Litigation Community Discusses Latest D.C. Voting Rights Efforts in Court
May 28, 2021
On May 26 the D.C. Bar Litigation Community hosted a discussion with Walter Smith, executive director of DC Appleseed Center for Law & Justice, on ongoing efforts to secure voting representation for District residents through litigation.
DC Appleseed filed suit in November 2018 arguing that the denial of voting representation for D.C. residents is a violation of their constitutional rights. Filed in D.C. District Court, Castañon v. United States was heard by a panel comprising two District Court judges and one Circuit Court judge; it is currently under appeal in the U.S. Supreme Court.
“The three-judge court is a rare animal, and it’s getting rarer all the time,” Smith said. The odd configuration is also the reason for the case’s right to appeal to the Supreme Court. Three-judge court rulings, required in challenges to the apportionment of seats in Congress, are directly appealable without the normal process of seeking writ of certiorari.
In an unusual concession, the Castañon plaintiffs acknowledge that D.C. residents are not residents of a state and that Article 1, Section 2, of the Constitution provides voting representation to residents of states. These statements outline the basis for the failure of past efforts to litigate the rights of D.C. residents, including Adams v. Clinton. The Supreme Court in 2000 rejected the Adams plaintiffs’ arguments that that the framers did not intend to exclude people living in the nation’s capital in the wording of Article 1, Section 2.
In Castañon, however, the plaintiffs argue that while the Constitution provides for the voting representation of state residents, it does not expressly forbid it for those who are not residents of states. Furthermore, Congress has taken action to secure full voting representation for other groups of citizens who are not residents of states, including former state residents now living overseas and those residing in “federal enclaves,” such as military bases.
The event’s moderator, Hudson Cook, LLP partner Mark E. Rooney, pointed out the irony. “If you live in Ohio and move to D.C., you can no longer vote. But if you live in Ohio and move to Japan, you can still vote,” he said. Rooney offered the example of his friend who had recently moved from New York to Japan and continues to have voting representation in Congress, while Rooney does not.
“We thought we were making an equal protection argument — here are some groups that don’t live in states that get to vote, and here is one group, D.C. residents, who don’t get to vote,” Smith said. However, in Castañon the court has presented another obstacle, choosing to focus on the question of whether Congress is able to grant District residents voting rights at all.
Smith said that it generally has been that the “District Clause” of the Constitution would permit Congress to extend voting representation to District residents. Although the three-judge panel has said that it feels Congress does not have the authority to extend the vote to District residents, falling back on the Article 1, Section 2, provision, it never addressed how Congress has permitted other nonresidents to vote, which Smith said is a significant point in the plaintiffs’ argument on appeal with the Supreme Court.
Smith outlined a number of potential circumstances that might result in the litigation’s success, admitting that even an adverse decision may positively impact efforts toward voting representation in the District.
“I think one of the reasons we don’t have the vote is that the country doesn’t know that we don’t have the vote. If the Supreme Court of the United States decides whether we ought to have the vote, I think it will get a lot of coverage nationwide, and even in a losing effort we will advance the cause,” Smith said.
