# Appendix — Alexander v. Mineta

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1473%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 940

## Text

«)\ A Supreme Court, u.8.
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992062 JUN 2 32000!

No. 00- OFFICE OF THE CLERK

IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 2000

CLIFFORD ALEXANDER, ET AL.,

Appellants,
V.

WILLIAM M. DALEY, ET AL.,

Appellees.

ON APPEAL FROM THE U.S. DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA
APPENDIX
WALTER A. SMITH, JR. CHARLES A. MILLER
700 Seventh Street, S.W. Counsel of Record
No. 815 THOMAS S. WILLAMSON, JR.
Washington, D.C. 20024 CAROLINE M. BROWN
(202)554-8589 ROBERT D. WICK
COVINGTON & BURLING
L. ELISE DIETERICH 1201 Pennsylvania Ave., N.W.
SWIDLER BERLIN SHEREFF Washington, D.C. 20044
FRIEDMAN, LLP (202)662-6000
3000 K Street, N.W., Suite 30
Washington, D.C. 20007-5116 Counsel for Individual Plaintiffs
(202)945-6983
Counsel for Plaintiff
District of Columbia

--Additional Counsel Listed on Inside Cover--

OF COUNSEL:

ROBERT R. RIGSBY
Corporation Counsel

441 Fourth Street, N.W.
Suite 1060 North
Washington, D.C. 20031
(202)727-3400

JAMIN B. RASKIN

Professor of Law

Washington College of Law
American University

4801 Massachusetts Ave., N.W.
Washington, D.C. 20016
(202)274-4000

Appendix

Memorandum Opinion of the United States District
Court for the District of Columbia, dated

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Judgment of the United States District Court for the
District of Columbia, dated

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Opinion of the Honorable Louis F. Oberdorfer,
dissenting in part, and concurring in part, filed
in the United States District Court for the District

of Columbia, dated March 20, 2000.................:::cccceeeees

Memorandum Opinion of the United States
District Court for the District of Columbia,

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Order of the United States District Court
for the District of Columbia, dated

MED iideninlntaccasiabdaninsntalsidsestnianinsanissnadasentsnacans

Memorandum of the United States District Court
for the District of Columbia, dated

SI eta a i tt ci claainaalitsnaendiin

Notice of Appeal to the Supreme Court of the
United States, filed in the United States District
Court for the District of Columbia,

SRE Be A cei iinlerat eas lasierneieititesstsievsssssens

First Amended Complaint for Declaratory
and Injunctive Relief, filed in the United States
District Court for the District of Columbia, filed

gk RP RIEL Tenia epee re Ph one nO

;
i
;

LOIS E. ADAMS, et al. )
Plaintiffs,

v. | No. 98-1665
WILLIAM J. CLINTON, et ai.
Defendants.
CLIFFORD ALEXANDER, etal. )
Plaintiffs, :

v. : No. 98-2187
WILLIAM M. DALEY, et al. ;

Defendants. |

98-1665, 98-2187

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA

March 20, 2000, Decided

Before: GARLAND, Circuit Judge, and OBERDORFER and
KOLLAR-KOTELLY, District Judges.

la

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.

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 “derive 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.

i

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

2a

republican form of government. 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. 109. 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.” Jd. 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; Jd. 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

; The Control Board was established pursuant to the District

of Columbia Financial Responsibility and Management Assistance
Act, Pub. L. No. 104-8, 109 Stat. 97 (1995).

3a |

Doorkeeper/Sergeant at Arms of the Senate; and the United
States.

n 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.

Il

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 “challenge the
constitutionality of the apportionment of congressional
districts,” plainly fall outside the jurisdictional mandate of

4a

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, Inc., 312 U.S. 621, 625 (1941)
(holding that three-judge court should not consider “questions
not within the statutory purpose for which the two additional
judges have 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 (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 (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; see also Allee, 416
U.S. at 812 n.8. Nor is this a case in which resolution of the
non-three-judge claims would allow us to dispose of the
claims that provide the basis for our jurisdiction. See Allee,
416 US. at 812 n.8; United States v. Georgia Pub. Serv.
Comm'n, 371 U.S. 285, 287-88 (1963) (“Once [a three-judge
court has been] convened the case can be disposed of below or
here on any ground, whether or not it would have justified the
calling of a three-judge court.”’”); see also Rosado v. Wyman,
397 U.S. 397, 402 (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

5a

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 (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 (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 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

6a

whether plaintiffs have the requisite standing to bring it. See
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998)
(holding that Article III courts must consider jurisdictional
questions before deciding merits of causes of action).

A

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 (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 “constitutional challenges to
apportionment are justiciable.” Franklin v. Massachusetts, 505
U.S. 788, 801 & n.2 (1992) (plurality opinion of O’Connor, J.)
(citing Department of Commerce v. Montana, 503 U.S. 442
(1992)); accord Wesberry v. Sanders, 376 U.S. 1, 6 (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 (“The 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.

7a

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 (1992)
(footnote, citations, and internal quotations omitted). For the
purposes of standing analysis, we “assume the validity of a
plaintiff's 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 (1975) (“Standing in no way depends on
the merits of the plaintiff's contention that particular conduct
is illegal . . . .”); Claybrook v. Slater, 111 F.3d 904, 907 (D.C.
Cir. 1997); United States House 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
(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 night 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 (invalidating
malapportioned congressional districts). Hence, if the
residents of the District are entitled to such a voice—which we

8a

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 (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 nymber 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 .. . .” Jd. § 2a(b); see Franklin,

The statute provides:

The tabulation of total population by States . . . as required
for the apportionment of Representatives in Congress
among ‘he several States shall be . . . reported by the
[Commerce] Secretary to the President of the United
States. 13 U.S.C. § 141(b).

9a

505 U.S. at 792. 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 is 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 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

: U.S. CONST. art. I, § 2, cl. 3; 13 U.S.C. § 141(b); see supra
note 2.

: See Franklin, 505 U.S. at 802 (plurality opinion of
O’Connor, J.) (noting that “injunctive relief against executive
officials like the Secretary of Commerce is within the courts’
power’”’).

, U.S. CONST. art. I, § 6, cl. 1 (“{Flor any Speech or Debate
in either House, [Senators and Representatives] shall not be
questioned in any other Place.”’).

10a

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. 788. 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. 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.

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

6

Defendants do not shrink from the implications of their
position. As noted at oral argument, their contention would apply
with equal force to a President’s decision to deny representation to a
state that voted against him in the last election (at least if that
decision were supported by a majority in Congress). See Tr. of Mot.
Hr’g at 54. Indeed, the Executive Branch defendants concede that,
on their theory, no one would have standing to challenge a
presidential decision to grant the District the vote simply by
apportioning it representatives in his transmission to the Clerk. See
id. at 54-55.

against the President was “extraordinary, and should have
raised judicial eyebrows.” Jd. at 802 (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. 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.

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 (Stevens, J., concurring in part). “[TJhe
statute,” these four said, “does not contemplate the President’s
changing the Secretary’s report.” Jd. at 814. 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 (Scalia, J., concurring in part). Even if

12a

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 try to discern such a principle. Cf Marks v. United
States, 430 U.S. 188, 193 (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

7

Franklin preceded Steel Co., in which the Court expressly
held that Article III courts must consider jurisdictional questions
before deciding whether a plaintiff has stated a cause of action. See
Steel Co., 118 S. Ct. at 1012.

: See Franklin, 505 U.S. at 813 (Stevens, J., concurring in
part) (“[T]he President has consistently and faithfully performed the
ministerial duty [of relaying the Secretary’s figures to the Clerk
without modification]. The Court’s suggestion today that the statute
gives him discretion to do otherwise is plainly incorrect.”).

9

In this case, for example, although the four Justices just
cited found the President to have nothing more than a ministerial
responsibility with respect to the Secretary’s report, a majority of
the Court (including the four Justices who found standing) held that
the Secretary’s decision did not constitute final agency action under
the APA because “[the President] is not expressly required to adhere
to the policy decisions reflected in the Secretary’s report. . . . [I]t is
the President’s personal transmittal of the report to Congress that
settles the apportionment . . . .” Franklin, 505 U.S. at 799. The same
majority noted that Congress had intended to make the
reapportionment process “virtually self-executing, so that the
number of Representatives per State would be determined by the
Secretary of Commerce and the President without any action by
Congress.” Jd. at 792.

13a

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 tnis
court (assuming, of course, that it were upheld on appeal)
regarding the apportionment of congressional districts.'°
Hence, we can conclude that plaintiffs satisfy 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."’

” See House Opp’n to Pls.’ Mot. for Summ. J. at 5-6 (“Were
District residents determined to have the right to elect congressional
representatives, there is no doubt that the District would be included
in the apportionment process.”).

An alternative: ground for finding redressability, again
without resolving the question of the President’s amenability to suit,
is contained in the D.C. Circuit’s opinion in Swan v. Clinton, 100
F.3d 973 (D.C. Cir. 1996). There, the court held that even if “the
President has the power, if he so chose, to undercut . . . relief” in the
form of an injunction against a subordinate official, the “partial
relief [plaintiff] can obtain against subordinate executive officials is
sufficient for redressability.” Jd. 980-81. This, the court said,
“simply recogniz[es] that such partial relief is sufficient for standing
purposes when determining whether we can order more complete
(continued...)

l4a

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 (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 (1991) (quoting Baker, 369
U.S. at 204); Diamond v. Charles, 476 U.S. 54, 61-62 (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

relief would require us to delve into complicated and exceptionally
difficult questions regarding the constitutional relationship between
the judiciary and the executive branch.” Jd. at 981.

