Electors”) in House elections “have the Qualifications requisite for the Electors of the most numerous branch of

the State Legislature.”

U.S. CONST, art. I, § 2, cl. 1 (emphasis added).

If the District were regarded as a state for purposes of this provision, what could the reference to “State Legislature^]” mean? The thirteen original states all had such legislatures, as do each of the present fifty. But for most of its history, the District of Columbia has had nothing that could even roughly be characterized as a legislature for the entire District.

Although plaintiffs point to the existence of the current elected city council,

see Alexander

Pis.’ Opp’n at 24, Congress did not pass the “home rule” statute creating that entity until 1973, and the Court of Appeals for this Circuit has indicated that such a body is not constitutionally required.

A right

*48

to vote that depends upon the existence of such an occasional institution can hardly have been what the Framers contemplated.

Moreover, and more important, it is clear that the ultimate legislature the Constitution envisions for the District is not a city council, but rather Congress itself. The District Clause expressly grants Congress the power to “exercise exclusive Legislation in all Cases whatsoever” over the district that would become the seat of government. U.S. CONST, art. 1, § 8, cl. 17. Plaintiffs themselves argue that in the “absence” of a city council, Congress should be considered the state legislature for purposes of Article I.

See Alexander

Pis.’ Opp’n at 24. But Congress cannot be characterized as a “state legislature” without doing violence to the meaning of that term. Indeed, to characterize it as such would turn the Qualifications Clause into a circle without beginning or end. Under section 2, clause 1, House voters must have the qualifications requisite for voters of the most numerous branch of the state legislature. If that legislature were Congress itself, with the House as its most numerous branch, then the clause would say no more than that voters for. the House must have the qualifications requisite for voters for the House — a tautology without constitutional content.

Including the District within the definition of “state” is also inconsistent with the provisions of clause 3 of Article I, section 2, the clause that directly addresses the issue of congressional apportionment. That clause provides that “Representatives ... shall be apportioned among

the several States which may he included unthin this Union,

according to their respective numbers.” U.S. CONST, art. I, § 2, cl. 3 (emphasis added).

That provision plainly contemplates true states and not the District, which neither was one of the original states nor has been “admitted by the Congress into this Union.”

Id.

art. IV. § 3, cl. 1. Indeed, the “Seat of Government” contemplated by the Constitution is subsequently described in Article I as a “District,” in contrast to the “particular States” whose cessions of territory were expected to create it.

And, as if to remove any doubt, clause 3 goes on to identify specifically those thirteen entities it regards as the immediate post-ratification states, and to assign each an initial apportionment of representatives until an “actual Enumeration” of “each Statefs]” “respective Numbers” can be accomplished.

Id.

art. I, § 2, cl. 3.

The District is not included

*49

within that initial apportionment.

The effort to define the District as a state generates still further incongruities with respect to the next clause of Article I, section 2. Clause 4 provides: “When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”

Id.

art. I, § 2, cl. 4. But who or what is “the Executive Authority” of the District? Plaintiffs offer the current home-rule mayor as that authority,

see Alexander

Pis.’ Opp’n at 24, but we again are confronted by the relative recency of that position.

See supra note

19. And we also again have the problem that it is Congress that is the ultimate executive authority for the District.

See Northern Pipeline Constr. Co. v. Marathon Pipe Line Co.,

458 U.S. 50, 76 , 102 S.Ct. 2858 , 73 L.Ed.2d 598 (1982) (“Congress’ power over the District of Columbia encompasses the full authority of government, and thus, necessarily, the Executive and Judicial powers as well as the Legislative.”). The possibility that the Framers intended Congress to fill its own vacancies seems far too much of a stretch, even if the constitutional fabric were more flexible than it appears to be.

When we turn to the provisions of the Constitution that originally governed voting for the Senate, the complications of defining the District as a state become even more apparent. Although we are remanding the merits of plaintiffs’ claims for Senate representation to a single-judge court, the relationship between the House and Senate provisions nonetheless requires us to examine the latter in order to determine the Framers’ intentions with respect to the House.

As originally provided under Article I, section 3, the Senate was to be “composed of two Senators from each State,” chosen not “by the People of the several States,” as in the case of the House, but rather

“by the Legislature thereof.”

U.S. CONST, art. I, § 3, cl. 1 (emphasis added). The impossibility of treating Congress as the legislature under that clause is manifest, as doing so would mean that Congress would itself choose the District’s senators. The scenario is further complicated by the fact that clause 2 of the same section provides that Senate vacancies will be filled not just by the state’s “Executive,” as with the House, but also by the state’s “Legislature” when not in recess.

