DC Voting Rights

[jimrtex]

I can't see a partial retrocession that kept any of the residential parts of Washington except 1600 Pennsylvania being acceptable politically to anyone.  Even retroceding just Anacostia wouldn't go anywhere.

You don't appear to understand what I am proposing.

By partial, I do not mean part of the district; but rather to convert the District to a federal enclave.

Congress does not have to treat all federal enclaves the same (see Fort Campbell and the two dams).  So they could deny jurisdiction to Maryland over the Columbia enclave, except with respect to voting for senator, congress, and representatives.  The claim that Maryland doesn't want the District back is based on the idea that they don't want to have to take over the public schools, etc.  (ie they especially don't want Anacostia back).

If that's what you mean, its no wonder I misunderstood you for what you propose makes no logical sense. In order for the enclave authority to apply, the United States would have to own all of the real estate in Columbia and Columbia would have to be part of some State.  Neither of those is the case, though it could deal with the former by misusing eminent domain to a staggering extent and acquiring all property in the District that is now already owned by the United States.  Removing the status of Columbia as the Federal District would only give it the status of incorporated territory, not that a federal enclave of a State.

Does all real estate in a federal enclave have to be owned by the federal government?  Ownership of private property in the enclave is possible, correct?  Residents don't become objects of the federal government.

But why can't the federal government permit private ownership of real estate in the vicinity of the needful buildings if maintenance of a buffer zone is of utility to Congress's exercise of its authority, while private ownership of real property is not inimical to the utility of the needful buildings.

Even if Congress were able to do as you suggest, why only Columbia and not use the same shenanigan to give the vote to the residents of Guam, American Samoa, the Northern Marianas, Puerto Rico, and the U.S. Virgin Islands by assigning them to some state whether they want them or not?

Sovereignty over the capital district and incorporated territories (disregarding that there are no incorporated territories at the present time) is held by the United States collectively.  Sovereignty over the five territories you mention is shared by the United States collectively and their residents.

And of course, partial retrocession of the manner I suggested would be effected through a simultaneous retrocession of Congress's capital district authority to Maryland, and a cession by Maryland of federal enclave authority to the United States.

Are you seriously going to argue that Congress should have the authority to add the voters of Puerto Rico to those of Wyoming to elect the Senators from that State? (Or better yet, distribute the voters of Puerto Rico so as to control the Senatorial votes of Wyoming and both Dakotas.) Such an idea is a perversion of the Constitution beyond belief, and I assume that only because you did not considered the potential impact of your idea beyond the question of DC voting rights, were you able to perceive that such an idea might be worthwhile.

I can only assume that you believe that the legislatures of Wyoming, South Dakota, and North Dakota would accept a cession of parts of Puerto Rico so that they would have more electoral votes.

[jimrtex]

Sovereignty over the capital district and incorporated territories (disregarding that there are no incorporated territories at the present time) is held by the United States collectively.  Sovereignty over the five territories you mention is shared by the United States collectively and their residents.

Actually, Palmyra Island is an incorporated territory of the United States.  No one lives there, so there is no organized territorial government, but it is incorporated territory.  I'd also point out that the residents of territories do not enjoy any sovereign rights under the Constitution.  Article IV Section 3 Clause 2 gives that to Congress alone.  Congress has chosen to grant the territories internal self-government, but it need not do so, and has not always done so.  For example Guam was governed by the Navy Department until 1950 and did not elect its own Governor until 1968.

Residents of non-incorporated territories retain some sovereignty under international treaties.

But you asked why I would distinguish from Puerto Rico, Guam, Virgin Islands, Northern Marianas, and American Samoa on the one hand, and the District of Columbia.

And of course, partial retrocession of the manner I suggested would be effected through a simultaneous retrocession of Congress's capital district authority to Maryland, and a cession by Maryland of federal enclave authority to the United States.

Besides the problem above, that the United States does not own title to all of the real estate in Columbia, another problem with your idea is that the Federal government is under no obligation to maintain the status of a Federal enclave as such.  It is free under the Constitution to renounce its authority at any time.  Thus Maryland would have no security against the possibility that a future Congress could choose to renounce enclave status over all or part of Columbia.

The two parties can included conditions in their respective cessions that are binding.

Are you seriously going to argue that Congress should have the authority to add the voters of Puerto Rico to those of Wyoming to elect the Senators from that State? (Or better yet, distribute the voters of Puerto Rico so as to control the Senatorial votes of Wyoming and both Dakotas.) Such an idea is a perversion of the Constitution beyond belief, and I assume that only because you did not considered the potential impact of your idea beyond the question of DC voting rights, were you able to perceive that such an idea might be worthwhile.

I can only assume that you believe that the legislatures of Wyoming, South Dakota, and North Dakota would accept a cession of parts of Puerto Rico so that they would have more electoral votes.

