Constitutional Precedent for D.C. Voting Rights: Congress Granted Them Before

By Robert Schlesinger, Thomas Jefferson Street blog

For 10 years, once upon a time, Washington, D.C. residents had congressional representation—even though they were not residents of a state. This is a very strong argument for the constitutionality of the D.C. voting rights bill currently stalled in the House—especially since the constitutional framers were still on the scene at the time.

As I blogged earlier, conservative legal luminaries Kenneth Starr and Viet Dinh wrote a recent op-ed making the case that the founding fathers (and the Constitution) would approve of Congress granting D.C. a voting representative by way of regular legislation rather than constitutional amendment.

Their case includes an interesting historical tidbit of which I had been unaware—that the original D.C. residents had voting rights.

If any doubt remains whether America's founders would allow Congress to provide voting rights for District residents, the fact that they did it themselves should put that doubt to rest. Virginia and Maryland ceded land for the District in 1788-89. An act of Congress in 1790 provided that residents in that area, even though they no longer lived in a state, could vote in congressional elections. If Congress in 1790 could grant voting rights to Americans who lived in the land ceded for the District, Congress in 2009 can do so again.

Left unanswered is this question: What happened to those voting rights?

According to the American Bar Association, they were taken away when D.C. became the seat of the federal government.

The same constitutional authority was exercised by the very first Congress, in 1790, when Congress accepted the cession by Maryland and Virginia of the ten-mile-square area constituting the District and provided by statute that its residents would continue to enjoy the same legal rights—including rights to vote in federal and state elections—which they had possessed under Maryland and Virginia laws prior to acceptance by Congress of the Cession. Act of July 16, 1790, chapter 28, section 1, 1 Stat. 130. Under this federal legislation, residents of the District were able to vote, from 1790 through 1800, for members of the United States House of Representatives (and for members of the Maryland and Virginia Legislatures, which then elected United States Senators).

Voting representation in Congress for District residents ceased in 1801, when the District of Columbia became the Seat of Government, and Congress enacted the Organic Act of 1801, which provided for governance of the nation's capital but which contained no provision for District residents to vote in elections for the Congress that had the "exclusive" power to enact the laws which would govern them. Since the 1801 Organic Act also had the effect of terminating District residents' right to vote in any elections held in Maryland and Virginia, they were left disenfranchised from voting for Members of Congress.

Whether the fundamental right of D.C. residents to representation in the federal government was denied by design or omission is unclear and beside the point. Here's the bottom line: There's legal precedent for Congress passing laws enforcing that basic right.

On Facebook? You can keep up with Thomas Jefferson Street blog postings through Facebook's Networked Blogs.

• Read more by Robert Schlesinger .
• Read more from the Thomas Jefferson Street blog .
• Read more about Washington, D.C.