Id.

art. I, § 3, cl. 2. Since, as noted above, Congress is ultimately both the Legislature and Executive for the District, plaintiffs’ theory would mean that Congress would fill vacancies in the District’s Senate seats— except when Congress is in recess, in which event Congress would also fill the vacancies.

It is, of course, not surprising to conclude that the Framers did not contemplate allocating two senators to the District of Columbia. The Senate was expressly viewed as representing the states themselves,

see

THE FEDERALIST NOS. 10, 39, 58, 62 (James Madison) (Jacob E. Cooke ed., 1961), and the guarantee of two senators for each

*50

was an important element of the Great Compromise between the smaller and larger states that ensured ratification of the Constitution: the smaller states were guaranteed equal representation notwithstanding their smaller populations.

See Reynolds v. Sims,

377 U.S. 533, 574 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964);

Wesberry,

376 U.S. at 12-13 , 84 S.Ct. 526 ;

see also Wisconsin v. City of New York,

517 U.S. 1, 14-15 , 116 S.Ct. 1091 , 134 L.Ed.2d 167 (1996) (“[T]he Constitution itself, by guaranteeing a minimum of one representative for each State, made it virtually impossible in interstate apportionment to achieve the [one person, one vote] standard imposed by

Wesberry.”).

In sum, notwithstanding the force of the one person, one vote principle in our constitutional jurisprudence, that doctrine cannot serve as a vehicle for challenging the structure the Constitution itself imposes upon the Congress.

See Breakefield v. District of Columbia,

442 F.2d 1227 , 1228 & n. 4 (D.C.Cir.1970) (rejecting contention that lack of representation rendered congressional tax on District unlawful under “one-man one-vote” decision in Wesberry). This analysis also forecloses plaintiffs’ contention that the disparity between their treatment and that of enclave residents violates equal protection.

As we held in

*68

Part IV.A, the inability of District residents to vote is a consequence of Article I. Similarly, as we discussed in Part IV.B.4, the contrasting ability of enclave residents to vote is not the consequence of legislative line drawing, but rather of the Supreme Court’s decision in

Evans

that enclave residents have a constitutional right to vote— a holding we are unable to extend to District residents both because of distinctions between the manner in which Congress has exercised its authority over the enclaves and the District, and because of the Supreme Court’s decision in

Albaugh. See

discussion

supra

Part IV.B.4. Hence, the differing treatment is the consequence not of legislative determinations but of constitutional distinctions. This court is without authority to scrutinize those distinctions to determine whether they are irrational, compelling, or anything in between.

Plaintiffs also contend that the right to vote for members of Congress is a privilege of national citizenship. Although the Fourteenth Amendment’s Privileges or Immunities Clause

is phrased as a protection of such privileges against abridgement by the states,

plaintiffs further contend that its protections “are incorporated against the federal government by the fifth amendment in the same fashion as are the principlés of equal protection.”

Alexander

Pls.’ Opp’n at 11 (citing

Bolling,

347 U.S. at 500 , 74 S.Ct. 693 ).

The denial of District residents’ right to vote, plaintiffs conclude, abridges this right of national citizenship in violation of the Constitution.

We do not disagree that the “right to vote for national officers” is a “right[ ] and privilege[ ] of national citizenship.”

Twining v. New Jersey,

211 U.S. 78, 97 , 29 S.Ct. 14 , 53 L.Ed. 97 (1908) (citing

Ex parte Yarbrough,

110 U.S. 651 , 4 S.Ct. 152 , 28 L.Ed. 274 (1884));

accord In re Quarles,

158 U.S. 532, 535 , 15 S.Ct. 959 , 39 L.Ed. 1080 (1895). Nor do we dispute Justice Kennedy’s statements, in a concurrence repeatedly cited by plaintiffs, that this right arises out of the “relationship between the people of the Nation and their National Government, with which the States may not interfere.”

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779, 845 , 115 S.Ct. 1842 , 131 L.Ed.2d 881 (1995) (Kennedy, J., concurring);

see id.

at 844 , 115 S.Ct. 1842 (“[T]he federal right to vote ... do[es] not derive from the state power in the first instance but ... belong[s] to the voter in his or her capacity as a citizen

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of the United States.”).

Indeed, as we noted above, it is Article I, section 2 that confers “the right to vote in federal elections.”

Harper,

383 U.S. at 665 , 86 S.Ct. 1079 ;

accord, U.S. v. Classic,

313 U.S. 299, 314-15 , 61 S.Ct. 1031 , 85 L.Ed. 1368 (1941). That, however, can hardly be the end of the inquiry, as even plaintiffs concede that residents of the territories do not have the right to vote in congressional elections, notwithstanding that they, too, are national (American) citizens.