No, I was assuming that you were still talking about a unilateral transfer by Congress of the voters of Columbia to Maryland, without regard to the wishes of Maryland, as the Rohrbacher bill calls for.  I made that assumption because in your variant proposal, I see nothing that would make such an idea any more attractive to Maryland than the Rohrbacher bill.  Indeed, the Rohrbacker bill would if anything be more attractive to Maryland than what you proposed as currently Maryland runs no risk of getting stuck with having to provide for an Anacostia it does not want, while under your proposal it will.  Neither proposal gives Maryland any additional Congressional authority unless it severely gerrymanders Washington City, and 1 electoral vote is hardly worth the risk and bother Maryland would incur.

Since you were responding to a post where I explained that you were misunderstanding my proposal as a partial geographical retrocession as opposed to a partial jurisdictional retrocession, then you should understand that it could not be done unilaterally.  Assuming that you now understand that it could not be done unilaterally, I'll proceed to explain why Maryland would agree.  Maryland could be protected by terms of the agreement between the United States and Maryland from getting stuck with Anacostia.  Part of Maryland would be in one CD, and one other state would lose relative representation, so North Carolina's loss is Maryland's gain.  And it would provide protection from loss of an 8th representative.

[jimrtex]

And of course, partial retrocession of the manner I suggested would be effected through a simultaneous retrocession of Congress's capital district authority to Maryland, and a cession by Maryland of federal enclave authority to the United States.

Besides the problem above, that the United States does not own title to all of the real estate in Columbia, another problem with your idea is that the Federal government is under no obligation to maintain the status of a Federal enclave as such.  It is free under the Constitution to renounce its authority at any time.  Thus Maryland would have no security against the possibility that a future Congress could choose to renounce enclave status over all or part of Columbia.

The two parties can included conditions in their respective cessions that are binding.

Such as a condition that the cession does not occur until the party obtaining the cession has made provision for how it will govern the ceded area itself?

That would be one possibility, of course.  A better example, based on the historical precedents of the cessions/acceptances of 1788-1791 and the 1846 retrocession to Virginia, when the parties agreed to certain conditions being in effect after the territory was ceded.

I'll proceed to explain why Maryland would agree.  Maryland could be protected by terms of the agreement between the United States and Maryland from getting stuck with Anacostia.  Part of Maryland would be in one CD, and one other state would lose relative representation, so North Carolina's loss is Maryland's gain.  And it would provide protection from loss of an 8th representative.

That the size of the House is set at 435 Representatives is custom, not set in the Constitution.  I also strongly doubt that North Carolina would be the State to have the 435th Representative after the next apportionment, so whether the presumably Democratic gain would be offset by a Democratic or Republican loss is not determinable at present.

It is quite likely that the size of the House of Representatives will remain around 435.  Even if it were expanded to 500, the population of Columbia would be about that of the average CD (nationally).  My use of North Carolina was simply to exemplify the shift in representation.  Even if the the HoR were expanded to 437, temporarily, Maryland's 9th seat would be at the expense of some other State (Texas IIRC) which would have the 437th seat under current law.

Maryland's interest would be to secure additional representation without regard to whether or not it was at the expense of North Carolina or Massachusetts, etc.

Unless Maryland gerrymanders Washington City, it won't have really gained a Representative and if does gerrymander Washington City, then the residents thereof won't have gained anything by this convoluted exercise.  Furthermore, if Maryland does any districting plan that keeps all of Washington City in the same district, parts of existing Maryland would need to be added to it in order to keep the districts balanced in size.

Congress has time, place, manner control over congressional elections.  It has established as a requirement the requirement of elections by district in the first place.   The Rohrbacher bill sets specific rules for Columbia (remaining whole if population less than 1 average Maryland+Columbia CD; having one whole CD within Columbia were it not).   Or Congress could establish a more general rule with regard to splitting federal enclaves.

Based on the 2000 Census, 9 Maryland+Columbia districts would have 10,000 fewer residents than 8 Maryland only districts (652K vs. 662K) giving every Marylander better representation.  If Maryland would lose its 8th district at some time (and it is currently gaining population at below the national average), then the difference would be even larger.

Maryland would gain would be one extra electoral vote, but it is a Democratic State and thus the politically, the net effect would be that in any close election, the Democratic candidate would have two fewer EV's.  (It might have the effect of giving the Democrats a few extra EV's during a Republican landslide, as would have happened in 1984 and 1988 had your idea been in effect then, but that is of no political value.)

Maryland's action might well be selfless, knowing that this plan would give full voice to their neighbors in Columbia in all federal elections.  Surely Maryland is capable of rising above such narrow partisan concerns.

Finally, I doubt that the current residents of Columbia would agree to your proposal.  They lose 3 EV's of their own in exchange for a chance of getting a Representative of their own.  They lose all ability to own their own home and instead have to lease it. (Granted, it likely would be a very long term or even a perpetual lease, but it would still be only a lease.)  Plus, they don't get the independent home rule that they aspire to out of this.  (Not that I think that will ever happen, but that doesn't mean they don't want it and that such aspiration would not affect their willingness to agree to this.)  Granted, such a cession need not require a referendum to occur, tho it was done in the case of the Alexandria retrocession.

Since the retrocession of Columbia to Maryland, and re-retrocession to federal enclave status would occur at the same time, there could be language that voids the cessions in case there were a court ruling that prevents private real property within a federal enclave.

