By: Evan Tucker

What is the strength of the franchise in America? The franchise is the device by which members of a democracy elect those who govern. The franchise’s strength, thus, is at its strongest when citizens cast votes freely and a candidate is duly elected. Conversely, the franchise is at its weakest when it is adversely affected by some entity, intending to weaken the effect of the franchise (e.g. gerrymandering or substantial changes to election type/voting procedures). The franchise in the District of Columbia is somewhere in between. There, the franchise is not weakened by intentional actions taken by the government, but instead by constitutional defect. Article I, section 8, clause 17 of the U.S. Constitution assigns to Congress the plenary power to legislate in the District. Citizens of the District, however, do not have voting members in either house of Congress. Most recognize this democratic tension as “taxation without representation,” which was one of the basis for America’s split with Britain. But the story is not that simple.

The District has a local government that operates as if it were a state government. Congress authorized such a government structure with the Home Rule Act in 1973. Congress recognized the need for a more proximate governing body, there to be responsive to everyday needs. There are three cognizable branches of government, all confined to the governance of the District. Those in the District vote for members of the council (the legislature) as well as for mayor. Citizens of the District elect individuals who represent their interests and make policy decisions accordingly. The Home Rule Act, however, is in accordance with the Constitution, which states that the final legislating authority belongs to Congress. Thus, Congress reviews all legislation before it becomes law, and Congress retains authority over D.C.’s budget. The question then becomes, why is this a deficient system?

Closer inspection reveals that the constitutional defect, the absence of the election of a true representative, weakens the franchise in the District. There is the absence of true democracy; the constitutionally-recognized decisionmakers (Congress) are not responsible to any “true” electorate. Members of Congress are electorally responsible to the constituents of their respective states, not to the citizens of the District. The essence of democracy is that the power lies with the People. Merriam-Webster defines democracy as “a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.” When those who govern run afoul of the will of the People, the People’s remedy is the franchise. The Constitution denies citizens the ability to remedy any Congressional shortcomings, and thus contravenes the very core of democracy. The franchise fails to operate as an effective device to achieve the ends of democratic government—government by the People, for the People.

What can be done to franchise in the District to ensure full strength? Legislators originally introduced legislation in 2009 and brought up again in 2011 that would give the District voting members in Congress. There were concerns, however, in the Department of Justice concerning the constitutional validity. In November 2016, D.C. residents “overwhelmingly” voted to become the 51st state. Assuming the Congress approved and adopted their petition, there would be great concerns with respect to federalism; the Congress (the federal government in general) has great interest in the security of the seat of the national government there could be conflicts with the policy choices of the State of Columbia’s legislature.

Congress, by constitutional amendment, should give the District voting membership in both houses of Congress. The prospective amendment satisfies two goals: 1) preserve the interests that the Congress maintains in being able to govern its seat; and 2) providing the citizens of the District effective and true representation. In the absence of an amendment, the strength of the franchise in the District stagnates at a level below all others, and the franchise will continue to operate to the effectuation of a pseudo democracy, which is the District’s Council and Mayor. Hugo Black succinctly said this about the franchise in Wesberry v. Sanders: “No right 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. Other rights, even the most basic, are illusory if the right to vote is undermined.”

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