Cf. De La Rosa v. United States,

32 F.3d 8 (1st Cir.1994);

Attorney Gen. of Territory of Guam v. United States,

738 F.2d 1017 (9th Cir.1984).

Rather, it is precisely because it is Article I that confers the federal right to vote that we must look to that Article to provide its content and define its boundaries. Article I grants that right only to those who “have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” U.S. CONST, art. I, § 2, cl. I.

Furthermore, it apportions representatives only “among the several States which may be included within this Union.”

Id.

art. I, § 2, cl. 3. Thus, in Justice Kennedy’s own words, the “Constitution uses state boundaries to fix the size of congressional delegations.”

U.S. Term Limits, Inc.,

514 U.S. at 841 , 115 S.Ct. 1842 (Kennedy, J., concurring).

Because we have previously concluded that the District cannot be characterized as a state for these purposes, and because therefore the

*70

constitutional provision that creates the federal right to vote does not include District residents within its terms, denial of the vote to those residents does not abridge their national privileges or immunities.

In further support of the privileges or immunities argument, plaintiffs reason by-analogy to the arguments that prevailed in

U.S. Term Limits, Inc.

In that case, the Supreme Court struck down an Arkansas law that limited the state’s congressional representatives to a fixed number of terms. In so doing, the Court relied not on the Privileges or Immunities Clause, but on the two Qualifications Clauses that set forth the qualifications for members of Congress.

See

U.S. CONST. art. I, § 2, cl. 2;

id.

art. I, § 3, cl. 3.

Just as Arkansas “violated its citizens’ privileges of national citizenship when it attempted to restrict their right to vote for the congressional representatives of their choice,” plaintiffs argue, “[t]he defendants here violate the same constitutional privilege by denying the right of District residents to vote in Congressional elections.”

Alexander

Pis.’ Summ. J. Mem. at 41.

For two reasons,

U.S. Term Limits

has no application to the instant controversy. First, the congressional Qualifications Clauses at issue in that case are the structural opposites of the voter Qualifications Clause at issue here. The former set forth specific lists of qualifications that members of Congress must satisfy.

See supra

note 71. The Court held those lists to be exclusive, striking down Arkansas’ term limits on the ground that the state was without authority to add to them.

See U.S. Term Limits, Inc.,

514 U.S. at 806 , 115 S.Ct. 1842 . By contrast, the voter Qualifications Clause, U.S. CONST. art. I, § 2, cl. 1, contains no such list, but rather merely incorporates the relevant state’s own set of voter qualifications.

See U.S. Term Limits, Inc.,

514 U.S. at 806 , 115 S.Ct. 1842 (noting “explicit[ ] contrast[ ]” between “state control over the qualifications of electors [and] the lack of state control over the qualifications of the elected”).

Second, and more fundamentally, the denial of District residents’ right to vote is not the consequence of the addition of any extra-constitutional qualification on voting, as in

U.S. Term Limits.

Rather, it is the result of applying precisely those qualifications contained in the Constitution itself.

See supra

Part IV. Accordingly, plaintiffs exclusion from the franchise violates neither the principles of

U.S. Term Limits,

nor the dictates of the Privileges or Immunities Clause.

Plaintiffs contend that the right to vote in congressional elections is also protected by the Due Process Clause of the Fifth Amendment, which provides that no person shall be “deprived of life, liberty, or property, without due process of law.” U.S. CONST, amend. V. Because the right to vote for one’s own legislators is one of those protected liberties, plaintiffs argue, its denial violates their right to both procedural and substantive due process.

See Alexander

Pls.’ Summ. J. Mem. at 27.

Like the privileges or immunities argument, this contention founders upon its underlying assumption: that District residents have a right to vote in congressional elections. As we have repeatedly stated above, the Constitution does not grant that right except to individuals who qualify under Article I — which District residents do not. Nor can the Due Process Clause, any

*71

more than the Equal Protection Clause, be used to change elements of the composition of Congress that are dictated by the Constitution itself.

Cf. Carliner v. Commissioner,

412 F.2d 1090, 1090 (D.C.Cir.1969) (rejecting argument that Due Process Clause rendered District’s mayor-commissioner and city council unlawful “because the citizens of the District have not been given the opportunity by popular vote to elect” them).

Plaintiffs’ final claim is based on the Republican Guarantee Clause of Article IV, which states: “The United States shall guarantee to every State in this Union a Republican Form of Government ....” U.S. CONST, art. IV, §4. Although recognizing that the Clause is phrased as a guarantee to the states, plaintiffs once again contend that the “Framers cannot have intended anything less for the citizens of the federal government.”

