The DC voting rights bill is dead, and the unique situation that made a compromise possible is evaporating. But this seemingly devastating setback may be an opportunity to pursue a real solution for a problem the Founding Fathers never foresaw: that some citizens might live in territories so small that they will never be deemed eligible for statehood. To fix this, we need a Constitutional amendment to address all territories, not just DC.
Let’s not mourn the loss of this bill too deeply. While getting representation in the House would given residents some representation in the government, it was at best a fragment of a solution that would still leave DC residents as lesser citizens. It isn’t even clear the law would have withstood the constitutional challenge that was sure to follow.
Even with House representation, DC residents would still have lacked representation in the Senate and the right to vote for or against amendments to the Constitution or vote in any contingent elections.
Neither of the other popular solutions, statehood or retrocession to Maryland, seems remotely likely. DC is probably just too small (and too heavily Democratic) to be a state in the opinion of many Americans. Maryland is unwilling to take on DC and DC residents are not eager to suddenly become residents of Maryland. Additionally, there are some who believe that both statehood and retrocession violate the District Clause of the Constitution. Finally, even if one of those solutions could make it through the vast political challenges and the legal challenges, it would still be incomplete. That’s because the problem is larger than DC.
The problem is not that DC doesn’t have a House member, it’s that five million American citizens don’t have the voice in their government that residency in a state provides. While the District is unique when compared with other territories in which disenfranchised Americans live, it is not unique in the nature of its situation.
DC Voting Rights activists should work with the residents of Puerto Rico, Guam, the U.S. Virgin Islands and the Northern Mariana Islands (CNMI) (and even American Samoa whose residents are not citizens but rather Nationals. Despite that, they do have a stake in this if they ever aspire to full citizenship) to create a lasting, flexible solution.
We need a Territorial Representation Amendment. The amendment as I see it would read like this:
Section 1: Congress may designate any Territory, Commonwealth or District of the United States, or a combination thereof, as a Represented Territory; or add such to an existing Represented Territory, so long as there is no more than one Represented Territory that is less populous than the least populous State at the time of its designation.
Section 2: For purposes of representation in the House of Representatives, each Represented Territory shall be treated as though it were a State.
Section 3: If there is at least one Represented Territory as designated under section 1, then for purposes of representation in the Senate, and election of the President and Vice President, the combination of all Represented Territories shall be treated as though it were a State.
Section 4: For purposes of article V of this Constitution when the mode of ratification is by state legislatures, the combination of all Represented Territories shall count as one State and use a convention where each Represented Territory is represented proportionally.
Section 5: The twenty-third article of amendment to the Constitution of the United States is hereby repealed.
This amendment would enable Congress to grant all U.S. Citizens full representation without having to make tiny Guam into it’s own state. And the result would have the combined benefits of upholding America’s value for representative democracy, without any question of constitutionality, while being more politically palatable than the other courses of action.
If it were ratified, the U.S. would likely end up with three Represented Territories. One for DC, one for Puerto Rico and one for all of the rest. DC would get one house member, Puerto Rico would get six, and the other territories would share one. All of these areas would vote for the same two Senators, both of whom would likely come from the larger Puerto Rico. The electoral college votes could be divided up using the Congressional District or proportional vote method.
The amendment would be more politically viable because it comes with greater political parity and would include many new allies. In Puerto Rico, both parties are competitive. Their Governor is Republican, but their delegate is Democratic. The other territories are more mixed — the Commonwealth of the Northern Marianas Islands is heavily Republican, for example — so this would not create two de facto Senate seats for the Democratic Party, as adding DC by itself would.
Additionally, it would result in a net loss for the District in the Electoral College, where they’re overrepresented anyway, making the law more appealing to strategy-minded Republicans. Parity has been a key part of adding new states and is the reason they were often admitted as pairs. Furthermore, Puerto Ricans and other islanders become natural allies to the cause and can supplement the national organization needed to ratify an amendment in 38 legislatures in seven years.
While the idea of having two Senators who are likely from Puerto Rico might not seem appealing to DC residents, it is structurally no different than having two Senators, both of whom are from Maryland, as would happen in retrocession. And DC would still make up one eighth of the combined Representative Territories (CRT) which would make it foolish for office seekers to ignore. Furthermore, if Puerto Rico ever obtains statehood or independence, DC would find itself the largest piece of the CRT.
The CRT would be able to ratify amendments by electing representatives to a Territorial Convention and would be able to vote as one state in the rare event that there is another Contingent Election.
Such an amendment would not only make residents of the Nation’s Capital full citizens, but it could, once and for all, correct the unseemly problem of having any citizens, in a country that prides itself on its democratic principals, who are not allowed representation — and have no reasonable chance of getting it — solely because of which part of the country they live in.