1Sa

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 (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 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

l6a

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 P\s.’ Consolidated Mem. in Opp’n to Defs.’ Mots.
to Dismiss at 35 n.18 [hereinafter Alexander Pls.’ 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.'?

IV

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

- Because the individual plaintiffs in Alexander and Adams,
all adult residents of voting age, have standing to sue, we need not
consider whether plaintiff District of Columbia has standing as well.
See United States House of Representatives, 119 S. Ct. at 773;
Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426, 429
(D.C. Cir. 1998) (en banc) (citing Mountain States Legal Found. v.
Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996) (“For each claim, if
constitutional and prudential standing can be shown for at least one
plaintiff, we need not consider the standing of the other plaintiffs to
raise that claim.”)).

17a

Year by the People of the several States, and
the Electors in each State 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 “state[s]”—
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. I, §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, nlaces, and manner of holding elections
for representatives). .adeed, for this reason—and as the
Alexander plaintiffs concede—residents of United States
territories are not entitled to vote in federal 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

ss See /gartua de la Rosa v. United States, 32 F.3d 8 (1st Cir.
1994) (holding that United States citizens in Puerto Rico are not
entitled to vote in presidential elections); Attorney Gen. of Guam v.
United States, 738 F.2d 1017 (9th Cir. 1984) (holding that United
States citizens in Guam are not entitled to vote in presidential and
vice-presidential elections); Jon M. Van Dyke, The Evolving Legal
Relationships Between the United States and Its U.S.-Flag Islands,
U. HAW. L. REV. 445, 512 (1992); Alexander Pls.’ Opp’n at 5-6.

18a

“state.” See Alexander Pls.’ Opp’n at 15; accord Adams PIs.’
Opp’n to the Federal Defs.’ Mots. to Dismiss at 51
{hereinafter Adams Pls.’ 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.

A

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
Pls. Alexander et al. for Summ. J. at 48 [hereinafter Alexander

Pls.” 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 (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
(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

- Plaintiffs also note that Congress has passed numerous

statutes that treat the District as though it were a state for various
purposes. See Alexander Pls.’ Summ. J. Mem. at 48 n.47 (citing,
inter alia, 18 U.S.C. § 1961 (RICO Act); 50 U.S.C. § 466 (Military
Selective Service Act)). But these expressions of congressional
intent, most of which were passed more than a century after the
ratification of the Constitution, provide little insight into the intent
of the Framers.

19a

(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]Jhether 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 (1973).'°
The cases plaintiffs cite do not involve Article I, nor do they
involve constitutional rights that textually appear to require
citizenship (or residence) in a state.'’ Defendants argue that,

15

We therefore reject the dissent’s suggestion that if the
District were not considered a state for purposes of Article I,
District residents would also be deprived of the right to travel under
Article IV.

In Carter, the Court held that the District of Columbia is not
a “State or Territory” within the meaning of 42 U.S.C. § 1983, but
rather “is truly sui generis in our governmental structure.” Carter,
409 U.S. at 432; accord Palmore v. United States, 411 U.S. 389,
395 (1973) (“The District of Columbia is constitutionally distinct
from the States .. . .”) (citing Hepburn & Dundas, 6 U.S. (2 Cranch)
at 445).

7

See, e.g., Callan, 127 U.S. at 550 (relying on language of
Article III providing that jury trial, for “crimes . . . not committed
within any State, . . . shall be at such place or places as the
legislature may direct”; and noting that Article III was specifically
amended “to provide for trial by jury of offenses committed out of
any state’”) (quoting James Madison) (emphasis added). .4lthough
in Loughran Justice Brandeis found the Full Faith and Credit
Clause, U.S. CONST. art. IV, § 2, to bind “courts of the District . . .
equally with courts of the States,” 292 U.S. at 228 (emphasis
added), in Heald vy. District of Columbia, he made clear that
“[r]esidents of the District lack the suffrage and have politically no
voice,” 259 U.S. 114, 124 (1922) (emphasis added).

20a

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 1 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 islature.” 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[s]” 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

” See also U.S. CONST. art. I, § 4, cl. 1 (“The Times, Places
and Manner of holding Elections for Senators and Representatives
shall be prescribed in each State by the Legislature thereof . . . .”).

“a For the first 70 years, there were separate local
governmental structures for Washington, Georgetown, and—until
the retrocession of the Virginia portion of the District in 1846—
Alexandria. See, e.g., An Act to Incorporate the Inhabitants of the
City of Washington, in the District of Columbia, 2 Stat. 195, ch. 53,
§ 2 (1802). See generally WILLIAM TINDALL, ORIGIN AND
GOVERNMENT OF THE DISTRICT OF COLUMBIA 14-29
(continued...)

2la

current elected city council, see Alexander Pls.’ Opp’n at 24,
Congress did not pass the “home mule” 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 to vote that depends upon the existence of such an
occasional institution can hardly have been what the Framers
contemplated.

(1909). In 1871, Congress established a territorial form of
government for the District, see An Act To Provide a Government
for the District of Columbia, 16 Stat. 419, ch. 62 (1871), which was
replaced by a commission system in 1874, see An Act for the
Government of the District of Columbia, and for Other Purposes, 18
Stat. 116, ch. 337 (1874). As modified in 1878, the District’s
governing body was a three-person commission appointed by the
President. See id; An Act Providing a Permanent Form of
Government for the District of Columbia, 20 Stat. 102, ch. 180
(1878). The commission system was replaced in 1967 by a mayor-
commissioner and council form of government, the members of
which were appointed by the President. See Reorganization Plan
No. 3 of 1967, Pub. L. No. 90-623, 81 Stat. 948 (1967). It was not
until 1973 that the present “home rule” form of government was
established, creating a mayor and council elected by the citizens of
the District and granting them certain executive and legislative
authority; the home rule statute reserved ultimate authority over
District governance to Congress. See District of Columbia Self-
Government and Governmental Reorganization Act, Pub. L. No. 93-
198, 87 Stat. 774 (1973).

- See Breakefield v. District of Columbia, 442 F.2d 1227,
1229 (D.C. Cir. 1970) (noting that Circuit has rejected “the claim
that . . . the members of the [then non-elected] City Council were
illegally appointed ‘because the citizens of the District have not
been given the opportunity by popular vote to elect persons to the
positions held by’ them”) (quoting Carliner vy. Commissioner, 412
F.2d 1090, 1091 (D.C. Cir. 1969)); see also D.C. Feu a v. Volpe,
140 U.S. App. D.C. 162, 434 F.2d 436, 443 n.28 (D.C. Cir. 1970);
Hobson v. Tobriner, 255 F. Supp. 295 (D.D.C. 1966).

22a

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.
I, § 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 Pls.’ 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 tum 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 be included within this Union, according to
their respective numbers.” U.S. CONST. art. a2. 3
(emphasis added).”!

re Section 2 of the Fourteenth Amendment modified this
provision by establishing that “Representatives shall be apportioned
among the several States according to their respective numbers,
counting the whole number of persons in each State... .” US.
CONST. amend. XIV, § 2 (emphasis added); see Montana, 503 U.S.
at 445 n.1; see also Carter, 409 U.S. at 424 (“[T]he District of
Columbia is not a ‘State’ within the meaning of the Fourteenth
Amendment... .”).

23a

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.” Jd. 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
State’[s]” “respective Numbers” can be accomplished. Jd. art.
I, § 2, cl. 3.7? The District is not included within that initial
apportionment.”

™ See U.S. CONST. art. I, § 8, cl. 17 (granting Congress
power to exercise exclusive legislation in all cases whatsoever “over
such District . . . as may, by Cession of particular States, and the
Acceptance of Congress, become the Seat of Government of the
United States”).

- The clause reads:

The Number of Representatives shall not exceed
one for every thirty Thousand, but each State shall
have at Least one Representative; and until such
enumeration shall be made, the State of New
Hampshire shall be entitled to chuse three,
Massachusetts eight, Rhode Island and Providence
Plantations one, Connecticut five, New York six,
New Jersey four, Pennsylvania eight, Delaware one,
Maryland six, Virginia ten, North Carolina five,
South Carolina five, and Georgia three.

U.S. CONST art. I, § 2, cl. 3.

” Plaintiffs suggest that the District may not have been
included because the site of the seat of government had not yet been
chosen when the Constitution was drafted, and because no one knew
what its population would be. While it is true that the District did
(continued...)

24a

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 P\s.’ 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 (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.

not exist at the time the Constitution was drafted, provision had
been made for its creation, see U.S. CONST. art. I, § 8, cl. 17, and it
was possible that it would be established prior to the first
enumeration (i.e., the first census). It is also true that the original
population of the District was small. Compare TINDALL, supra
note 19, at 15 (estimating 1800 population at 14,093), with 2
BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE,
HISTORICAL STATISTICS OF THE UNITED STATES 26
(bicentennial ed. 1975) (listing 1800 census count at 8,000). The
Framers, however, assumed that the population would grow
substantially. L’Enfant’s original plan provided for a city of
800,000, which at the time was the size of Paris. See Home Ri /e:
Hearings Before Subcomm. No. 6 of the Comm. on the District of
Columbia, 88th Cong. 347 (1963) (statement of Robert F. Kennedy,
Attorney General).

' 25a

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.” US.
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. /d. 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 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 (1964); Wesberry, 376
U.S. at 12-13; see also INS v. Chadha, 462 U.S. 919, 950

26a

(1983). But reaching this conclusion with respect to the Senate
requires reaching a similar conclusion with respect to the
House. The House provisions, after all, were “the other side of
the compromise”: to satisfy the larger states, the House was to
be popularly elected, and “in allocating Congressmen the
number assigned to each State should be determined solely by
the number of the State’s inhabitants.” Wesberry, 376 U.S. at
13 (emphasis added). Treating the Senate and House
differently with respect to the District would unhitch half that
compromise from its historical and constitutional moorings.