Alexander

Pis.’ Summ. J. Mem. at 43. Plaintiffs argue that the guarantee of a republican form of government is incompatible with their exclusion from representation in Congress.

As the Supreme Court has noted, “[i]n most of the cases in which the Court has been asked to apply the [Guarantee] Clause, the Court has found the claims presented to be norrjusticiable under the ‘political question’ doctrine.”

New York v. United States,

505 U.S. 144, 184 , 112 S.Ct. 2408 , 120 L.Ed.2d 120 (1992);

accord Baker v. Carr,

369 U.S. 186, 218-27 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962). But even if plaintiffs’ claim is justiciable,

it does not present a substantial federal question.

While we cannot be certain precisely what the Framers thought constituted a “Republican Form of Government,” we do know that they intended the District to be subject to the exclusive control of Congress,

see

U.S. CONST, art. I, § 8, cl. 17; that they reserved the power to elect congressional representatives exclusively to those qualified to vote in state elections,

see id.

art. 1, § 2, cl. 1; and that District residents are not so qualified,

see

discussion

supra

Part IV. Accordingly, we cannot adopt plaintiffs’ Republican Guarantee argument without concluding that Article IV of the Constitution was intended to repeal the provisions of Article I. That, of course, we cannot do.

Plaintiffs argue that, even if we cannot find that Article I guarantees their right to vote in congressional elections, we should harmonize that Article with the other provisions discussed in this Part, which, they contend, do protect such a right. We do not disagree that we should strive to read the Constitution in a way that harmonizes its various provisions. We believe, however, that we have done so in the only way the words and historical interpretation of that document permit. Although the provisions considered in this Part protect rights guaranteed by the Constitution, our reading of Article l precludes the conclusion that the right plaintiffs seek to vindicate is one of those. Because the provi

*72

sions of the Constitution that set forth the composition of Congress do not contemplate representation for District residents, we conclude that the denial of representation does not deny them equal protection, abridge their privileges or immunities, deprive them of liberty without due process, or violate the guarantee of a republican form of government.

As we have noted, many courts have found a contradiction between the democratic ideals upon which this country was founded and the exclusion of District residents from congressional representation. All, however, have concluded that it is the Constitution and judicial precedent that create the contradiction.

Moreover, that precedent is of particularly strong pedigree. As Justice Jackson said in following Chief Justice Marshall’s opinion that the District was not a state within the meaning of Article III:

Among his contemporaries at least, Chief Justice Marshall was not generally censured for undue literalness in interpreting the language of the Constitution to deny federal power and he wrote from close personal knowledge of the Founders and the foundation of our constitutional structure. Nor did he underestimate the equitable claims which his decision denied to residents of the District ....

Tidewater,

337 U.S. at 586-87 , 69 S.Ct. 1173 (plurality opinion of Jackson, J.) (citing

Hepburn & Dundas,

6 U.S. (2 Cranch) at 453).

Like our predecessors, we are not blind to the inequity of the situation plaintiffs seek to change. But longstanding judicial precedent, as well as the Constitution’s text and history, persuade us that this court lacks authority to grant plaintiffs the relief they seek. If they are to obtain it, they must plead their cause in other venues. Accordingly, plaintiffs’ motions for summary judgment are denied, and defendants’ motions to dismiss are granted with respect to those claims that challenge the constitutionality of the apportionment of the House of Representatives. The remaining claims are remanded to the single district judge before whom they were originally filed.

An order accompanies this memorandum.

PER CURIAM opinion for the Court filed by Judges GARLAND and KOLLAR-KOTELLY, in which Judge OBERDORFER joins as to Parts I, II, and III.

OBERDORFER, District Judge, filed an opinion dissenting in part.

OBERDORFER, District Judge, dissenting in part, and concurring in part

We the People of the United States, in Order to

...

secure the Blessings of Liberty to ourselves and our Posterity,

*73

do ordain and establish this Constitution for the United States of America.

U.S. Const, preamble.

In 1964, the Supreme Court first recognized that Article I of the Constitution requires States to honor a “one person, one vote” rule in their conduct of elections for the House of Representatives, saying that:

No 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.

Wesberry v. Sanders,

376 U.S. 1, 17-18 , 84 S.Ct. 526 , 11 L.Ed.2d 481 (1964) (emphasis added). More than 30 years after

Wesberyij,

and more than 200 years after ratification of the Constitution, plaintiffs charge, inter alia, that the Secretary of Commerce is obstructing several hundred thousand American citizens — the inhabitants of the District of Columbia — from their exercise of this “precious” right, and seek vindication of that right. An examination of the relevant facts and law yields, to me, the following conclusions:

(1) Article I, section 2, of the Constitution states, in relevant part: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States ....” U.S. Const, art. I, § 2. Section 2 of the Fourteenth Amendment, which replaced but did not materially alter part of Article I, section 2, provides, in relevant part: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

Id.

amend. XIV.