[jimrtex]

That would be one possibility, of course.  A better example, based on the historical precedents of the cessions/acceptances of 1788-1791 and the 1846 retrocession to Virginia, when the parties agreed to certain conditions being in effect after the territory was ceded.

And that really is the crux of our dispute.  You see them as being conditions being in effect after the cession, while I see them as conditions required to be satisfied before the cession occurred.

I've already given several examples of people living then who agreed with my viewpoint.  I'll ask again, can you give me any counter-examples of people living at the time of those agreements who held your viewpoint?  Whilst such counter-examples would not settle the question, only indicate that that the question existed then as it does now between us; the lack of any such counter-examples to the examples I have given is a major weakness in your argument.

The Constitution provides a clear procedure by which legislative jurisdiction is transferred.
(1) cession of the particular states;
(2) acceptance of Congress.

During the debate of Congress in 1789 regarding the site on the Susquehanna, James Madison noted that by passing legislation accepting Pennsylvania's cession that there would be no law in the district.  To remedy that, he proposed an amendment that provided that Pennsylvania laws would remain in effect within the district until the United States would provide otherwise.  He did not say that the cession/acceptance would be deferred until that time.  I suspect that James Madison was quite conversant with a contemporary understanding of the Constitution.

In 1790, Congress accepted a cession on the Potomac subject to its location by President Washington.
The acceptance was made by passage of a law that states, "That a district of territory ... is hereby accepted for the permanent seat of the government of the United States"  The legislation then goes on to say, that "nevertheless, operation of the laws of the state within such district shall not be affected by this acceptance".

hereby - that is to say, by passage of this legislation.

accepted for the permanent seat of the government - fulfills the Constitutional requirement that Congress accept the cession, and that the cession be for a purpose permitted by the Constitution.

nevertheless - that is to say, despite the fact that Congress has exclusive legislative jurisdiction.

operation of the laws of the state ... - strange as it might seem, it is an exercise of exclusive legislation jurisdiction to permit operation of state laws within the district.  Congress has done the same with federal enclaves.

Your counter-evidence consists of:

(a) Reily v Lamar, which says that it is not determined when Columbia became extra-territorial to Maryland, and that it was moot with respect to the circumstances of that case.  The fact that Marshall mentions two possible dates, does not preclude a date of 1791.

(b) The ramblings of a fevered Federalist representative in the lame duck 1800 session of Congress, which at the same time was plotting the election of Aaron Burr as President, and had earlier passed the patently unconstitutional Alien&Sedition Acts.

(c) Van Ness, which provides no contradiction to my interpretation.

(d) The retrocession of Alexandria, which supports my interpretation.  It only supports your interpretation if you apply the same construction to the events of 1791 as those of 1846.

How about a simple Constitutional amendment:

(1) The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress shall not be denied or abridged by the United States or any State on account of non-residency in any State.
(2) For purposes of participation in such elections, and apportionment of representatives among the several States, non-resident citizens shall be treated as if they were residents of a State.
(3) Nothing in this amendment shall be so construed as to permit non-residents of any State to participate in the election of State officers, the election of the legislature, or any other elections of any State.  The legistature of a State may provide for former residents of that State who are not residents of any other State to vote in elections of State officers, the election of the legislature, or any other elections of the State.
(4) Nothing in this amendment shall be so construed as to permit Congress to determine or modify the manner by which presidential electors are appointed by any State.
(5) Nothing in this amendment shall be so construed as to affect the election or term of any Representative, Senator, President or Vice President chosen before it becomes valid as part of the Constitution.
(6) The 23rd article of amendment to the Constitution of the United States is hereby repealed.
(7) This article of amendment shall take effect on the first 4th day of January in an odd-numbered year that is more than 365 days following the ratitification of this article.
( 8 ) The Congress shall have power to enforce this article by appropriate legislation.

[jimrtex]

I'm not surprised that you were dismissive of my evidence concerning contemporary opinion, but I am disappointed that you again failed to provide any evidence of your own. You continue to assert your own interpretation of what the founders such as James Madison must have meant by certain phrases rather than provide their own interpretations as given by their own words.  I am arguing that in the context of the 1790s that leaving the law of the ceding State(s) in operation in the Federal cession was understood to mean that the cession itself had not yet occurred as one of the conditions established for both the cession by the State(s) and the acceptance of Congress to occur was that Congress establish laws for the Federal District.  While I would prefer stronger evidence in favor of my opinion as to when cession was held to have occurred by those then living, the fact remains that you have provided no such evidence.

I repeat my request.  Provide some contemporary verbage that is at least as explicit as that in Reily v. Lamar as to opinions then current as to when cession was held to have occurred.

What evidence do you have of that "1790s understanding"?

If there was such an understanding, why would Madison have bothered proposing his amendment (which was adopted).?

[jimrtex]

If there was such an understanding, why would Madison have bothered proposing his amendment (which was adopted).?

We both agree that absent Madison's amendment, then the cession would have occurred upon the agreement of both parties and that there would have been no provision for local law.  That lack of local law was clearly why Madison made his proposal.  What we disagree over is how local law was provided for.