In 1913, the Seventeenth Amendment granted the
people of “each State,” rather than their legislatures, the right
to choose senators. U.S. CONST. amend. XVII, cl. 1. After
that change, the provisions concerning qualifications and
vacancies for the Senate essentially parallel those for the
House. See id. (providing that “electors . . . shall have the
qualifications requisite for electors of the most numerous
branch of the State legislatures”); id. cl. 2 (“When vacancies
happen in the representation of any State in the Senate, the
executive authority of such State shall issue writs of election
to fill such vacancies: Provided, That the legislature of any
State may empower the executive thereof to make temporary
appointments... .”). But see id. cl. 1 (providing that senators
shall be elected by people of “each State,” rather than “of the
several states” as in provision for representatives in Article I,
section 2, clause 1). Accordingly, no separate discussion of
those provisions is necessary.

2. We conclude from our analysis of the text that the
Constitution does not contemplate that the District may serve
as a State for purposes of the apportionment of congressional
representatives. That textual evidence is supported by
historical evidence concerning the general understanding at
the time of the District’s creation.

It is true, as plaintiffs note, that the voting rights of
District residents received little express attention at the time of
the Constitution’s drafting. See generally Peter Raven-Hansen,
Congressional Representation for the District of Columbia: A

27a

Constitutional Analysis, 12 HARV. J. ON LEGIS. 167, 172
(1975). As plaintiffs suggest, this lack of attention may have
been due to the fact that the District’s geographic location had
not yet been determined, and that even once selected, the
territory had relatively few residents. See supra note 24. But
see id. (noting that L’Enfant anticipated city of Washington
growing to size of 800,000). It is also true, as our dissenting
colleague argues, that the historical rationale for the District
Clause—ensuring that Congress would not have to depend
upon another sovereign for its protection—would not by itself
require the exclusion of District residents from _ the
congressional franchise.”°

“ There is general agreement that the District Clause was
adopted in response to an incident in Philadelphia in 1783, in which
a crowd of disbanded Revolutionary War soldiers, angry at not
having been paid, gathered to protest in front of the building in
which the Continental Congress was meeting under the Articles of
Confederation. See, eg, KENNETH R. BOWLING, THE
CREATION OF WASHINGTON, D.C. 30-34 (1991); THE
FEDERALIST NO. 43, supra, at 289; JOSEPH STORY, 3
COMMENTARIES ON THE CONSTITUTION §§ 1213 (1833).
Despite requests from the Congress, the Pennsylvania state
government declined to call out its militia to respond to the threat,
and the Congress had to adjourn abruptly to New Jersey. The
episode, viewed as an affront to the weak national-government, led
to the widespread belief that exclusive federal control over the
national capital was necessary. “Without it,” Madison wrote, “not
only the public authority might be insulted and its proceedings be
interrupted, with impunity; but a dependence of the members of the
general Government, on the State comprehending the seat of the
Government 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 dissatisfactory to the other
members of the confederacy.” THE FEDERALIST NO. 43, supra,
at 289; see also 4 THE DEBATES IN THE SEVERAL STATE
CONVENTIONS ON THE ADOPTION OF THE FEDERAL
CONSTITUTION AS RECOMMENDED BY THE GENERAL
(continued...)

28a

Such evidence as does exist, however, indicates a
contemporary understanding that residents of the District
would not have a vote in the national Congress. At the New
York ratifying convention,”° for example, Thomas Tredwell
argued that “(t]he plan of the federal city, sir, departs from
every principle of freedom . . . subjecting the inhabitants of
that district to the exclusive legislation of Congress, in whose
appointment they have no share or vote.” 2 THE DEBATES
IN THE SEVERAL STATE CONVENTIONS ON THE
ADOPTION OF THE FEDERAL CONSTITUTION AS

CONVENTION AT PHILADELPHIA IN 1787, at 220 (Jonathan
Elliot ed., 2d ed. 1888), reprinted in 3 THE FOUNDERS’
CONSTITUTION 225 (Philip B. Kurland & Ralph Lerner eds.,
1987) (“Do we not all remember that, in the year 1783, a band of
soldiers went and insulted Congress? . . . . It is to be hoped that such
a disgraceful scene will never happen again; but that, for the future,
the national government will be able to protect itself.”) (North
Carolina ratifying convention, remarks of Mr. Iredell).

Although this self-protection rationale has little relevance
for the question of congressional representation, other statements by
Madison concerning the rationale for the District Clause suggest he
did not view the District as the constitutional equivalent of a state.
See, e.g., THE FEDERALIST NO. 43, supra, at 289 (arguing that
“the gradual accumulation of public improvements at the stationary
residence of the Government, would be . . . too great a public pledge
to be left in the hands of a single State”); see also JAMES
MADISON, THE DEBATES IN THE FEDERAL CONVENTION
OF 1787, WHICH FRAMED THE CONSTITUTION OF THE
UNITED STATES OF AMERICA 332 (Gaillard Hunt & James
Brown Scott eds., 1970) (noting George Mason’s objection that
having national capital and a state capital at the same place would
give “a provincial tincture to your national deliberations”).

2 Cf. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 791-
92 (1995) (noting that Court has used ratification debates to confirm
Framers’ understanding of Article I) (citing Powell v. McCormack,
395 U.S. 486 (1969))

29a

RECOMMENDED BY THE GENERAL CONVENTION AT
PHILADELPHIA IN 1787, at 402 (Jonathan Elliot ed., 2d ed.
1888), reprinted in 3 THE FOUNDERS’ CONSTITUTION
225 (Philip B. Kurland & Ralph Lerner eds., 1987).”’ On the
same day at that convention, Alexander Hamilton proposed
that the Constitution be amended to provide: “When the
Number of Persons in the District or Territory to be laid out
for the Seat of the Government of the United States .. .
amount to _—[an unspecified number] . . . Provision shall be
made by Congress for having a District representation in that
Body.” 5 THE PAPERS OF ALEXANDER HAMILTON
189-90 (Harold C. Syrett & Jacob E. Cooke eds., 1962). The
proposed amendment failed. See id.

Considerably more evidence of the contemporary
understanding emerges from examination of the period
immediately surrounding Congress’ assumption of exclusive
jurisdiction over the land ceded for the District by Maryland
and Virginia.”* During that period, some residents of the
District sought to dissuade Congress from passing the Organic

" See also BOWLING, supra note 25, at 82 (noting that
opponents of Constitution charged that District residents “would be
subject to a government with absolute authority over them but in
which they were unrepresented”).

In FEDERALIST NO. 43, Madison expressed the view that
inhabitants of the District will have acquiesced in cession, “as they
will have had their voice in the election of the Government which is
to exercise authority over them... .” THE FEDERALIST NO. 43,
supra, at 289. As plaintiffs concede, this is generally understood as
a reference to the fact that before cession the residents would “have
had” a voice in that decision, not a suggestion that they would have
a voice in Congress thereafter. See Mem. Amici Curiae for
Professors James D.A. Boyle ef al. at 21 n. 13; Raven-Hansen,
supra, at 172 n.24.

7. Cf. U.S. Term Limits, Inc., 514 U.S. at 816 (examining
1807 congressional debates as “further evidence of the general
consensus” regarding meaning of Article I, section 2, clause 2).

30a

Act of 1801, 2 Stat. 103 (1801), through which jurisdiction
was to be assumed. They believed that, under the Constitution,
once Congress assumed jurisdiction they would necessarily
lose their vote and be “reduced to the mortifying situation, of
being subject to laws made, or to be made, by we know not
whom; by agents, not of our choice, in no degree responsible
to us.” ENQUIRIES INTO THE NECESSITY OR
EXPEDIENCY OF ASSUMING EXCLUSIVE
LEGISLATION OVER THE DISTRICT OF COLUMBIA 15
(1800) [hereinafter ENQUIRIES INTO THE NECESSITY]
(available in Rare Book/Special Collections Reading Room,
Library of Congress).”? Members of Congress opposed to the
Organic Act made the same argument. See, e.g., 10 ANNALS
OF CONG. 992 (1801) (remarks of Rep. Smilie) (arguing that
upon assumption of congressional jurisdiction, “the people of

ss Paralleling our analysis in the previous section, the author

of this letter to Congress wrote that “we cannot hope to have our
situation ameliorated” by the Constitution for two reasons.
ENQUIRIES INTO THE NECESSITY, supra, at 16. First, he
noted:

In the 2d Section of the Ist article, the rule of
representation is_ settled. “The House of
Representatives shall be composed of members,
chosen every second year, by the people of the
several states,” but if we cease to be of any state,
we can derive no benefit from that clause.

Id. Second, he noted that the same section also “excludes
us from the privilege of voting for members of congress”
because

[T]he provision is, that ‘the electors in each state
shall have the qualification requisite for electors of
the most numerous branch of the state legislature,’
and if we are not qualified to vote for the state
legislature, we are not qualified to vote for
members of congress.

Id. at 18-19.