(2) During the years between when the Constitution took effect in 1789 and the federal government’s assumption of exclusive jurisdiction over the area that became the District of Columbia in 1801, inhabitants of that area were “People of the several States,” who, among other things, were apportioned as mandated, U.S. Const, art. 1, § 2, and were entitled to, and enjoyed, the right to vote for voting representation in the House of Representatives, either through Maryland or Virginia,

see infra

Part I.B.3.

(3) The “People of the several States” who voted between 1789 and 1801 in the part of Maryland which became the District

thereby secured for themselves and their political posterity a constitutionally-protected right to be included in a cohort to which a Representative in Congress is apportioned and, if otherwise eligible, to vote for voting representation in the House of Representatives.

(4) In 1791, Maryland had ratified its cession to the United States of the portion of its territory which is now the District of Columbia, specifically including “persons residing or to reside thereon,” but provided that it would continue to exercise jurisdiction until “Congress shall, by law, provide for the government thereof.” An Act Concerning the Territory of Columbia and the City of Washington, 1791 Md. Acts ch. 45, § 2,

reprinted in

1 D.C.Code Ann. 34, 35 (1991).

(5) The District became the permanent Seat of Government in December 1800,

see

An Act for Establishing the Temporary and Permanent Seat of Government of the United States, 1 Stat. 130 , ch. 28, § 6 (1790), and the cession was finally consummated by the Organic Act of 1801, 2 Stat. 103 , ch. 15 (1801). At no time did either Maryland or the United States make any provision for either termination or continuation of the apportionment, or of the voting rights, of the “persons” ceded by Maryland to the United States. No provision in any cession instrument purported to

*74

take away the pre-existing right of those “persons” to be apportioned and to vote for voting representation in the House of Representatives. In any event, the decisions of the Supreme Court in

O’Donoghue v. United States,

289 U.S. 516 , 540, 53 S.Ct. 740 , 77 L.Ed. 1356 (1933) (constitutional rights not lost at cession) and

Lucas v. Forty-Fourth Gen. Assembly of Colorado,

377 U.S. 713, 736 , 84 S.Ct. 1459 , 12 L.Ed.2d 632 (1964) (constitutional voting rights of minority not waivable by majority), establish that neither the United States, nor any of its officers, could , constitutionally interfere with that right of “persons” ceded to the United States or their political posterity.

(6) Nevertheless, ever since 1801, it has been assumed by some, but never authoritatively decided, that District inhabitants have no right to apportionment and to vote for voting representation in the House of Representatives.

On that assumption, the Secretary of Commerce intends to follow the practice of previous Secretaries to exclude inhabitants of the District of Columbia from his report to the President by which he performs his statutory duty to apportion the population of the several States and the membership of the House of Representatives,

see

13 U.S.C. § 141 (b), thereby obstructing voting representation of District inhabitants in the House.

(7)

Wesberry

teaches that in such circumstances it behooves the judiciary to test thoroughly any purported necessity for such a practice and the assumptions underlying it.

Wesberry,

376 U.S. at 17-18 , 84 S.Ct. 526 . As the Supreme Court subsequently declared: “that an unconstitutional action has been taken before does not render the action any less unconstitutional at a later date.”

See Powell v. McCormack,

395 U.S. 486, 546-47 , 89 S.Ct. 1944 , 23 L.Ed.2d 491 (1969). After thoroughly considering the various arguments, I have found nothing that necessitates federal officials continuing the practice of obstructing the “precious” constitutional right of the inhabitants of the District of Columbia to vote for voting representation in the House of Representatives.

See Wesberry,

376 U.S. at 17-18 , 84 S.Ct. 526 .

(8) In addition, the Equal Protection Clause of the Fourteenth Amendment, incorporated into the Bill of Rights’ Fifth Amendment and thereby made applicable to the national government,

requires a declaration that inhabitants of the District of Columbia have and should henceforth enjoy the same right to apportioned representation in the House of Representatives as that enjoyed by residents of other federal enclaves,

former residents of States who live abroad,

as well as residents of States.

Accordingly, I would hold that both Article I and principles of equal protection require this Court to declare that qualified residents of the District have a constitutional right to vote for voting representation in the House of Representatives, and declare that 13 U.S.C. § 141 (b), as con

*75

strued and applied by the Secretary of Commerce, unconstitutionally obstructs their enjoyment of that right.

