GUEST BLOG: Extra Seats?…

We are fortunate enough to have an outstanding guest blog by my old friend, Chris Hill. Today, he takes on the The D.C. Fair and Equal House Voting Rights Act which isn’t getting a lot of play outside Utah or the District of Columbia.
~WS~

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An interesting piece of legislation has been quietly making the rounds in Washington, under the radar screen throughout most of the country except the District of Columbia and Utah. However, it could have significant ramifications for the next presidential election. What would catch the attention of these two politically diametrically opposed populaces? An extra seat for each in the U.S. House of Representatives. A little background may be helpful.
Washington D.C. (the district politicians, not the federal politicians) has complained long and hard about its lack of representation in our federal government – no senators, no electoral votes, and only one non-voting member of the House of Representatives. The mantra may sound familiar – it goes something like “no taxation without representation.” Utah has complained recently about reapportionment of representatives after the 2000 census. In 2000, the Census Bureau gave the last house seat to North Carolina, with Utah being the next state in line to miss the last seat. However, the Census Bureau counted overseas military personnel based in North Carolina as residents of the state, but refused to count volunteer LDS missionaries temporarily out of the state of Utah. Had the census been consistent in its treatment of these absent residents, Utah, not North Carolina, would have received the last house seat. D.C. and Utah have each lost legal challenges to their plights. This really does effect the rest of the country – just be patient.
A compromise has been offered. A bill has been introduced, and hearings were held last week in the House, that would increase the number of representatives from 435 to 437. Why not keep it at 435? Because giving D.C. a voting representative would necessarily require taking away the last seat awarded to North Carolina , and Congress prefer to giveth, not taketh away (except for taxes). Why not just increase the size of the House to 436? Republicans would never go along with adding a vote guaranteed to be liberal for as long as the eye can see. The theory is to give representation to D.C.’s residents, and offset the guaranteed democrat seat with a guaranteed republican seat by giving the other to Utah to placate their perceived injustice. The proposal is receiving bipartisan support. Sounds like a good result in the model of the Great Compromise, right?
The only catch I can see is that it is unconstitutional. Just a minor road bump, but not one Congress has ever seemed to worry about before. See, the Constitution says that House members shall be chosen “by the people of the several states,” and representatives must “be an inhabitant of that state in which he shall be chosen.” U.S. Constitution, Article I, Section 2 (emphasis added). Additionally, the Constitution spells out who gets how many representatives: “Representatives and direct taxes shall be apportioned among the several states which may be included within this union.” Id. See also Amendment XIV (“Representatives shall be apportioned among the several states according to their respective numbers.”) Last time I looked at the flag, there were still only 50 stars. We haven’t put new ones on the flag for Puerto Rico, American Samoa, Guam, or any of the other territories or districts. D.C. is not a state. Awarding it a House seat contradicts the Constitution. Unless I’m missing something and “states” doesn’t mean “states.” Surprisingly, the House Committee on Government Reform didn’t let that stop it from approving the bill 29-4, sending it on to the House Judiciary Committee. Just because everyone seems to be OK with this, I must part ways with my fellow citizens of Utah that desire this result and stand up for upholding the Constitution. If the Constitution says “no,” then the only way to get to “yes” should be through amendment.
Now, here’s where it gets strategerical. Left wing liberals are scared that this bill will pass, get challenged in Court, Utah’s surely-to-be-Republican representative will be sworn in as soon as the legislation is effective, while D.C.’s representative will be fighting legal battles and never take office. Obviously, they haven’t read the bill itself. The bill has a nonseverability clause. In the event any portion of the act is deemed unconstitutional (i.e. appointing a House seat to the District of Columbia), the rest of the act becomes invalid. In other words, if D.C.’s House representative gets the judicial boot, Utah’s goes with him. My fear about passing the bill is this – Utah will be getting its 4th House seat in the 2010 census anyway, by virtue of population shifts. So, while the Democrats will always get seat number 436 out of D.C., there is no forecasting who gets the benefit in the 2012 elections – that will depend on which state gets the extra seat after the census that would have been shut out had the number of seats stayed 435. Why give the Democrats any more guarantees?
Now for the final kicker – Electoral College delegates are apportioned on the basis of how many representatives and senators a state has. If this bill passes, you can guarantee one more Republican elector from Utah (remember, Utah is the only state that voted Bill Clinton third, behind Ross Perot, in the 1992 presidential election). Even if a court allows D.C. to retain its House seat, D.C.’s contribution to the Electoral College is fixed at 3, thanks to the XXIII Amendment. In an era where statistical ties and close calls has been the norm in presidential elections, each additional Republican elector makes it harder for the Democrats to hit their winning number.
So, while I have a philosophical resistance to supporting a bill I believe to be unconstitutional, and generally oppose Congress trying to legislate constitutional amendments, I will be watching this bill closely to see if there is any helpful impact on the 2008 presidential election. As for Utah and D.C., here’s my take. If Utah couldn’t get a federal judge in Utah to agree that it has been wronged, just wait four years for the 2010 census. And if D.C.’s residents don’t like a lack of voting representation at the federal level, they can move to Virginia or bring a statehood constitutional amendment. Their plight is no different than any other territory. In fact, they already have it better off – they get electoral college votes. That’s more than I would give them, but then, I wasn’t consulted on the XXIII Amendment. Too bad.
Christopher Hill
ConservativeBlogger.com
(A life-long conservative, Christopher Hill is one of the oldest and dearest friends of the ConBlog. A lawyer by trade, he resides in Utah with his wife and children where he longs for the day BYU’s Cougars are college football’s top team and the BCS has been eliminated.)