3la

the District would be reduced to the state of subjects, and
deprived of their political rights”). Even those who supported
the Act appeared to agree that, under the Constitution, once
Congress assumed jurisdiction the residents would
automatically lose their right to vote. See, e.g., id. at 996
(remarks of Rep. Bird) (noting that although “the people [of
the District] could not be represented in the General
Government,” the “blame” was not “to the men who made the
act of cession; not to those who accepted it,” but “to the men
who framed the Constitutional provision, who peculiarly set
apart this as a District under the national safeguard and
Government”).”°

Others saw a constitutional amendment—rather than
blocking Congress’ assumption of jurisdiction—as the best
way to preserve the franchise for the District’s residents. See,

7 Other debates concerning the District also reflected the
understanding that District residents would lack a vote in the
national Congress. See FEDERAL GAZETTE & BALTIMORE
DAILY ADVERTISER, Feb. 21, 1801, at 2 (remarks of Rep.
Gallatin) (“/77his was not the fault of the present congress: if any
fault, it laid with the [constitutional] convention, who expressly
provided that exclusive jurisdiction should be assumed, and
therefore the people [of the District] could not be represented in the
general government.”); FEDERAL GAZETTE & BALTIMORE
DATL.Y ADVERTISER, Feb. 26, 1801, at 2 (reporting that “Mr.
Nicisison, as a representative of the state of Maryland could not
avoid expressing his opinion, upon a subject so highly interesting to
a party of the people of that state, who were divested, by the
assumption of jurisdiction, . . . of the right of voting for . . . the
house of representatives to the general government. There ought to
be, in his opinion, some weighty reasons urged why they should not
be possessed with other rights as great, in the election of their local
legislature.”); WASHINGTON FEDERALIST, Mar. 3, 1801, at 2
(reporting same statement by Rep. Nicholson) [all sources available
in Newspaper and Current Periodical Reading Room, Library of
Congress].

32a

e.g., 10 ANNALS OF CONG. 998-99 (1801) (remarks of Rep.
Dennis) (“{I]f it should be necessary, the Constitution might
be so altered as to give them a delegate to the General
Legislature, when their numbers should become sufficient.”’).
In 1801, Augustus Woodward, a prominent lawyer who
practiced in the District of Columbia, published a pamphlet
decrying the area’s lack of congressional representation,
calling it a violation of “an original principle of republicanism,
to deny that all who are governed by the laws ought to
participate in the formation of them.” AUGUSTUS
WOODWARD, CONSIDERATIONS ON THE TERRITORY
OF COLUMBIA 5-6 (1801) (available in Rare Book/Special
Collections Reading Room, Library of Congress).”!
Woodward called for representation of the District in the
Senate and the House, but recognized that “[iJt will require an
amendment to the Constitution of the United States.” Jd. at 6.
Accordingly, he proposed one. See id. at 15.”

Within a few years of the assumption of congressional
jurisdiction, still others saw retrocession of the District to
Maryland and Virginia as the only remedy for the “political
slave[ry]” of nonrepresentation. 12 ANNALS OF CONG. 487
(1803) (remarks of Rep. Smilie); see id. (“Under our exercise
of exclusive jurisdiction the citizens here are deprived of all

31

Woodward was a friend and protege of Thomas Jefferson,
who appointed him judge of the Supreme Court of the Michigan
Territory in 1805. See Richard P. Cole, Law and Community in the
New Nation: Three Visions for Michigan, 1788-1831, 4 S. CAL.
INTERDISC. L.J. 161, 196-98 (1995).

_ In another pamphlet, written under the pseudonym

Epaminondas, Woodward opposed the suggestion that “it is better
for Congress never to assume the jurisdiction.” 5 ERAMINONDAS
ON THE GOVERNMENT OF THE TERRITORY OF
COLUMBIA 9 (1801) (available in Rare Book/Special Collections
Reading Room, Library of Congress). Constitutional amendment
was to be preferred, he said, and was “the exclusive and only
remedy.” Jd. (emphasis in original).

33a

political rights, nor can we confer them. . . . Why not then
restore the people to their former condition?”). In 1803, a bill
calling for retrocession was introduced in Congress. See id. at
487-506. Although the bill was defeated, see id. at 506, the
residents of the former Virginia territory eventually succeeded
in obtaining retrocession in 1846, see An Act to Retrocede the
County of Alexandria, in the District of Columbia, to the State
of Virginia, 9 Stat. 35 (1846).*°

Although the foregoing represents positive evidence of
a contemporary understanding that District residents would
not (and did not) have the right to vote in Congress, perhaps
more important is the absence of evidence to the contrary. No
political leaders, for example, assured the residents that they
would have representation even without constitutional
amendment or defeat of the Organic Act. Nor is there any
indication that the residents of the new District were surprised
when they found themselves without the vote after Congress
assumed exclusive jurisdiction in 1801. Indeed, had it been
understood that the former citizens of Maryland and Virginia
had a night to continue voting for Congress, one would have
expected a flood of newspaper articles and lawsuits decrying
their unlawful disenfranchisement. Such a reaction, however,
is not visible in the historical record.”

” In 1818, President Monroe, who had been a delegate to the
Virginia ratifying convention, noted that the people of the District of
Columbia “have no participation” in Congress’ exercise of power
over them, and asked Congress to consider “whether an arrangement
better adapted to the principles of our Government” might be
possible. 33 ANNALS OF CONG. 18 (1818). No specific
arrangement was proposed. See generally 3 STORY, supra note 25,
§ 1218 (1833) (noting that inhabitants of the District “are not indeed
citizens of any state, entitled to the privileges of such, but are
citizens of the United States” and that “[t]hey have no immediate
representatives in congress”).

7 See e.g, COLUMBIAN MIRROR & ALEXANDRIA
GAZETTE (Alexandria, Va.), Apr. 13, 1799 through Dec. 6, 1800
(continued...)

34a

——————

3. Finally, we note that every other court to have
considered the question—whether in dictum or in holding—
has concluded that residents of the District do not have the
right to vote for members of Congress. The early Supreme
Court decisions are particularly relevant here, not only
because they are binding upon us, but because they reflect the
historical understanding of Chief Justice Marshall, who “wrote
from close personal knowledge of the Founders and the
foundation of our constitutional structure.” National Mut. Ins.

(further dates unavailable); FEDERAL GAZETTE & BALTIMORE
DAILY ADVERTISER (Baltimore, Md.), July 1, 1800 through
Dec. 31, 1801 (further dates unavailable); WASHINGTON
FEDERALIST (Georgetown, D.C.), Sept. 25, 1800 through Dec.
29, 1802 [all sources available in Newspaper and Current Periodical
Reading Room, Library of Congress]. To the contrary, the
newspapers extensively reported the congressional debates on the
Organic Act, which frequently expressed the understanding that
District residents would not have a vote in Congress. See, e.g.,
FEDERAL GAZETTE, Feb. 19, 1801, at 2 (remarks of Rep.
Smilie)}; WASHINGTON FEDERALIST, Feb. 24, 1801, at 2
(same); see also FEDERAL GAZETTE, Feb. 19, 1801, at 2
(remarks of Rep. Dennis); FEDERAL GAZETTE, Feb. 21, 1801, at
2 (remarks of Rep. Gallatin); FEDERAL GAZETTE, Feb. 26, 1801,
at 2 (remarks of Rep. Nicholson).

A resident of the former Virginia territory did sue for
the right to vote in Virginia state elections. See Custis v. Lane,
17 Va. (3 Munf.) 579 (1813). The Virginia Supreme Court,
however, rejected the claim on the ground that plaintiff was no
longer a citizen of that state. Reflecting the same
understanding as that in the congressional debates, the court
held: “That he is no longer within the jurisdiction of the
commonwealth of Virginia, is manifest from this
consideration, that congress are vested, by the constitution,
with exclusive power of legislation over the territory in
question .. . .” Jd. at 591.

Co. v. Tidewater Transfer Co., 337 U.S. 582, 587 (1949)
[hereinafter Tidewater] (plurality opinion of Jackson, J.).

In 1805, the Chief Justice considered whether the
District of Columbia was a “state” within the meaning of the
Judiciary Act of 1789, which effectuated Article III’s grant of
diversity jurisdiction by giving circuit courts authority over
cases “between a citizen of the state in which the suit is
brought, and a citizen of another state.” Hepburn & Dundas, 6
US. (2 Cranch) at 452 (citing, without citation, 1 Stat. 73, 78
(1789)). Plaintiffs contended there, as they do here, that the
word “state” can mean more than simply one of the members
of the union. Although Marshall agreed that was true, in his
view “the act of congress obviously uses the word ‘state’ in
reference to the term used in the constitution.” Jd. Expressly
relying on his understanding of the meaning of that term in the
clauses that prescribe the composition of the House and the
Senate, Marshall concluded that “state” could not encompass
the District for purposes of Article III. “These clauses,” he
said, referring to the clauses of Article I, “show that the word
state is used in the constitution as designating a member of the
union.” Jd. at 452-53. Because the word “has been used
plainly in this limited sense in the articles respecting the
legislative and executive departments,” he concluded, “it must
be understood as retaining th[at] sense” in the article
concerning the judicial branch. Jd. at 453.

Marshall was not unaware of the unfairness his
conclusion would engender. He felt constrained to reach it,
however, notwithstanding that it was “extraordinary that the
courts of the United States, which are open to aliens, and to
the citizens of every state in the union,” should be closed to
citizens of the United States who reside in the District. Jd. at
453. Sixteen years later, Marshall reaffirmed Hepburn &
Dundas’s conclusion in Corporation of New Orleans vy.
Winter, 14 U.S. (1 Wheat.) 91 (1816).