Although the facts have been well stated by my colleagues, some repetition and addition are necessary to bring the issues into focus for purposes of this dissent.

Article I of the original Constitution specifies that “Representatives ... shall be apportioned among the several States” according to an “actual Enumeration” of persons made every ten years. U.S. Const, art. I, § 2, cl. 3. The Fourteenth Amendment has superceded in part, but not substantively altered, this requirement.

Id.

amend. XIV, § 2. Section 141(b) of Title 13 of the United States Code makes the Secretary of Commerce responsible for conducting the enumeration and providing the President with a “tabulation of total population by States ... as required for the apportionment of Representatives in Congress among the several States.” 13 U.S.C. § 141 (b). The statute directs the President to transmit to the Congress “a statement showing the whole number of persons in each State ... as ascertained under ... each ... decennial census, and the number of Representatives to which each State would be entitled.” 2 U.S.C. § 2a(a). Finally, the Clerk of the House is responsible for sending the “executive of each State a certificate of the number of Representatives to which each such State is entitled.” 2 U.S.C. § 2a(b).

On December 26, 1990, a predecessor of the incumbent Secretary sent to President George Bush “a statement showing the apportionment population for each State as of April 1, 1990, tabulated from the 1990 Decennial Census.” Statement of Undisputed Facts of Plaintiffs

Alexander et al.

with Supporting Declarations and Exhibits, Tab. 3. The statement included a determination of “the number of Representatives to which each State is entitled.”

Id.

The statement allocated to every State at least one Representative.

Id.

The statement did not report the population of the District of Columbia,

include the District’s population in the population of any State, or include its population in the total population used for apportionment purposes.

Id.

Nor did it allocate Representatives to the District.

Id.

The incumbent Secretary, a defendant here, intends to follow his predecessor’s practice, as evidenced by his opposition to plaintiffs’ motions. There being no allocation of Representatives, no transmittal by the President to the Clerk of the House, and no certificate by the Clerk to the District, the present practice of the Secretary obstructs inhabitants of the District from exercising their constitutional right to vote for voting representation in the House of Representatives. Meanwhile, the Secretary includes in his apportionment of persons and allocates representatives to residents of federal enclaves and Congress permits voting, even where there may be no apportionment, by persons residing overseas who formerly resided in a State.

Plaintiffs’ claims present constitutional questions, the resolution of which requires examination of a broad sweep of political and legal history, including particularly the

*76

circumstances preceding and surrounding the adoption of the Seat of Government clause in the Constitution, the Maryland cession of territory and “persons” to the United States to form the District, the exercise by District residents of their right to vote for voting representation in Congress between 1790 and 1800, the evolution of the District of Columbia as a political entity from 1790 through the present, the favorable judicial and legislative treatment accorded similar claims by residents of federal enclaves (other than the District of Columbia) and to United States citizens residing outside the United States — all viewed in the light of the evolving applications of the post-Civil War Amendments and Acts of Congress in the latter half of the Twentieth Century with respect to voting rights.

1. The Seat of Government Clause

Before the adoption of the Constitution, there was no fixed national seat of government. Congress met in a number of locations.

In 1783, while Congress was meeting in Philadelphia, hundreds of angry Revolutionary War veterans surrounded the State House and demanded compensation for their services.

Neither the city of Philadelphia nor the State of Pennsylvania acted to protect Congress from the disturbances.

At the Constitutional Convention in 1787,

mindful of this so-called Philadelphia Mutiny, the Framers sought to ensure that the national government would be free from interference by any State government and from dependence upon any State for protection.

As explained by James Iredell, at North Carolina’s 1789 ratifying convention:

What would be the consequence if the seat of government of the United States, with all the archives of America, was in the power of any one particular state? Would not this be most unsafe and humiliating? Do we not all remember that, in the year 1783, a band of soldiers went and insulted the Congress? The sovereignty of the United States was treated with indignity. They applied for protection to the state they resided in, but could obtain none. It is to be hoped such a disgraceful scene will never happen again; but that, for the future, the national government will be able to protect itself.

Elliot’s Debates at 219-20,

reprinted in

3 Philip B. Kurland & Ralph Lerner, The Founders’ Constitution 225 (1987). Similarly, James Madison, in The Federalist, published while New York was deciding on ratification, defended “[t]he indispensable

*77

necessity of complete authority at the seat of government” on the grounds that

[w]ithout it not only the public authority might be insulted and its proceedings interrupted with impunity, but a dependence of the members of the general government on the State ... for protection in the exercise of their duty might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatis-factory to the other members of the Confederacy.

The Federalist, No. 43, at 272 (James Madison) (Clinton Rossiter ed.1961).

