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The Maryland solution to D.C. voting

ElectionsU.S. CongressThe Washington Post2010 CensusU.S. House of RepresentativesU.S. Senate

This month, Kimberly Perry, the new head of D.C. Vote, acknowledged the fatigue of past efforts to gain federal voting rights for the residents of Washington, D.C., and told The Washington Post, "there's always been the discussion of retrocession [to Maryland] as a possible solution." The possibility of "retrocession" has not gotten much attention, but a carefully crafted bill that permits a "legalistic" and "technical" return of the District to the state from which it was carved, for federal voting purposes alone, is made possible by a recent and largely overlooked Supreme Court case.

Legislation can now be passed and approved in Maryland, D.C. and Congress to establish voting rights equality for D.C. residents, technically through the state of Maryland, but as an independent congressional district for only D.C. residents. Here's how:

After the 2010 Census, West Virginia's legislature decided against a redistricting plan that would have created three districts that were almost precisely equal in population (they varied by only one person) and instead selected a new map that included larger population variations but did a better job of keeping communities unified. A federal court in Charleston, W.Va., had rejected the plan because of the population variance, but on September 26, 2012, in Tennant v. Jefferson County Commission, the Supreme Court approved it, contravening a perceived absolutist approach to the one-person, one-vote doctrine from the 1963 case of Wesberry v. Sanders. The Supreme Court instead based its Tennant decision on its 1983 precedent of Karcher v. Daggett, saying the lower court "failed to afford appropriate deference to West Virginia's reasonable exercise of its political judgment."

In Karcher, the Supreme Court reversed a New Jersey redistricting plan that sought a .8 percent variance for primarily racial purposes, though it noted that situations may exist in which it would approve congressional district variations for necessary, legitimate reasons.

Now, the Supreme Court has gone further in Tennant, which involved a similar .8 percent variance, saying that "given the small size of the deviations, as balanced against ... the lack of available alternatives" the adoption of the new map was "justified by the State's legitimate objectives."

With the Tennant decision in hand, legislation could be crafted that "amends" the Organic Act of 1801 that created the District of Columbia to permit present D.C. residents to vote for representation in their own House of Representatives seat. This would be officially through the State of Maryland as, for those who need a history lesson, all of present D.C. was part of Maryland when the United States was founded. (Such legislation would not need to address the District's lack of representation in the Senate.) Even if challenged, Tennant should permit the Supreme Court to approve a slightly unequal apportionment for Washington residents to have their own Congressional District officially as part of Maryland, but without the District losing any of its existing sovereignty rights. Maryland would have a new Congressional seat, and D.C. would solve its 200-year suffragist conundrum.

The reason the Supreme Court decision is important is that the District's population is slightly smaller than the ideal size for a congressional seat. Based on the United States population, the average congressional district should have about 711,000 people. Maryland's districts currently average almost 722,000 people. The District's population of 632,000 — though larger than many Congressional districts, including all three approved in West Virginia — would make it too small to be its own congressional district in Maryland under a strict one-person, one-vote standard. But under the terms of Tennant, its 12 percent variation should be considered reasonable. That's because the political goal at hand, ending two centuries without voting representation in Congress for District residents, is a compelling and legitimate one.

Retrocession was possible before Tennant — in fact, Congressman Dana Rohrbacher, a California Republican, submitted legislation advocating a limited recession approach for D.C. voting in the current Congress without taking the decision into account. But his bill assumes that it would be necessary for some Maryland voters to be included in the new district, a prospect that makes the legislation less politically tenable.

But now, with the Supreme Court's Tenant decision, a legislative roadmap exists for D.C. residents to vote in upcoming federal elections for Congress by 2014 — and for the nation to correct a 212-year-old legal loophole in the Organic Act that has robbed some of its citizens of federal representation.

Michael Wein lives and works in Greenbelt as an attorney in appeal and trial litigation. His email is weinlaw@hotmail.com.

Copyright © 2014, The Baltimore Sun
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