The dissent contends that Chief Justice Marshall’s
position has since been undermined by Tidewater, in which
the Supreme Court held it constitutional for Congress to open

36a

the federal courts to an action by a citizen of the District of
Columbia against a citizen of one of the states. But in so
doing, a plurality of the Court reconfirmed Marshall’s
conclusion that the District-was not a state within the meaning
of Article III’s grant of jurisdiction to the federal courts,
holding instead that Congress had lawfully expanded federal
jurisdiction beyond the bounds of Article III by using its
Article I power to legislate for the District. See Tidewater,
337 U.S. at 600 (plurality opinion of Jackson, J.). Although
two other Justices opined that Marshall’s holding in Hepburn
& Dundas should be reversed, even they limited their
disagreement to Article III’s Diversity Clause, taking pains to
distinguish between constitutional clauses “affecting civil
rights of citizens,” such as that clause, and “the purely
political clauses,” among which they counted “the
requirements that members of the House of Representatives be
chosen by the people of the several states.” Jd. at 619-623
(Rutledge, J., concurring).

In 1820, Marshall reviewed a claim that, because
District residents were unrepresented in Congress, the national
legislature lacked the power to impose a direct tax upon the
Disirict. See Loughborough v. Blake, 18 U.S. (5 Wheat.) 317
(1820). If there were a Justice who would have been
particularly sensitive to this reprise of the Revolutionary War
battle cry of “no taxation’ without representation,” surely it
would have been Marshall—who served as a company
commander at Valley Forge. See JEAN EDWARD SMITH,
JOHN MARSHALL: DEFINER OF A NATION 62-65
(1996). Nonetheless, speaking for a unanimous Court,
Marshall held that Congress had the power to tax residents of
the District of Columbia despite their lack of representation.
See Loughborough, 18 U.S. (5 Wheat.) at 317. The District, he
said, “relinquished the right of representation, and has adopted
the whole body of Congress for its legitimate government.” Jd.
at 324. “Although in theory it might be more congenial to the
spirit of our institutions to admit a representative from the
district,” he declared, “certainly the Constitution does not

(37a

consider their want of a representative in Congress as
exempting it from equal taxation.” Jd. at 324-25.

The opinions do not end with those of Chief Justice
Marshall. In Heald v. District of Columbia, Justice Brandeis
also faced a claim that a congressional tax on the District was
unconstitutional “because it subjects the residents of the
District to taxation without representation.” 259 U.S. 114, 124
(1922). Like Marshall, Brandeis recognized that “[r]jesidents
of the district lack the suffrage and have politically no voice in
the expenditure of the money raised by taxation.” Jd.
Nonetheless, he concluded that “[t]here is no constitutional
provision which so limits the power of Congress that taxes can
be imposed only upon those who have political
representation.” Jd.; see also Palmore v. United States, 411
U.S. 389 (1973) (citing, with approval, Hepburn & Dundas, 6
U.S. (2 Cranch) at 445).

The cry of “no taxation without representation” has
reached the courts of this circuit as well. In Breakefield v.
District of Columbia, the Court of Appeals considered a
challenge to Congress’ imposition of an income tax upon
District residents “notwithstanding that they then had and now
have no elected representative in the Congress.” 442 F.2d
1227, 1228 (D.C. Cir. 1970). Petitioner acknowledged the
existence of contrary precedent, namely the Supreme Court’s
decisions in Loughborough and Heald, but “question[ed] both
the original soundness” of those decisions “and their
continuing vitality in the light of later Supreme Court
pronouncements.” /d. at 1229. “[Petitioner] presents those
contentions in the wrong forum,” the court said. “[I]t is for the
Supreme Court, not us, to proclaim error in its past rulings, or
their erosion by its adjudications since.” Jd. at 1229-30. We
are of the same view.

4. In sum, we conclude that constitutional text, history,
and judicial precedent bar us from accepting plaintiffs’
contention that the District of Columbia may be considered a
state for purposes of congressional representation under
Article I.

38a

Before proceeding to plaintiffs’ alternative argument,
we pause over another advanced by the dissent. As noted at
the outset of this Part, plaintiffs do not dispute that to succeed
under Article I they must be able to characterize themselves as
citizens of a state. Our dissenting colleague, however, does
dispute that assumption, contending that the Article’s repeated
use of the word “state” does not necessarily mean the Framers
intended to apportion representatives only among states. As
the dissent correctly points out, “the legal maxim expressio
unius est exclusio alterius (‘the mention of one thing implies
the exclusion of another’) is not always correct.” Jn re Sealed
Case, 181 F.3d 128, 132 (D.C. Cir. 1999) (en banc). And we
certainly should not resolve as important a question as that
now before us by rote application of such a canon of
construction.

This, however, is not a case where “[t]he ‘exclusio’ is
... the result of inadvertence or accident.” Ford v. United
States, 273 U.S. 593, 612 (1927) (internal quotation omitted).
As we have discussed above, the overlapping and
interconnected use of the term “state” in the relevant
provisions of 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.*> The
Constitution’s repeated references to states cannot be
understood, as the dissent urges, as merely the most practical
method then available for holding elections. Rather, they are
reflections of the Great Compromise forged to ensure the
Constitution’s ratification. There is simply no evidence that
the Framers intended that not only citizens of states, but
unspecified others as well, would share in the congressional
franchise.

as As we discuss below, this conclusion is not inconsistent

with the fact that the right to vote for federal officers is a right of
national citizenship. See infra Part V.B and note 69.

39a

As an alternative to the argument that the District may
be considered a state under Article I, the Alexander plaintiffs
contend that residents of the District should be permitted to
vote in congressional elections through Maryland, based on a
theory of “residual” citizenship in that state. This theory
depends heavily on the fact that residents of the land ceded by
Maryland apparently continued to vote in Maryland elections
during the period between the Act of 1790, by which Congress
accepted the cession, and the Organic Act of 1801, by which
Congress assumed jurisdiction and provided for the
government of the District. We discuss that history and its
implications below.

Although in the end we find that we cannot draw the
same conclusion plaintiffs do from the historical record, we
must begin by noting that there is a much greater obstacle to
plaintiffs’ success on this theory: it has already been rejected
in a decision binding upon this court. In Albaugh v. Tawes, a
three-judge district court considered a suit seeking a
declaratory judgment “that the District of Columbia is a part
of the State of Maryland for purposes of United States Senator
election ” 233 F. Supp. 576, 576 (D. Md. 1964). Plaintiff's
arguments were “based upon the fact that . . . during the
period between 1790 and the ‘Organic Act of 1801,” residents
of the territory ceded by the State of Maryland may have been
allowed to vote as residents” of that state. Jd. at 578. The
court rejected plaintiffs’ claims, noting the Supreme Court’s
decision in Reily v. Lamar that former residents of Maryland
lost their state citizenship upon “the separation of the District
of Columbia from the State of Maryland.” /d. (quoting Reily v.
Lamar, 6 U.S. (2 Cranch) 344, 356-57 (1805)). Albaugh
concluded that “residents of the District of Columbia have no
right to vote in Maryland elections generally, and specifically,
in the selection of United States Senators.” Jd. at 577.

The Supreme Court affirmed the decision of the three-
judge court. See Albaugh v. Tawes, 379 U.S. 27 (1964) (per
curiam). Although the Supreme Court’s affirmance was

40a

summary, the Court has reminded the lower courts that we are
bound by such affirmances “until such time as the Court
informs [us] that [we] are not.” Hicks v. Miranda, 422 U.S.
332, 344-45 (1975) (quoting Doe v. Hodgson, 478 F.2d 537,
539 (2d Cir. 1973)). The jurisdictional statement submitted to
the Supreme Court in A/baugh raised the principal theories we
consider in this Part, and also raised the “privileges or
immunities” claim considered in Part V.°° Cf. ROBERT L.
STERN ET AL., SUPREME COURT PRACTICE 219-20
(7th ed. 1993) (noting importance of evaluating issues raised
in appeal papers); see also Illinois State Bd. v. Socialist
Workers Party, 440 U.S. 173, 182-83 (1979); Mandel v.
Bradley, 432 U.S. 173, 176 (1977). Accordingly, the decision
in Albaugh forecloses the conclusion that District residents
may be allowed to vote in congressional elections through the

= The jurisdictional statement attacked the lower court
opinion for failing to accept the significance of the fact that, through
the effective date of the 1801 Organic Act, Maryland continued to
designate its District lands as part of the state’s federal
congressional districts. See Jurisdictional Statement at 4-5, Albaugh
v. Tawes, 379 U.S. 27 (1964) (No. 481) [hereinafter Albaugh
Jurisdictional Statement]; cf: infra Part IV.B.2. It further argued that
since “[t]he District of Columbia territory, like the rest of the State
of Maryland, was a charter member of the United States,” its
citizens “have always been citizens of the State of Maryland and
under the perpetual protection of the . . . ‘equal privileges’ clause.”
Albaugh Jurisdictional Statement at 7 (citing U.S. CONST. art. IV,
§ 2, cl. 1). This meant, plaintiff said, that the nght of District
citizens to vote could not constitutionally be denied. See /d.; cf.
infra Part IV.B.3; infra Part V.B. The jurisdictional statement also
raised the claim, made by amicus here, that the Organic Act was not
intended to “repeal[] the existing Maryland Congressional election
regulations which defined the District of Columbia as a part of the
State of Maryland,” since it provided “that the laws of the State of
Maryland, as they now exist, shall be and continue in force.”
Albaugh Jurisdictional Statement at 6 (quoting 2 Stat. 103, § 1); cf
infra note 46.

4la

State of Maryland. The Fourth Circuit has recently reached the
same determination, in a case raising the same basic claim.*’

Even if Albaugh were not an impediment, however, we
would still be unable to accept the “residual” citizenship
theory advanced by plaintiffs. That theory fails because the
Maryland citizenship of the District’s inhabitants was
extinguished upon the completion of the transfer of the seat of
the national government to the territory of the District. We set
forth our analysis in the following subsections.