Here is Madison's amendment:

"And provide that nothing herein contained shall be construed to affect the operation of the laws of Pennsylvania, within the district ceded and accepted, until Congress shall otherwise provide by law:"

It is clear that the proviso is to apply upon cession and acceptance - not to delay the effective date of that acceptance.  The exercise of exclusive jurisdiction by Congress within the capital district is a discretionary power, and it is certainly within their power to not exercise it, and to explicitly legislate that they are not exercising it.

You argue that the cession still occurred as it would have absent the added provisos and that those provisos delegated authority to make and enforce local law to the ceding State until such time as Congress chose to make and enforce local law itself.

I argue that those provisos delayed the cession until such time as Congress chose to make and enforce local law itself and that until then the ceding State retained jurisdiction and thus the right to make and enforce local law as a consequence of the territory still being a part of the ceding State.

If that had been Madison's intent, his amendment would have read:

"And provide that nothing herein contained shall be construed to be a cession and acceptance of said distict, until such time as Congress shall provide laws for the district."

The Constitution uses very simple language to denote the instant when the power of exclusive legislation begins (cession and acceptance).  All legislation by Maryland, Virginia, and the United States has used the same construction, both in in the 1788-1791 period, and for the 3 retrocessions to Virginia, beginning in 1846.

Congress had the power to exercise exclusive legislation between 1791 and 1801.  They had that power by virtue of the acceptance in 1791.  The fact that they did not use that power does not mean that it did not exist.

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Where is your proof of this explicit agreement by the parties and the original presiding judge?

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When Congress moved to Washington, they legislated that the seat of government was being moved to Washington, District of Columbia; not Washington, Maryland.

Payne v. Phillips states that the cession of Alexandria occured in 1791.

Read the congressional debate about the Origin Act in 1800-1801.  The debate was not over whether cession had occured, but rather whether Congress should use its power of exclusive jurisdiction; especially given that the previous arrangement had worked.

[jimrtex]

Phillips v, Payne does nothing like you suggest, indeed it strengthens my viewpoint.

How so?

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And lo and behold, when does Phillips v, Payne say Virginia regained Alexandria?

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The plaintiff in Phillips v. Payne had argued that retro-cession by Congress was void because it involved the plebiscate and proclamation by the President.  Rather than examining the de jure issues, the SCOTUS relied on when Virginia took de facto possession by sending in troops and acting as if it were in control, and because the United States did not and had not challenged this takeover.  Of course the reason the United States did not challenge this de facto takeove was because they had already agreed the previous year, subject to a plebiscate whose operation they had delegated to the President.

In other words, the clear implication of Phillips v. Payne is that the retrocession of Alexandria did not occur until Virginia passed the second of its two acts on March 13, 1847 and not as you assert when Polk made his proclamation of the plebiscite results on September 7, 1846.

The court did not determine when retrocession occured.   It determined that it had occured a long time ago.

So as I see it, in Adams v. Clinton, 531 U.S. 941 (2000), the court affirmed (though without issuing a decision of its own) the lower court's opinion that "residents of the area that later became the District remained citizens of their original States (and therefore continued to vote for Representatives from those States) after the legislation effecting the cession and before the effective date of the cession." (emphasis added)

I can't see that quote as anything other than a total refutation of your position that the effective date of the cession was the same as the passage of the legislation that specified what would be the area that became the District.

The lower court's opinion was based on Albaugh v. Tawes, which was in turn based on Reily v. Lamar.

I have never argued that Columbians have a constitutional right to vote, but rather that it is a political decision by Congress.  If Congress had the power to deny the right to vote by passage of the organic act in 1801, they have the authority to restore that right in 2008.

The following is pretty interesting:

[jimrtex]

If, as you assert, it were the view in the 1790's  that the District had already been ceded and that when the Organic Act was passed in 1801 it deprived the citizens of Columbia of privileges to vote in Maryland and Virginia elections that they had possessed for a decade while not being part of Maryland or Virginia, then I find it passing strange that apparently no one in the 19th century debates over retrocession of the district in part or whole ever suggested returning the District to that status you assert it held in the 1790's.

Why so?  People  in Alexandria and Georgetown wanted retrocession for economic reasons.  States were more interested in economic development.  To the extent that Congress had an interest it would toward their districts and States, not some place they visit for a few months a year.

[jimrtex]

It is clear that both political and economic concerns were addressed in those debates.  Witness the repeated suggestions in the first few decades of the Union that the Constitution be amended to allow the District representation in Congress.  Yet they never considered doing as you suggest they had done prior to the passage of the Organic Act.  I can understand why such a solution may not have been the favored solution of most Alexandrians or Georgetowners, but for them to not consider returning their political status to what you assert it was prior to the passage of the Organic Act, strongly suggests that was not how the issue was viewed then.

Between 1791-1801 Columbia had much the same status as it would have had the capital not been moved at all.  Of course at the time of the debate over the Organic Act it was considered continuing the status quo.  Remember that Reily v Lamar had been appealed from a court established by the Organic Act.  Had that court not existed, the case would have been tried in Virginia or Maryland courts, and probably never come to the attention of the US Supreme Court.