These considerations, particularly the pre-Convention experience with the shifting location of the Continental Congress and exigencies such as the Philadelphia Mutiny which provoked Congress to move from time to time, prompted the inclusion of the Seat of Government clause in Article I of the Constitution.

The clause provides:

The Congress shall have the Power ... To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of Government of the United States, and .to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Arsenals, dock-Yards and other needful buildings;

U.S. Const, art. I, § 8, cl. 17. The Framers did not select a location for the Seat of Government, nor place any constraints on where that location should be, primarily to avoid offending either Philadelphia or New York, both of which might expect to be selected.

Instead, they left that potentially contentious decision to Congress.

Neither the Seat of Government clause, nor any other provision of the Constitution, expressly mentions voting by, or representation of, inhabitants of the yet-to-be-selected Seat of Government. Indeed, the delegates to the Convention discussed and adopted the Seat of Government clause, and the remainder of the Constitution, without any recorded debate on its implications for the voting, representation or any other rights of the inhabitants of federal enclaves, including the yet-to-be-selected Seat of Government.

2. Cession

Between 1788 and 1801, Maryland and Virginia ceded, and the United States accepted, the area which became the Seat of Government. It is undisputed that none of the pertinent documents contain a word about the voting rights of the persons to be ceded.

On December 23, 1788, Maryland offered Congress “any district in this state, not exceeding ten miles square, which the congress may fix upon and accept for the seat of government of the United States.” An Act to Cede to Congress a District of Ten Miles Square in This State for the Seat of the Government of the United

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States, 1788 Md. Acts ch. 46,

reprinted in

1 D.C.Code Ann. 33-34 (1991). On December 3, 1789, Virginia similarly offered “a tract of country not exceeding ten miles square, or any lesser quantity, to be located within the limits of the State ... as Congress may by law direct, shall be, and the same is hereby forever ceded and relinquished to the Congress and Government of the United States.” 13 Va. Stat. at Large, ch. 32,

reprinted in

1 D.C.Code Ann. 32-33 (1991). Virginia’s offer contained the proviso that “the jurisdiction of the laws of this commonwealth over the persons and property of individuals residing with the limits of the cession aforesaid, shall not cease or determine until Congress, having accepted the said cession, shall, by law, provide for the government thereof, under their jurisdiction.”

Id.

Meanwhile, a number of other sites made strong bids for selection as the permanent Seat of Government.

In July 1790, the first Congress of the United States, greatly influenced by President Washington, “accepted for the permanent seat of government of the United States” “a district of territory, not exceeding ten miles square,” to be located within the territories offered by Maryland and Virginia. 1 Stat. 130 , ch. 28, § 6. This Act also provided that Philadelphia would serve as the temporary seat of government until December 1, 1800, at which time the seat of government would transfer to its permanent location within the “district” accepted by the Act.

Id.

§§ 5, 6. By the terms of this Act, the laws of Virginia and Maryland continued to operate within the District of Columbia “until the time fixed for the removal of the government thereto,

and

until Congress shall otherwise by law provide.”

Id.

§ 1 (emphasis added).

The boundaries of the permanent seat of government were fixed by Presidential proclamation of March 30, 1791.

See Morris v. United States,

174 U.S. 196, 200 , 19 S.Ct. 649 , 43 L.Ed. 946 (1899). Later that year, commissioners appointed by President Washington chose the names ‘Washington” for the federal city and “Columbia” for the federal district.

There was no District of Columbia political entity created at that time, although the municipal corporations of Alexandria and Georgetown continued to exist.

On December 19, 1791, Maryland passed an act ratifying the cession. It provided that the portion of the Seat of Government “which lies within the limits of this State shall be ... forever ceded and relinquished to the Congress and the Government of the United States, and full and absolute right and exclusive jurisdiction,

as well of soil as of persons residing or to reside thereon,”

while retaining jurisdiction over “persons and property of individuals residing within the limits” of the territory it ceded until Congress assumed jurisdiction. An Act Concerning the Territory of Columbia and the City of Washington, 1791 Md. Acts ch. 45, § 2,

reprinted in

1 D.C.Code Ann. 34, 35 (1991).

On the first Monday in December 1800, as provided by the 1790 Act, the District became the permanent Seat of Government of the United States. 1 Stat. 130 , ch. 28, § 6. On February 27, 1801, Congress enacted the “Organic Act of 1801,” thereby assuming exclusive jurisdiction over the District. 2 Stat. 103 , ch. 15. That Act divided the District into two counties— Washington and Alexandria; it also,

inter alia,

provided that the laws of the Maryland and Virginia would continue to apply to the respective parts of the District of Columbia which had been ceded by each state; established a federal court for the District of Columbia; established a marshal for the District; and provided that an attorney for the United States should be appointed for the District.