1. The District Clause gave Congress the power to
exercise exclusive legislation “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.” U.S. CONST. art. I, § 8, cl.
17. In 1788, the General Assembly of Maryland had
authorized and required its representatives to cede any district
in the state for the national capital; Virginia did the same.*
After protracted debate over sites offered by several states,
Congress agreed upon a tract along the Potomac River;
Maryland agreed to cede land along the eastern bank while

"2 See Howard v. State Admin. Bd., 122 F.3d 1061 (4th Cir.
1997) (unpublished opinion), aff’g 976 F. Supp. 350 (D. Md. 1996)
(holding that plaintiff's argument, that as “a resident of the District
of Columbia . . . he has the right to participate in congressional
elections in the State of Maryland,” is “foreclosed by” Albaugh).
The Committee for the Capital City, amicus curiae here, was also
amicus in Howard.

_ See An Act to Cede to Congress a District of Ten Miles
Square in This State for the Seat of Government of the United
States, 2 Kilty Laws of Md., ch. 46 (1788); see also An Act for the
Cession of Ten Miles Square, or Any Lesser Quantity of Territory
Within This State, to the United States, in Congress Assembled, for
the Permanent Seat of the General Government, 13 Va. Stat. at
Large, ch. 32, at 43 (Hening 1823) (enacted 1789).

42a

Virginia agreed to cede land along the western.°? Congress
accepted the cessions by the Act of July 16, 1790, and
established the first Monday of December 1800 as the date for
the removal of the government to the District.“ In 1791,
Maryland ratified the cession, stating that “all that part of the
said territory called Columbia which lies within the limits of
this State shall be . . . forever ceded and relinquished to the
Congress and 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.””!

Congress’ acceptance of the cessions specified that the
“seat of the government of the United States” would “be
transferred to the district” on the “first Monday in December”

7 See generally Bowling, supra note 25, at 127-207.
- See An Act for Establishing the Temporary and Permanent Seat of
the Government of the United States, 1 Stat. 130 (1790). The Act stated:

SECTION 1. . . . That a district of territory, not
exceeding ten miles square, to be located as hereafter
directed on the river Potomac, at some place between the
mouths of the Eastern Branch and Connogochegue, be,
and the same is hereby accepted for the permanent seat
of the government of the United States. Provided
nevertheless, That the operation of the laws of the state
within such district shall not be affected by this
acceptance, until the time fixed for the removal of the
government thereto, and until Congress shall otherwise
by law provide.

SEC. 6. . . . That on the said first Monday in December,
in the year one thousand eight hundred, the seat of the
government of the United States shall, by virtue of this
act, be transferred to the district and place aforesaid.

Id.

41

An Act Concerning the Territory of Columbia and the City
of Washington, 1791 Md. Acts ch. 45, §2. As noted above,
Congress retroceded the Virginia portion of the District in 1846.

43a

of 1800. 1 Stat. 130, § 6. Until that time, Philadelphia was to
serve as the seat of government. See id. §5. During that
interim, the acceptance statute provided that “the operation of
the laws of the state [Maryland or Virginia, respectively]
within such district shall not be affected by this acceptance,
until the time fixed for the removal of the government thereto,
and until Congress shall otherwise by law provide.” Jd. § 1.
Similarly, in making their cessions, both Maryland and
Virginia stipulated that their jurisdiction “over the persons and
property of individuals residing within the limits of the
cession” would “not cease until” Congress did “by law
provide for the government thereof, under their jurisdiction, in
the manner provided by the [District Clause] of the
Constitution.” 1791 Md. Acts ch. 45, §2; 13 Va. Stat. at
Large, ch. 32, at 43. On February 27, 1801, Congress passed
the so-called “Organic Act,” providing for the government and
the administration of justice in the District of Columbia. See 2
Stat. 103.

There is evidence that during the period prior to the
transfer of the seat of government to the District, the residents
of the area continued to vote for Congress in Maryland and
Virginia. See WILLIAM TINDALL, ORIGIN AND
GOVERNMENT OF THE DISTRICT OF COLUMBIA 17
(1909); Raven-Hansen, supra, at 173-74. When the laws of
those states ceased having force in the District, however, the
states ceased treating District citizens as state citizens eligible
to vote in their elections—an event that occurred no later than
February of 1801. See Alexander Am. Compl. 497;
TINDALL, supra, at 17; Raven-Hansen, supra, at 174. Since
that date, District residents have been unable to vote in either
Maryland or Virginia.

2. The Alexander plaintiffs and several amici contend
that the above-described history, and particularly the fact that
residents of the area continued to vote in congressional
elections into the year 1800, demonstrates that the Framers did
not intend the cession of the states’ lands to deprive their
residents of the right to vote. As citizens of Maryland and

44a

Virginia, plaintiffs argue, the residents of the District were
originally part of the “People of the several States,” continued
io vote even after the land was ceded to the national
government, and hence “retain a residual citizenship in the
state[s] from which the District was created.” Alexander P\s.’
Opp’n at 16. This “historical experience,” they contend,
“confirms that otherwise stateless citizens may retain prior
state affiliation for purposes of exercising their constitutional
right to vote.” Alexander P\s.’ Summ. J. Mem. at 51-52.

We are unable to draw this conclusion from the history
recounted above. Contrary to plaintiffs’ suggestion, the fact
that residents of the Virginia and Maryland lands voted in
those states into 1800 did not reflect an understanding that
they would continue to do so after the District became the seat
of government. Rather, it reflected the fact that during this
period those lands were not yet the seat of government
(Philadelphia was), but instead remained part of the ceding
states. As the Circuit Court for the District of Columbia held
in 1801, “Virginia did not part with her jurisdiction until
congress could exercise it, which, by the [District Clause of
the] constitution, could not be until the district became the seat
of government.” United States v. Hammond, I Cranch C.C.
15, 26 F. Cas. 96, 96 (C.C.D.C. 1801). That, the court held,
occurred on “the first Monday of December, 1800” by virtue
of the Act of 1790. Jd.” In Reily v. Lamar, Chief Justice
Marshall reached a similar conclusion with respect to

* In addition to the District Clause and the Act of 1790, the
court relied on the proviso in the Virginia cession act, which stated
that “the jurisdiction of the laws of this commonwealth over the
persons and property of individuals residing within 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, in manner provided by
the [District Clause].” Hammond, 26 F. Cas. at 97 (quoting 13 Va.
Stat. at Large, ch. 32, at 43); see also 1791 Md. Acts ch. 45, § 2
(parallel proviso in Maryland’s ratification of its cession).

4Sa

Maryland, although for the purposes of that case he found it
“not material to inquire, whether the inhabitants of the city of
Washington ceased to be citizens of Maryland on the 27th day
of February 1801,” when the Organic Act took effect, “or on
the first Monday of December 1800.” 6 U.S. (2 Cranch) 344,
357, 2 L. Ed. 300 (1805); see also Young v. Bank of
Alexandria, 8 U.S. (4 Cranch) 384, 396, 2 L. Ed. 655 (1808)
(Marshall, C.J.) (“{UJjnder the terms of the cession and
acceptance of the district, . . . the power of legislation
remained in Virginia until it was exercised by congress.”’). The
precise date is likewise immaterial for our purposes.””

In sum, during the interim period, the territory’s
residents continued to vote not as “residual” citizens of
Maryland, but as actual citizens of that state.“* Only thereafter
did they lose their state citizenship, and with it their right to
vote. See Raven-Hansen, supra, at 174 (“District residents did

ws The three-judge court in Albaugh held that “[s]ince the
‘Organic Act of 1801,’ it has been uniformly recognized . . . that
residents of the District of Columbia are no longer citizens of the
State of Maryland.” 233 F. Supp. at 578.

24 In Hammond, 26 F. Cas. at 99, the court held that “[b]y the
constitution, congress could not exercise exclusive legislation over
the district until it had become the seat of government.” Even if we
were to assume to the contrary that Congress acquired the authority
to exercise exclusive control over the District in 1790, that would
not change the analysis. Whatever Congress’ authority may have
been during the interim period, it left control of the area to
Maryland and Virginia. Since 1801, however, Congress has
continuously exercised exclusive authority over the District. It is
thus unnecessary for us to consider whether District residents would —
be able to vote had Congress never exercised its authority, or had it
subsequently ceded partial authority back to the state. See
discussion of Evans v. Cornman, 398 U.S. 419 (1970), infra Part
IV.B.4.

not lose state citizenship until December, 1800”).*° We thus
conclude, in accord with the academic authority upon whom
plaintiffs otherwise heavily rely, that this “decade of voting
and representation provided no_ precedent for the
representation of District citizens.” Jd.*°

bi In 1801, Maryland law provided that “[t]he election of
representatives for the state to serve in congress, shall be made by
the citizens of this state, qualified to vote for members of the house
of delegates.” A DIGEST OF THE LAWS OF MARYLAND 227
(Herty 1799). Maryland’s Constitution, in turn, imposed, inter alia,
a 12-month residency requirement on voting for members of the
House of Delegates. See MD. CONST. of 1776, art. Il, reproduced
in 4 SOURCES AND DOCUMENTS OF UNITED STATES
CONSTITUTIONS 376 (William F. Swindler ed., 1975). The
current Maryland Constitution provides that only those “resident of
the State as of the time for the closing of registration next preceding
the election, shall be entitled to vote.” MD. CONST. art. I, § 1.

