DC - Utah Unconstitutional

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Senate panel OKs bill giving Utah a 4th House seat

By Lee Davidson
Deseret News

Published: February 12, 2009

Despite opposition from Sen. John McCain, last year's GOP presidential nominee, a Senate committee voted 11-1 Wednesday to endorse a bill to give the heavily Democratic District of Columbia a U.S. House seat — and give heavily Republican Utah a fourth House seat as a political counterweight.

McCain's main opposition, as the bill was debated by the Senate Homeland Security and Governmental Affairs Committee, was including Utah as a political counterweight to D.C.

"I don't like the deal, and I think that it's unconstitutional," McCain, R-Ariz., said. He said Arizona and other states besides Utah felt they were undercounted in the last Census and probably deserved another seat, "So why Utah should be selected to have an additional seat for a couple of years … seems to me patently unfair to other high-growth states."

He added, "I think it would be much more clear for the American people if we voted up or down for representation for the District of Columbia," and did not include Utah.

Committee Chairman Joe Lieberman, I-Conn., who is the Senate sponsor of the bill, explained that adding Utah was a political compromise reached in recent years to seek support to give D.C. a House seat by finding a way not to upset the existing political balance in the House.

"Utah missed the next seat by less than any other state" (just 80 people) after the 2000 Census, Lieberman said.

He noted Utah also sued then "because the Census did not count Mormon citizens of Utah who were on missions serving around the world. So in a sense you might say this was a bipartisan political compromise in the House to pass this, but it did have some substance to it … to correct a problem from the last Census."

But McCain said, "The actual numbers may have shown that Utah came close to it, but we have a large Mormon community in Arizona and also have citizens on missions, but we felt that we were vastly undercounted, and so did other high-growth states."

The main focus of the bill is to give D.C. a full vote in the House. Some argue the Constitution allows House seats only for states, and that D.C. is not a state. Among such critics is Rep. Jason Chaffetz, R-Utah.

But Lieberman presented letters from dozens of legal scholars, including Attorney General Eric Holder and former Solicitor General Kenneth Starr, saying it is constitutional, and that courts have allowed D.C. residents to have such things as interstate commerce and trial by jury even though the Constitution gives rights only to residents of states. Sen. Orrin Hatch, R-Utah, is among scholars who hold that view.

Sen. Susan Collins, R-Maine, the ranking Republican on the committee, said she feels whether the bill is constitutional is "a close call," but noted it requires the Supreme Court to give it expedited review if it is challenged to finally resolve the question — so she supports it.

McCain said, "I would never operate on the premise (of) let's pass it and find out if it's constitutional or not. That's not been the way I have shaped my political philosophy."

Sen. George Voinovich, R-Ohio, said he favors the bill because of an experience he had hosting foreign diplomats. "It's very difficult to explain to people from other parts of the world that in the District, where our government is located, the people are denied representation in the House."

Sen. Roland Burris, D-Ill., just appointed to replace Barack Obama, said when he was in law school in Washington in 1960 he remembers D.C. residents then pushing for votes in Congress. "It's about time we get some representation for the District of Columbia some 50 years later."

The bill now goes to the full Senate for consideration. It died there in the last Congress because Democrats were three votes short of the number required to break a Republican filibuster against it. But because of Democratic gains in the last election, Democrats said they are sure they have the needed votes now. "We believe this is the year," Lieberman said.

The House Judiciary Committee held a hearing on a House version of the bill last month. Of note, House Majority Leader Steny Hoyer warned there that Utah could be taken out of the bill, if it becomes a drag on the overall package, because Democratic majorities are so big that Utah's inclusion is not needed to help attract Republican votes.

House and Senate versions have key differences. The House version would create the new seats immediately upon passage, while the Senate version would not create them until the 2010 elections. The House version would require Utah to elect an at-large seat (allowing Utahns to vote for two House members, which Hatch says is unconstitutional). The Senate version would call for Utah to redraw boundaries for four House districts.

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