	Proposed Legislation and Rule Change

A variety of proposals were made in the 110 th Congress regarding granting the Delegate of the District of Columbia voting rights in the House. 78 , which proposed House Rule changes allowing the District of Columbia delegate (in addition to the Resident Commissioner of Puerto Rico and the delegates from American Samoa, Guam, and the Virgin Islands) to vote in the Committee of the Whole, subject to a revote in the full House if such votes proved decisive. H.Res. 78 was approved by the House on January 24, 2007. Then, on April 19, 2007, Congress passed a bill introduced by Delegate Eleanor Holmes Norton, H.R. 1905 , the District of Columbia House Voting Rights Act of 2007, which would have granted the District a voting representative in the full House. A similar bill, S. 1257 , was considered by the Senate on September 18 of that year, but a motion to invoke cloture failed by a vote of 57-42. Similar bills to give the Delegate a vote in the Full House— H.R. 157 and S. 160 —have been introduced in the 111 th Congress. S. 160 was approved by the Senate on February 26, 2009, by a vote of 61-37. 78 are similar to amendments to the House Rules that were in effect during the 103 rd Congress. H.R. It was soon challenged, but it was upheld at both the District Court and the Court of Appeals level. It would appear, however, that the proposal was upheld primarily because of the provision calling for a revote when the vote of the delegates or residents was decisive in the Committee of the Whole. The opinions of the Justices in Tidewater Transfer Co. appear to be no different. Arguably, granting the Delegate a vote in the House involves an extension of a fundamental right. Assuming that the Delegate for the District of Columbia could not cast a vote in the full House, a separate question arises as to whether, as provided for by the House Rules amended by H.Res. Conclusion

In sum, it is difficult to identify either constitutional text or existing case law which would directly support the allocation by Congress of the power to vote in the full House on the District of Columbia Delegate. Further, that case law which does exist would seem to indicate that not only is the District of Columbia not a "state" for purposes of representation, but that congressional power over the District of Columbia does not represent a sufficient power to grant congressional representation. In particular, at least six of the Justices who participated in what appears to be the most relevant Supreme Court case, National Mutual Insurance Co. of the District of Columbia v. Tidewater Transfer Co. , authored opinions rejecting the proposition that Congress's power under the District Clause was sufficient to effectuate structural changes to the political structures of the federal government. Further, the remaining three Justices, who found that Congress could grant diversity jurisdiction to District of Columbia citizens despite the lack of such jurisdiction under Article III, specifically limited their opinion to instances where there was no extension of any fundamental right nor substantial disturbance of the existing federalism structure. To the extent that providing District residents with House representation could be so characterized, then one could argue that all nine Justices would have found the instant proposal to be unconstitutional. Although not beyond question, it would appear likely that Congress does not have authority to grant voting representation in the House of Representatives to the District of Columbia as contemplated by H.R. On the other hand, because the provisions of H.Res. 78 allowing Delegates a vote in the Committee of the Whole would be largely symbolic, these amendments to the House Rules are likely to pass constitutional muster.
A variety of proposals were made in the 110th Congress regarding granting the Delegate of the District of Columbia voting rights in the House. On January 24, 2007, the House approved H.Res. 78, which changed the House Rules to allow the D.C. delegate (in addition to the Resident Commissioner of Puerto Rico and the delegates from American Samoa, Guam, and the Virgin Islands) to vote in the Committee of the Whole, subject to a revote in the full House if such votes proved decisive. A bill introduced by Delegate Eleanor Holmes Norton, H.R. 1905, the District of Columbia House Voting Rights Act of 2007, would have given the District of Columbia Delegate a vote in the Full House. On April 19, 2007, H.R. 1905 passed the House by a vote of 241 to 177. A related bill, S. 1257, was considered by the Senate on September 18 of that year, but a motion to invoke cloture failed by a vote of 57-42. Similar bills to give the Delegate a vote in the Full House—H.R. 157 and S. 160—have been introduced in the 111th Congress. S. 160 was approved by the Senate on February 26, 2009, by a vote of 61-37.
These two approaches appeared to raise separate, but related, constitutional issues. As to granting the Delegate a vote in the full House, it is difficult to identify either constitutional text or existing case law that would directly support the allocation by statute of the power to vote in the full House to the District of Columbia Delegate. Further, that case law that does exist would seem to indicate that not only is the District of Columbia not a "state" for purposes of representation, but that congressional power over the District of Columbia does not represent a sufficient power to grant congressional representation. In particular, at least six of the Justices who participated in what appears to be the most relevant Supreme Court case on this issue, National Mutual Insurance Co. of the District of Columbia v. Tidewater Transfer Co., authored opinions rejecting the proposition that Congress's power under the District Clause was sufficient to effectuate structural changes to the federal government. Further, the remaining three Justices, who found that Congress could grant diversity jurisdiction to District of Columbia citizens despite the lack of such jurisdiction in Article III, specifically limited their opinion to instances where the legislation in question did not involve the extension of fundamental rights or substantially disturb the political balance between the federal government and the states. To the extent that granting the Delegate a vote in the house would be found to meet these distinguishing criteria, all nine Justices in Tidewater Transfer Co. would arguably have found the instant proposal to be unconstitutional.
H.Res. 78, on the other hand, is similar to amendments to the House Rules that were adopted during the 103rd Congress and survived judicial scrutiny at both the District Court and the Court of Appeals level. It would appear, however, that these amendments were upheld primarily because of the provision calling for a revote by the full House when the vote of the delegates was decisive in the Committee of the Whole. In conclusion, although not beyond question, it would appear likely that Congress does not have authority to grant voting representation in the House of Representatives to the Delegate from the District of Columbia as contemplated under H.R. 1905. As the revote provisions provided for in H.Res. 78 would render the Delegate's vote in the Committee of the Whole largely symbolic, however, the amendments to the House Rules would be likely to pass constitutional muster.