46

The Committee for the Capital City, appearing as amicus
curiae, contends that District residents retain their right to vote in
Maryland because Maryland’s laws were never effectively
terminated in the District. See Br. of the Committee for the Capital
City at 1-2. It notes that in accepting the ceded territory in 1790,
Congress stated that “the laws of the state within such district shall
not be affected . . . until Congress shall otherwise by law provide.”
Id. at 11 (quoting 1 Stat. 130, § 1). Congress never did “otherwise
provide,” the Committee argues, because the Organic Act of 1801
merely stated that “the laws of the state of Maryland, as they now
exist, shall be and continue in force.” Jd. at 10 (quoting 2 Stat. 195,
§ 1). Hence, it contends, “Congress has never enacted legislation
that repealed or superseded those Maryland laws, and therefore they
still apply—by the express terms of the Act of 1801 establishing the
District’s local governance—to those persons living in that portion
of the State of Maryland that was ceded to the federal government.”
Id. at 11-12.

This is simply a misinterpretation of the 1801 statute. By
continuing the authority of Maryland’s laws “as they now exist,”
Congress did nothing more than fix them (as they stood as of that
(continued...)

47a

Nor is there any other evidence of an intent, or an
understanding, that former residents of Maryland and Virginia
would continue to vote in those states after the District was
established.*’ To the contrary, both the Maryland and Virginia
Statutes ratifying the cession made clear that their former
territory was “forever ceded and relinquished to the Congress
and 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.” 1791 Md. Acts ch. 45, § 2;
accord 13 Va. Stat. at Large, ch. 32, at 43. The early judicial
cases also made clear that “[b]y the separation of the district of

date) as a part of the common law of the District; without such a
provision the new District would have had no laws upon which to
build. It did not, however, provide any continuing governmental or
regulatory authority to Maryland. See generally Brooks v. Laws, 208
F.2d 18, 25 (D.C. Cir. 1953); Hammond, 26 F. Cas. at 98; see also
Reily, 6 U.S. (2 Cranch) at 356-57. Indeed, Maryland had renounced
any such authority. See 1791 Md. Acts ch. 45, § 2. In any event, in
1901 Congress expressly repealed the applicability to the District of
acts of the Maryland Assembly, retaining only the common law and
the British statutes in force in Maryland on February 27, 1801
(where consistent with provisions of the D.C. Code). See Act of
March 3, 1901, ch. 854, 31 Stat. 1189, 1434. See generally Brooks,
208 F.2d at 25; Williams v. United States, 569 A.2d 97, 99 (D.C.
1989).

47

One important piece of evidence of an understanding that
District residents would not continue to vote in those states is
contained in Article I, section 2, clause 2, which provides that no
person may be a representative unless “an Inhabitant of that State in
which he shal! be chosen.” U.S. CONST. art. I, § 2, cl. 2; see also
id. art. I, § 3, cl. 3 (imposing same restriction on senators). Even if
the residents of the District could be characterized as “residual
citizens” of their former states, they surely are not “inhabitants”
thereof. Plaintiffs’ theory would make the District the only area
where all of the voters are constitutionally unqualified to serve as
their own representatives.

Columbia from the state of Maryland, the complainant ceased
to be a citizen of that state.” Reily, 6 U.S. (2 Cranch) at 357;
accord Hammond, 26 F. Cas. at 98; see also Custis v. Lane, 17
Va. (3 Munf.) 579 (1813) (holding that District resident could
no longer vote in Virginia because he was no longer “a citizen
of Virginia, abiding, or inhabiting therein, but passed, with ~
that territory, from the jurisdiction of this commonwealth, by
the act of cession”). Once again, such evidence as there is
indicates that the contemporary understanding was that the
territory’s residents would lose their vote in their former states
as soon as Congress assumed exclusive jurisdiction.“ And,
after that occurred and the residents did lose their vote,
altogether missing from the public record is any outpouring of
complaints that the franchise was being unlawfully withheld.
See supra note 34 and accompanying text.

3. Intertwined with plaintiffs’ above argument, that the
creation of the District was not constitutionally intended to
withdraw the right to vote in Maryland, is another argument:
namely, that it could not have had that effect. The original
residents of the District were among the people of the states by
virtue of their citizenship in Maryland, plaintiffs argue, and
they therefore had an inalienable right to vote that could not be
withdrawn. Moreover, plaintiffs contend that right continues
to inhere in those who currently are residents of the District.
Our dissenting colleague offers a variation on this theme.
Although he concludes that District residents should be
permitted to vote in the District rather than Maryland, his
rationale is the same: residents of the District had the right to
vote prior to 1801; this was a right they were entitled to
bequeath to their “political posterity”; and this right could not

™ See supra Part IV.A.2; see also ENQUIRIES INTO THE
NECESSITY, supra, at 15-16 (warning that effect of assumption of
jurisdiction by Congress would be that “the Territory of Columbia
[would] cease[] to be component parts of the states respectively, to
which it formerly belonged,” and that residents would thereby lose
their “share in electing the members of congress”).

49a

be removed by Maryland’s act of cession or Congress’
assumption of jurisdiction.

We cannot accept the argument that current residents
of the District retain residual rights because other people,
living 290 years earlier in the same place, had such rights. In
the United States, personal rights generally do not “run with
the land.” Even if it could be argued that the right to vote was
a privilege that irrevocably vested from “the moment the
United States Constitution was ratified” in “every citizen
living in what were then the thirteen states of the union,”
including the portions of Maryland and Virginia that would
later become the District, Br. of the Committee for the Capital
City at 1, the argument would not extend to the present
plaintiffs. By virtue of the passage of 200 years, all of the
plaintiffs—whether by birth or a combination of birth and
their ancestors’ migration—arrived on the scene after the land
already had become a district whose residents, by
constitutional contemplation, lacked a vote in the national
Congress. Whatever rights the original residents of the area
may have had, none of them are alive to press them before this
court.

Moreover, upon close examination, this argument is
not independent of the constitutional intent argument rejected
above. At bottom, plaintiffs do not argue that notwithstanding
the intent of the Constitution, the right to vote could not have
been taken from District residents. They do not make that
argument because their ultimate appeal is to the Constitution
itself: they cannot argue both that the denial of their right to
vote is unconstitutional, and that it is irrelevant whether the
Constitution recognizes such a right. Instead, plaintiffs argue
that the Constitution gave them the right to vote upon its
ratification in 1789, and that it was the Organic Act of 1801—
not the Constitution—that purportedly took it away. As one
group of amici put it, “It was . . . the exercise of federal
jurisdiction over the District—and not the text or intent of the
Constitution itself—that denied D.C. residents their right to

50a

popular representation in the federal legislature.” Mem. Amici
Curiae for Professors James D.A. Boyle et al. at 16.

This, however, merely returns us to ground previously
plowed. We have already concluded that it is the Constitution
itself that is the source of plaintiffs’ voting disability. Under
Article I, voters for the House of Representatives must “have
the Qualifications requisite for Electors of the most numerous
Branch of the State Legislature.” U.S. CONST. art. I. § 2, cl.
1. Because those who live in the District lack state residency,
they cannot qualify to vote in Maryland’s (or any other state’s)
elections, and hence cannot vote for its representatives in the
House. See MD. CONST. art. I, § 1.“° Thus, it was not the
Organic Act or any other cession-related legislation that
excluded District residents from the franchise, something we
agree could not have been done by legislation alone. Cf.
Lucas v. Forty-Fourth General Assembly of Colorado, 377
U.S. 713, 736, 84 S. Ct. 1459, 12 L. Ed. 2d 632 (1964)
(holding that-‘an individual’s constitutionally protected right
to cast an equally weighted vote cannot be denied even by a
vote of a majority of a State’s electorate’”’).”° Rather, exclusion
was the consequence of the completion of the cession
transaction—which transformed the territory from being part

vs Although the Equal Protection Clause “restrains the States
from fixing voter qualifications which invidiously discriminate,”
Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1996) (declaring
Virginia poll tax unconstitutional), the Court has not questioned
“the power of a State to impose reasonable residence restrictions on
the availability of the ballot,” id. at 666. See Carrington v. Rash,
380 U.S. 89, 96 (1965) (emphasizing that states are “free to take
reasonable and adequate steps . . . to see that all applicants for the
vote actually fulfill the requirements of bona fide residence”); see
also Saenz v. Roe, 526 U.S. 489 (1999) (noting that “Citizenship
Clause of the Fourteenth Amendment expressly equates citizenship
with residence”).

“ Nor did any of those statutes purport to disenfranchise

. District residents: none addressed the issue of voting rights at all.

5la

of a state, whose residents were entitled to vote under Article
I, to being part of the seat of government, whose residents
were not. Although Congress’ exercise of jurisdiction over the
District through passage of the Organic Act was the last step
in that process, it was a step expressly contemplated by the
Constitution. See U.S. CONST. art. I, § 8, cl. 17.7’

4. We next consider an additional argument advanced
in support of a right to vote in Maryland elections, this one
based not only on the historical relationship between the
District and Maryland, but also on the Supreme Court’s ruling
that residents of a federal enclave must be permitted to vote in
the state from which the enclave was created. In Evans v.
Cornman, the Supreme Court struck down under the
Fourteenth Amendment’s Equal Protection Clause a Maryland
residency requirement that prevented persons living on the
grounds of the National Institute of Health (NIH) from voting
in state and federal elections. 398 U.S. 419 (1970). NIH had
become a federal reservation in 1953, when Maryland ceded
jurisdiction over the property to the United States. See id. at
420-21. Fifteen years later, the state denied NIH residents the
‘night to vote.