But to return to that status (after Columbia had been ceded, but before the Congress had moved from New York, and the Philadelphia) could imply that the capital could or should be moved.   During the next 24 years, the President was from Virginia, who would have preferred the capital not be moved. 

So an argument to return to 1791-1801 status, would be to argue for a return to like things were when Congress met in Philadelphia or elsewhere.  After slavery heated up as in issue it would not have been politically possible to return Washington proper to Maryland law. 

But it was feasible to consider removing areas that were remote from the capital through full retrocession.  In 1791, Congress had forbidden buildings south of the Potomac, and Alexandria is in the extreme southern corner of Washington's square boundaries (about 1/2 of modern Alexandria is outside the square).  And it might have been feasible to retrocede Georgetown and the rest of the area west of Rock Creek, and the rural area east of the Anacosta River (Eastern Branch of the Potomac), and perhaps rural areas to the northeast of Washington as well.

[jimrtex]

All excellent reasons why such a proposal, if it had been made, would have failed.  However they fail to address my point that no such proposal seems to have been made.  Lack of any chance of success politically has never been a barrier to a proposal being made.  If it were, it wouldn't be being made now.

We don't know whether a particular idea was put forward or not in an informal manner.  Given the clear superiority of the alternatives to the situation at the time, they would have been discarded before ever becoming choate in the form of petitions or legislation.

The location of the district was Washington's choice.  Congress even had to amend the 1790 legislation so that his preferred location would be contained in its limits.  Congress itself may have preferred the tri-state site at Connogochegue.  Given the high regard or even reverance for Washington, there would be reluctance to change the district.  As mentioned before, Virginians would hold the presidency for the next 24 years.

If the district were to return to the status it had after cession but before the capital had been moved to Washington, it would bring into question the permanence of the capital.  "How about making the district like it was when Congress met in Philadelphia?", would immediately lead to the suggestion of moving the capital to some location on the Ohio or Mississippi.

But retroceding parts that were not needed for the capital, and had their own separate economic interests did make sense.

I am of course not proposing a return to 1791-1801, but simply pointing out that Congress has broad latitutude in the manner in which it exercises its exclusive legislative jurisdiction.

[jimrtex]

Broad latitude, but not absolute.  Even if your interpretation of what happened in the 1790's were correct, the XIVth Amendment with its definition of State citizenship stands in the way of Congress giving the residents of Columbia voting privileges in Maryland today without a retrocession to Maryland. Unlike as it may choose to do with the federal enclaves, relaxation of Congressional control is not by itself sufficient to rejoin Washington County with Maryland politically.

Under the 'Uniform Federal Uniformed and Overseas Citizens Absentee Voting Act' (UOCAVA) Congress has provided that US citizens residing outside the United States may vote in federal elections in the state where they were formerly domiciled.  Clearly a person who does not reside in the United States is not a resident of a State, and is thus not a State citizen as defined by the 14th Amendment.  Yet States are required to permit such persons to vote as if they were residents of a State.

Under the Votings Rights Act, Congress provided that States may not prevent certain former residents from voting in the elections of their former state of residency, even though those former residents may now reside in States where they are fully qualified to register and vote.

Under the Voting Rights Act, Congress provided that States may not prevent 18 year-old voters from voting in federal elections, even though they were not qualified to vote for members of the larger house of the legislature.

In 1791, Congress provided that residents of the District of Columbia would be treated for all purposes as if they were residents of Maryland or Virginia, depending on which side of the Potomac they resided on.

Congress may provide that residents of the District of Columbia may vote in federal elections in Maryland, or any other State(s) for that matter. 

[jimrtex]

UOCAVA acts under the premise that citizens of the United States who sojourn temporarily outside the United States retain any State citizenship they had previously acquired. However, the residents of Columbia are not outside the United States nor are they in possession of a previously attained State citizenship, so UOCAVA and the principles under which it was enacted do not apply.

The language of UOCAVA is quite clear.  It applies to those who reside outside the United States,  not just those who "sojourn temporarily".  Since you have previously claimed that the 14th Amendment restricts State citizenship to residents of a State, and UOCAVA applies only to those who do not reside in United States, how do you square UOCAVA with your understanding of the Constitution?

If UOCAVA confers a continuation of State citizenship, why does it not apply to state elections, particularly to those electing the members of the legislative body with more members?   And why don't UOCAVA voters (indeed all persons, including aliens) remain under the jurisdiction of their former State of residence if they remove themselves outside the United States.

In Romeu v. Cohen, 265 F.3d 118 (2d Cir. 2001), the court ruled that Congress had the discretion to make a distinction between (former?) New York citizens who sojourned in San Juan, Puerto Rico and those who resided in Rome, Italy.  But a 2-1 majority of the court also offered the suggestion that it was in congressional authority to provide a way for US Citizens in Puerto Rico to participate in elections for President regardless whether they formerly resided in one of the 51 jurisdictions that choose presidential electors.