Id.

In 1800, the population of the ten-mile square area constituting the original Seat of Govern

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ment totaled approximately 8,000, of whom approximately 6,000 were white, and approximately 2,000 were black.

3. Voting in the District Between 1790 and 1800

There is undisputed historical evidence, and I would find, that from 1790 through 1800, qualified residents in what was proclaimed in 1791 to be the District continued to vote in the elections of federal officers conducted in Maryland and Virginia, including Representatives in Congress, even though Maryland and Virginia had ceded the land to the federal government and the boundaries of the District had been drawn.

Following Congress’ enactment of the Organic Act in 1801, and the assumption of exclusive jurisdiction by the United States, Maryland and Virginia no longer permitted inhabitants of the District to vote in their local, state and federal elections.

At that time, there was no District government or voting apparatus and Congress made no provision for voting by inhabitants of the District. It was generally assumed that inhabitants of the District would no longer enjoy the right to vote for voting representation in the House of Representatives.

And, in fact, since then no inhabitant of the portion of the District ceded by Maryland has voted for voting representation in the House of Representatives.

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4. Evolution of a District of Columbia Voting Apparatus

In 1802, the District included five jurisdictions: the counties of Alexandria and Washington, the towns of Alexandria and Georgetown, and the City of Washington.

For the period from 1800 through 1871, however, there was no elected government for the District of Columbia as a whole.

In 1871, Congress first authorized a comprehensive local government for the District, consisting of a governor appointed by the President, and a unicameral 22-member house of delegates elected by the male citizens of the District. An Act to Provide a Government for the District of Columbia, 16 Stat. 419 , ch. 62 (1871). That form of representative local government was short-lived; Congress abolished it in 1874. An Act for the Government of the District of Columbia, and for Other Purposes, 18 Stat. 116 , ch. 337 (1874). From 1874 until 1967, three unelected Commissioners, appointed by the President, governed the District.

Id.;

An Act Providing a Permanent Form of Government for the District of Columbia, 20 Stat. 102 , ch. 180 (1878).

In 1967, Congress replaced the Board of Commissioners with an appointed 9-member Council and an appointed Commissioner. Reorganization Plan- No. 3 of 1967, 32 F.R. 11669 .

It was not until the early 1960’s that the voting landscape in the District began to change. On March 29, 1961, the Twenty-third Amendment was ratified. It gave residents of the District of Columbia the right to appoint electors for the election of the President and Vice President of the United States.

In 1970, Congress authorized residents of the District to elect a non-voting delegate to the House of Representatives.

See

2 U.S.C. § 25a. As a corollary, in the wake of the Twenty-third Amendment and the 1970 provision for election of a non-voting delegate to the House, the District became equipped with a rudimentary voting system.

In 1973, Congress further relaxed its “exclusive legislation” power over the District by passage of the Home Rule Act of 1973.

See

District of Columbia Self-Government and Governmental Reorganization Act, Pub.L. No. 93-198, 87 Stat. 774 (1973). By that Act, Congress granted District citizens the right to elect a Council authorized to enact local legislation, subject to Congress’ ultimate authority, provided the District with an elected Mayor, and further perfected the election appara

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tus earlier created to administer presidential and non-voting delegate elections.

Id.

Congress created the District government “to relieve Congress of the burden of legislating essentially local District matters.”

Id.

A few years earlier, the Court Reorganization Act of 1970 had created state-like courts of general jurisdiction whose appellate decisions are appealable directly to the Supreme Court by the same process that state court decisions are appealable.

In 1995, Congress established the Control Board, consisting of five members appointed by the President, to “eliminate budget deficits and management inefficiencies in the government of the District of Columbia.” Pub.L. No. 104-8, 109 Stat. 97 (1995).

Meanwhile, the population of the District, which in 1800 had been less than one fifth of the smallest state, Delaware,

and less than a quarter of that contemplated by the Northwest Ordinance of 1787 for the admission of a new state,

had burgeoned by 1990 to over 600,000 — a number more than equal to the population of several states,

see supra

note 7.

5. Evolution of Voting Rights Nationally

Paralleling the evolution of the District of Columbia and a voting apparatus therein, was the evolution of voting rights nationally, “a continuing expansion of the scope of the right of suffrage in this country.”

Reynolds v. Sims,

377 U.S. 533, 555 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964). Voting nationally has evolved from 18th century suffrage limited to white, property-owning, tax-paying males, over the age of 21, to the virtual universal suffrage today enjoyed by all but minors, felons, and the people of the District of Columbia.