The Court began its analysis by noting that:

7 Plaintiffs also contend that the Overseas Citizens Voting

Rights Act (OCVRA) of 1975, 42 U.S.C. § 1973ff-1, by which
Congress required the states to permit overseas Americans to vote
absentee in the last state in which they were domiciled, shows that
Americans retain a residual citizenship in their former states where
necessary to vindicate the right to vote in congressional elections.
See Alexander Pls.’ Summ. J. Mem. at 51-53. Congress premised
the OCVRA on a “reasonable extension of the bona fide residence
concept.” Attorney Gen. of Guam, 738 F.2d at 1019 (quoting H.R.
REP. NO. 94-649, at 7 (1975)). There is a significant distinction
between extending the right to vote to individuals who themselves
once lived in a specific state, and extending it to other individuals
who never have, based on the fact that still others were residents of
Maryland 200 years ago.

52a

Appellees clearly live within the geographical
boundaries of the State of Maryland, and they
are treated as state residents in the census and
in determining congressional apportionment.
They are not residents of Maryland only if the
NIH ceased to be a part of Maryland when the
enclave was created. However, that “fiction of
a state within a state” was specifically rejected
by this Court in Howard v. Commissioners of
Louisville, 344 U.S. 624, 627 (1953), and it
cannot be resurrected here to deny appellees the
right to vote.

Id. at 421-22. It then proceeded to consider whether the state
could deny plaistiffs the vote on the ground that they were
neither substantially interested in nor affected by state
electoral decisions. See id. at 422. Maryland alleged that the
plaintiffs were substantially less interested in state affairs than
other Maryland residents because, under the Enclaves Clause,
U.S. CONST. art. I, § 8, cl. 17, Congress had the power to
exercise exclusive jurisdiction over the NIH.

The Supreme Court rejected the state’s argument,
noting that “the relationship between federal enclaves and the
States in which they are located” had “changed considerably”
over the years. Evans, 398 U.S. at 423. In particular, it noted
that Congress had passed a series of statutes expressly
permitting states to extend many of their laws to cover enclave
residents, including their criminal, tax, unemployment, and
workers’ compensation laws. See id. at 424 (citing 18 U.S.C.
§ 13; 4 U.S.C. §§ 104-110; 26 U.S.C. § 3305(d); and 40
U.S.C. § 490). Moreover, it noted that plaintiffs were
“required to register their automobiles in Maryland and obtain
dri\ ers’ permits and license plates from the State; they are
subject to the process and jurisdiction of State courts; they
themselves can resort to those courts in divorce and child
adoption proceedings; and they send their children to
Maryland public schools.” Jd. All of this led the Court to
conclude that

53a

In their day-to-day affairs, residents of the NIH
grounds are just as interested in and connected
with electoral decisions as they were prior to
1953 when the area came under federal
jurisdiction and as are their neighbors who live
off the enclave. In nearly every election,
federal, state, and local, for offices from the
Presidency to the school board, and on the
entire variety of other ballot propositions,
appellees have a stake equal to that of other
Maryland residents.

Id. at 426. Accordingly, Evans held that NIH residents were
“entitled under the Fourteenth Amendment to protect that
stake by exercising the equal night to vote.” Jd.

Plaintiffs here argue that since the residents of federal
enclaves are entitled to vote under Evans, the residents of the
District should be so entitled as well. There is some appeal to
that argument, as Congress’s authority to govern enclaves is
identical to its authority over the District, and is conferred by
the same clause of the Constitution. See U.S. CONST. art. I,
§ 8 (“The Congress shall have Power . . . . [t]o exercise
exclusive Legislation in all Cases whatsoever, over such
District . . . as may, by Cession of particular States . . . become
the Seat of the Government . . ., 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,
Magazines, Arsenals, dock-Y ards, and other needful Buildings

ss

= Although the constitutional text indicates that Congress has

“like Authority” over both the District and the enclaves, the text
does refer to them differently. The District is described as being
created by “Cession” of particular states, a word which indicates
that thereafter the District would no longer be part of those states.
Enclaves, on the other hand, are areas purchased with the consent of
the legislature of the state “in which the Same shall be,” which may
(continued...)

54a

- But the fact that Congress may have identical authority
over both the District and the enclaves is not dispositive,
because the ultimate result in Evans rested on the fact that
Congress had not exercised that authority over NIH.** As
noted above, Congress had passed statutes permitting
Maryland to exercise its own authority in the enclave, and
Maryland had done so extensively. It was Maryland’s exercise
of authority over the plaintiffs in that case—in areas as
disparate as motor vehicle regulation, state court jurisdiction,
and public education—that gave them “a stake equal to that of
other Maryland residents.” Evans, 398 U.S. at 426. The case
before us is plainly not analogous in this respect. Congress has
ceded none of its authority over the District back to Maryland,
and Maryland has not purported to exercise any of its
authority in the District.™

explain why Evans viewed enclaves as remaining parts of the states
from which they were created. We need not resolve the significance
of this difference in constitutional language, however, because the
difference in the way in which Congress has exercised its authority
over enclaves and the District distinguishes this case from Evans in
any event. See discussion infra pp. 59-60.

” Indeed, the three-judge district court whose decision the

Supreme Court affirmed expressly distinguished that case from a
hypothetical in which the federal government did assert exclusive
jurisdiction over an enclave. See Cornman v. Dawson, 295 F. Supp.
654, 656 (D. Md. 1969). For the same reason, the fact that
Maryland’s initial statute ceding NIH, like the statute ceding the
District, gave the federal government the ability to exercise
exclusive authority over NIH is not decisive, since Congress plainly
did not do so.

= We disagree with the dissent’s suggestion that Congress’

delegation of authority to the District government puts the District’s
situation on a par with that of the NIH enclave in Evans. In the latter
circumstance, Congress delegated authority to another sovereign
(Maryland), and the Court held that sovereign could not treat two
(continued...)

55a

Plaintiffs do not dispute this distinction, and as a
consequence do not contend that they have a right to vote in
elections for the Maryland state legislature. Instead, they argue
that while the absence of the exercise of Maryland authority
over District residents might mean they have an insufficient
interest in elections to Maryland’s own legislature, “District
citizens have an equally vital stake in elections to Congress”
as other Maryland residents. Alexander P\s.’ Summ. J. Mem.
at 27. Finding District residents qualified to vote for Congress
but not for the Maryland legislature, however, would turn
Article I on its head. As we have noted, Article I, section 2
states that “the [congressional] Electors in each State shall
have the Qualifications requisite for Electors of the most
numerous Branch of the State Legislature.” U.S. CONST. art.
I, §2, cl. 1. Plaintiffs’ enclave theory, by contrast, would
permit residents of the District to vote in Maryland’s
congressional elections notwithstanding that they lack—even
under an Evans theory—precisely those qualifications.

Finally, and most important, adopting plaintiffs’
argument would require us to ignore the result in Albaugh,
which barred District residents from voting in Maryland’s
elections for the United States Senate. See discussion supra
pp. 43-45. We do not have the authority to do so. Although
there may be tension between Evans and Albaugh,”° it is a

classes of residents (those within and without the enclave)
differently. Here, by contrast, Congress has merely delegated some
of its power to its own creature, the District government. The
governmental structure through which Congress chooses to exercise
its authority over the District—provided it does not delegate that
authority to another sovereign—cannot be determinative of the
voting rights of District residents.

55

There appear to have been two steps to the Evans analysis.
First, in rejecting the “fiction of a state within a state,” the court
rejected the suggestion that the NIH grounds ceased to be part of
Maryland when the enclave was created. See Evans, 398 US. at
(continued...)

56a

tension that arises only if Evans is extended beyond its own
holding in two ways: to a situation in which the ceding state
no longer asserts any jurisdiction, and to a remedy limited to
the right to vote in federal elections. Albaugh, on the other
hand, is directly on point here without any extensions: it
directly and expressly denies District residents a right to vote
in Maryland’s federal elections.

Plaintiffs contend that it is Evans, rather than Albaugh,
that is the harbinger of the Supreme Court’s future course.
Whether that is true, however, is not for us to judge. As the
Supreme Court has repeatedly admonished the lower courts,
“if a precedent of this Court has direct application in a case,
yet appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of
overruling its own decisions,” Agostini v. Felton, 521 US.
203, 237 (1997) (quoting Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)).
We must apply the law as it now stands and, until the Supreme
Court instructs otherwise, that law is set forth in Albaugh.

5. Plaintiffs rightly note that the cession of the lands of
Virginia and Maryland “did not take away any of the
individual constitutional rights guaranteed to District citizens.”
Alexander P\s.’ Summ. J. Mem. at 46. As the Supreme Court
declared in O’Donoghue v. United States, “[t{he mere cession

421. The rationale for this declaration was unstated, other than by
reference to the Court’s prior similar statement in Howard. Standing
alone, this declaration would appear to be in tension with the
affirmance in Albaugh, although a difference in the constitutional
language describing the District and the enclaves could explain it.
See supra note 52. As discussed above, however, the Court did not
rest its decision on this first step, but instead went on to consider
whether enclave residents had a stake in the elections equal to that
of other Maryland residents. See Evans, 398 U.S. at 426.

57a

of the District of Columbia to the Federal government
relinquished the authority of the states, but it did not take it out
of the United States or from under the aegis of the
Constitution.” 289 U.S. 516, 541 (1933) (quoting Downes v.
Bidwell, 182 U.S. 244, 260-61 (1901)).*° Yet, as the same
opinion also noted, “when a provision of the Constitution is
invoked, the question which arises is, not whether the
Constitution is operative” in the District or territories, “but
whether the provision relied on is applicable.” Jd. at 542
(quoting Downes, 182 U.S. at 292). For the reasons set forth
above, we conclude that the constitutional provisions plaintiffs
rely upon here—the cl

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1473%3A2. Public record. Not legal advice.