As for the Voting Rights Act Amendments of 1970 which you bring up, I think that Oregon v. Mitchell was wrongly decided and that Harlan, as usual for that period of the court, had the correct opinion.  Still, even if one accepts Oregon v. Mitchell as correctly decided, I fail to see how asserting that Congress can make decisions concerning how long a residency is required to establish State citizenship and the circumstances under which an absence disestablishes State citizenship establishes that Congress has the power to make persons who have never been State citizens or residents into citizens of a State.

On the issue of residency requirements, Oregon v. Mitchell was an 8-1 decision.  The VRA does not suggest that someone who has moved to a different State remains a citizen of their former State for some period of time.  If you read the Stewart opinion in Oregon v. Mitchell you will see that it was acceptable to the court for reasons of preserving the right to vote in national elections by United States citizens, and not that of citizens of the several States.

[quote author=Lamont Zemyna Vaižgantas link=topic=1407.msg1459947#msg1459947
The Federal and State acts that provided in 1790 and 1791 for the eventual cession of Columbia made no explicit provision for the continuation of the right to vote in Virginia and Maryland elections.  The Organic Act of 1801 made no explicit provision for the removal of the right to vote in Virginia and Maryland elections.  Yet you agree that the passage of the Organic Act stripped the residents of Columbia of their right to vote in State elections.  I explain that loss of suffrage as a consequence of the cession taking place upon the passage of the Organic Act.  How do you explain that happening? What provision of the Organic Act do you hold as having caused that change in status?
[/quote]
Under the 1791 legislation accepting cession of Columbia, Congress apparently felt no need to make explicit provision for continuation of the right to vote in Virginia and Maryland elections.  And indeed, there was no need to do so, since residents of the district continued to vote in federal and state elections.  In 1800, Maryland stopped providing government for the district, and Congress acquiesced.  Under the Organic Act, Congress froze Maryland law as of February 27, 1801 which would preclude Maryland from making provisions for future elections.  For example, Maryland changed its electoral districts for presidential elections for the 1804 election, the first held after passage of the Organic Act.

The denial of the right to vote was not an act of deliberation, but rather one of carelessness and omission.

[jimrtex]

UOCAVA acts under the premise that citizens of the United States who sojourn temporarily outside the United States retain any State citizenship they had previously acquired. However, the residents of Columbia are not outside the United States nor are they in possession of a previously attained State citizenship, so UOCAVA and the principles under which it was enacted do not apply.

The language of UOCAVA is quite clear.  It applies to those who reside outside the United States,  not just those who "sojourn temporarily".  Since you have previously claimed that the 14th Amendment restricts State citizenship to residents of a State, and UOCAVA applies only to those who do not reside in United States, how do you square UOCAVA with your understanding of the Constitution?

Since they haven't renounced their U.S. citizenship, their sojourn overseas is considered only temporary.  It might be a long temporary, but it is still temporary even if it lasts years.

Who claimed that it applied to those who had renounced their US citizenship?  Strawman.

"sojourn" is defined as residing briefly or temporarily.  Congress could have set a time period, and they could have inquired as intent to return to the former State of residence.  They did neither.  Therefore, a United States citizen who "does not reside in the United States" does not reside in any State, and is not a State citizen under the 14th Amendment.  No inference can be made about their intent to move to the United States, whether to a former State of residence, and different State, Columbia, or some other territory of the United States.

Since the persons are not State citizens, then the only reason that they can vote in federal elections for a State is by virtue of their United States citizenship, and a political decision by Congress to permit them to vote.

If UOCAVA confers a continuation of State citizenship, why does it not apply to state elections, particularly to those electing the members of the legislative body with more members?   And why don't UOCAVA voters (indeed all persons, including aliens) remain under the jurisdiction of their former State of residence if they remove themselves outside the United States.

States are free to do so, and some do but are not required to by UOCAVA.  I imagine that the reason that no Federal mandate was required was primarily because providing for the various offices that States choose to have elected, even if one restricted the Federal mandate to just statewide offices, would make the Federal write-in absentee ballot required by UOCAVA to be accepted by all States as the primary means of compliance an unwieldy mess.

States are free to exclude some of their citizens from voting in their legislative elections based on where that person resides?  Or may they only exclude United States citizens who were former residents on the basis that they do not reside in the State, and are therefore not citizens of the State?

In Romeu v. Cohen, 265 F.3d 118 (2d Cir. 2001), the court ruled that Congress had the discretion to make a distinction between (former?) New York citizens who sojourned in San Juan, Puerto Rico and those who resided in Rome, Italy.  But a 2-1 majority of the court also offered the suggestion that it was in congressional authority to provide a way for US Citizens in Puerto Rico to participate in elections for President regardless whether they formerly resided in one of the 51 jurisdictions that choose presidential electors.

That's not the case.  Leval made his suggestion by himself, with Walker strongly opposed while Oakes was silent on the case.  In any case it had no bearing on the decision, and Leval's suggestion is pure obiter dictum.

How come Leval wrote the court's opinion.  Since Walker was the chief judge and disagree vigorously with Leval, why not have Oakes write the courts opinion, and he and Walker write their own concurring opinions.

In any case, it is clear that Leval saw no impediment to Congress extending voting rights in at least presidential elections to all United States citizens.  IIUC, it was only due to the technical logistics of his particular scheme, that it would not be feasible for congressional elections.

On the issue of residency requirements, Oregon v. Mitchell was an 8-1 decision.  The VRA does not suggest that someone who has moved to a different State remains a citizen of their former State for some period of time.  If you read the Stewart opinion in Oregon v. Mitchell you will see that it was acceptable to the court for reasons of preserving the right to vote in national elections by United States citizens, and not that of citizens of the several States.

And in doing so, Stewart expressed the opinion that it was precisely because Congress had the authority to preserve the right to vote in national elections by United States citizens who already had that right had they not moved that Congress could restrict the period of residency State laws required to effect a change in State citizenship and thereby of voting rights in that State, as well as the state they had moved out of if the move occurred too close to election day.  Indeed, Stewart stated that "The power that Congress has exercised in enacting § 202 is not a general power to prescribe qualifications for voters in either federal or state elections. It is confined to federal action against a particular problem clearly within the purview of congressional authority."

Not only that, but the opinions of Douglas and Brennan, in so far as they pertain to residency requirements, cite the equal protection provisions of the Fourteenth Amendment, again making reference thereby to State citizenship as the core issue.  Indeed, of the nine justices in Oregon v. Mitchell, only Black based his argument concerning the residency requirements in Federal elections on an broad power of Congress to set the qualifications of voters in Federal elections.  The other eight justices rejected that argument, and it is that broad power that was rejected 8-1 in Oregon v. Mitchell that would be needed for Congress to require that States allow persons who have no connection to a State the right to vote in elections conducted by that State, as would be the case if Congress were to require that Columbia residents with no prior Maryland connection be allowed to vote in Federal elections as if they were Maryland residents.

This is the syllabus for Douglas's opinion:

4. The right to vote in national elections is a privilege and immunity of national citizenship and the congressional judgment to ban durational residency requirements in presidential and vice-presidential elections is a manifestly permissible means of enforcing that privilege and immunity under 5 of the Fourteenth Amendment.

I see the reference to State citizenship where?

And here is Brennan's:

4. There is adequate constitutional basis for the residency provisions of the Act in 5 of the Fourteenth Amendment, as there is ample justification for the congressional findings that durational residence requirements abridge the right of free interstate migration and that such requirements are not reasonably related to any compelling state interests.

This doesn't sound like someone who would reject a Congressional grant of Maryland political citizenship to Columbia residents.

The denial of the right to vote was not an act of deliberation, but rather one of carelessness and omission.

Carelessness and omission?  It is quite apparent from the historical record that the impact of Congress taking jurisdiction upon the voting rights of those living in the District was well understood and indeed, it was used as an argument against Congress taking jurisdiction.  Clearly they understood what they were doing then and they did it with deliberation.

They debated it for a while, when the Federalist took a break from plotting the election of Aaron Burr or passing the Alien & Sedition Acts.  They understood that they were denying Maryland jurisdiction over the District.  They were careless whether it had an impact on citizens who resided within the district.

[jimrtex]

Who claimed that it applied to those who had renounced their US citizenship?  Strawman.

"sojourn" is defined as residing briefly or temporarily.  Congress could have set a time period, and they could have inquired as intent to return to the former State of residence.  They did neither.  Therefore, a United States citizen who "does not reside in the United States" does not reside in any State, and is not a State citizen under the 14th Amendment.  No inference can be made about their intent to move to the United States, whether to a former State of residence, and different State, Columbia, or some other territory of the United States.

Since the persons are not State citizens, then the only reason that they can vote in federal elections for a State is by virtue of their United States citizenship, and a political decision by Congress to permit them to vote.

Why do you claim that it applies to those who had renounced their State citizenship?

You were the one who introduced the strawman argument of renunciation of United States citizenship.
So the question should be why you introduced a strawman argument?

You are are the one who is claiming that by virtue of the 14th Amendment, a person who is a State citizen loses that State citizenship by changing his residence to a location outside the State.

For persons who have not established residence in another State, the Constitution is silent as to whether such citizenship is lost.  However under the principles of Afroyim v. Rusk, 387 U.S. 253 (1967) and Vance v. Terrazas, 444 U.S. 252 (1980) it is clear that loss of State citizenship requires a positive act by that person and that under the 14th Amendment, the only positive Acts mentioned there are renouncing United States citizenship or establishing residence in another State.  The political decision that Congress has taken here to has been to rule that establishing residence in a territory of the United States is a positive act that removes State citizenship while establishing residence outside the United States does not.

If we were going to apply the principles of Afryom v Rusk or Vance v. Terrazas, then someone who moves from Maryland to Columbia could retain Maryland citizenship while acquiring Columbia citizenship.  The 14th Amendment says that a US citizen who is resident of Indiana is a Indiana citizen.  It does not say that he is not an Illinois citizen.

If UOCAVA confers a continuation of State citizenship, why does it not apply to state elections, particularly to those electing the members of the legislative body with more members?   And why don't UOCAVA voters (indeed all persons, including aliens) remain under the jurisdiction of their former State of residence if they remove themselves outside the United States.

States are free to do so, and some do but are not required to by UOCAVA.  I imagine that the reason that no Federal mandate was required was primarily because providing for the various offices that States choose to have elected, even if one restricted the Federal mandate to just statewide offices, would make the Federal write-in absentee ballot required by UOCAVA to be accepted by all States as the primary means of compliance an unwieldy mess.

States are free to exclude some of their citizens from voting in their legislative elections based on where that person resides?  Or may they only exclude United States citizens who were former residents on the basis that they do not reside in the State, and are therefore not citizens of the State?

Absentee balloting, especially overseas absentee balloting requires extra effort on the part of the body conducting the election.  Congress has made the political decision that the level accommodation it requires States to provide to its overseas citizens under UOCAVA under the circumstances is appropriate.  It would be within the power of Congress under the 14th Amendment to require less or more of the States with respect to absentee voting provisions of State citizens.

So now you are are claiming that UOCAVA is acting on the basis of United States citizenship, and not on the basis of State citizenship?  Or perhaps that only Congress has the authority to enforce the 14th Amendment?  Or that Congress can make non-residents of a State a citizen of a State, but in this case State citizenship does not confer a right to equal protection?

The whole of the Fourteen Amendment deals with citizenship both State and United States.  On further review, I'll concede that Douglas went with an opinion based on U.S. citizenship, so make that a 7-2 to a 8-1 opinion against your position.  Brennan's opinion is that durational residency requirements for establishing State citizenship violate the abridge the right of free interstate migration and that such requirements are not reasonably related to any compelling state interests. so my point there still stands.

The important issue with regard to Columbia is not the durational residency requirements for establishing voting rights, but rather the continued provision of voting privileges in a State of former residence.

As soon as one establishes a new residence in a State, one becomes a State citizen of that State.  Curbing durational residency requirement is simply protecting one's right to change their State citizenship freely through migration.

But in the case of retention of voting priveleges in State A after one has already established residence in State B, must be on the basis of United States citizenship.

[jimrtex]

While for persons who move from one State to another State, the effect of both what I claim and what you claim I have claimed is the same, because dual citizenship at the State level has not been recognized as a right.  However for persons who move outside the United States, it is not.

So United States citizens who reside in Maryland and are therefore Maryland citizens, remain Maryland citizens if they move to the District of Columbia?

If we were going to apply the principles of Afryom v Rusk or Vance v. Terrazas, then someone who moves from Maryland to Columbia could retain Maryland citizenship while acquiring Columbia citizenship.  The 14th Amendment says that a US citizen who is a resident of Indiana is a Indiana citizen.  It does not say that he is not an Illinois citizen.

Illinois could choose to grant an Indiana resident dual citizenship, but nothing in the 14th Amendment compels it to grant that Indiana resident dual citizenship, nor does Congress have the power to compel Illinois to so grant because both Illinois and Indiana are States.  Congress could choose to require that a State citizen who takes residence in the District or some other territory be allowed to maintain their State citizenship, but instead it has chosen to provide Territorial citizenship, which it holds as having equivalent status to State citizenship.

Since no one is required to live in the District or in a Territory, I don't see any denial of equal protection here.

So it is prerogative of Congress to grant "Territorial citizenship" or "State citizenship" to US Citizens who reside outside a State?

So now you are are claiming that UOCAVA is acting on the basis of United States citizenship, and not on the basis of State citizenship?  Or perhaps that only Congress has the authority to enforce the 14th Amendment?  Or that Congress can make non-residents of a State a citizen of a State, but in this case State citizenship does not confer a right to equal protection?

No, that as is often the case when conflicting interests arise, a judgment must be made as to which interests are more important.  In this case, Congress, as its right under the 14th amendment, has judged which accommodations States must provide to those of its citizens who are temporarily outside the State and thus would suffer inconvenience if they were to have to return to that State to vote.

If someone moves from Maryland to Virginia, they are not temporarily outside Maryland, but inside Virginia.  This is true even if they work in Maryland, shop in Maryland, and spend a majority of their time in Maryland.  And the same is true if they were to reside in France.

The rule that Congress chose (where one would be qualified to vote but for extra-USA residence) is simply one that they have chosen.  They could have chosen the closest State, so that most US Citizens resident in Europe might vote in Maine, those in Canada would vote in the State to the south, etc.  Or they might have let the US Citizen choose their State for voting purposes.

The important issue with regard to Columbia is not the durational residency requirements for establishing voting rights, but rather the continued provision of voting privileges in a State of former residence.

But in the case of retention of voting privileges in State A after one has already established residence in State B, must be on the basis of United States citizenship.

And how long a residence must occur in another location for that residence to be established and thereby a new State citizenship to be established?  The Fourteenth Amendment is silent on that durational issue.  Congress has chosen to make 30 days a uniform cutoff.

Since from the perspective of their former State of residence, they are temporarily sojourners in their new State of residence, couldn't Congress make the cutoff indefinite?