D.C. GETS DAY IN COURT FOR FULL VOTING RIGHTS
By Bill Miller, Washington Post Staff Writer, Tuesday , April 20, 1999 ; Page B01

For decades, scores of public officials -- and some of the District's most ardent champions of home rule -- have struggled in hopes of winning for D.C. residents a vote in Congress.

After failing to achieve their goal through the political process, they turned to the courts yesterday for what they hope will be a landmark voting rights decision.

"I don't think you or I will ever participate in a case where the stakes are higher than this one," John M. Ferren, the District's corporation counsel, told a special three-judge panel. "When you stand back and think about it, we are talking about the most precious and fundamental right anyone can have."

Ferren was among a battery of lawyers who recapped more than 200 years of history during nearly four hours of spirited arguments. Two separate groups of D.C. activists filed suits against the United States last year over the right to cast ballots in national elections, and both cases were heard yesterday.

The framers of the Constitution, Ferren said, would be "astonished" to learn that "500,000 people today in our nation's capital are not voting."

D.C. residents are the only U.S. citizens on the American mainland without a vote on Capitol Hill. That, according to Ferren and other advocates, violates their constitutional right to participate in democracy. "It's a very simple argument," he told the judges. "It's a national right to citizenship."

Justice Department lawyers, who handled the case on behalf of the Clinton administration, pointed to language in the Constitution that calls for the election of representatives by people from the "states." Because the District is not a state, said lawyer John R. Tyler, the "unavoidable conclusion" is that people in the District do not have the right to choose representatives and senators. Tyler's argument harked back to 1801, when Virginia and Maryland gave up land for the creation of a federal seat of government.

Before 1801, people living in the area that became the District were able to vote in national elections in Maryland and Virginia. One section of the District was returned to Virginia in 1847, but people in the rest of the District have been shut out of a say in Congress. Congress passed a constitutional amendment in 1960, which was ratified a year later, that gave citizens in the District the right to vote in presidential elections. The District has an elected delegate to Congress, Eleanor Holmes Norton, who may vote in committee but not on the House floor. Ferren argued yesterday that the framers never intended to leave District voters without elected representation.

The two lawsuits seek to right what they contend are historical wrongs.

One lawsuit, Adams et al. v. Clinton et al., wants the court to make it possible for D.C. residents to choose statehood or unite with another state, in the process providing for voting rights. The other lawsuit, Alexander et al. v. Daley et al., wants the court to order Congress to find a way to let D.C. residents elect full senators and representatives.

The Adams complaint is being pushed by a coalition of activists led by Takoma Park lawyer George S. LaRoche. The District government joined 57 other residents in filing the Alexander lawsuit. The plaintiffs include a cross section of Washington business, community and political leaders, such as former mayor Walter Washington, civil rights leader Dorothy Height and businessman John Hechinger, who was the first D.C. Council chairman. Ferren is aided in that case by Charles A. Miller and other lawyers from the firm of Covington & Burling and by Jamin Raskin, an American University law professor.

Height and Hechinger were in the audience yesterday, along with Norton, former mayor Marion Barry, banker and activist Lloyd Smith, statehood advocate Sam Smith, George Washington University President Stephen Joel Trachtenberg, financial control board Vice Chairman Constance B. Newman, D.C. Council Chairman Linda Cropp and numerous other council members. Mayor Anthony A. Williams showed up before the hearing to lend support but left before arguments began. The session took place in the biggest room of the federal courthouse, which seats more than 300 people. Still, dozens had to be turned away.

The matter was heard by a special panel comprising Judges Louis F. Oberdorfer and Colleen Kollar-Kotelly, both of U.S. District Court, and Merrick B. Garland, of the the U.S. Court of Appeals for the D.C. Circuit. The decision by the three judges can be taken directly to the U.S. Supreme Court, shortening the time it would take to come up with a final determination. The judges gave no time frame yesterday for their ruling.

The judges peppered the Justice Department lawyers with questions, particularly about why District residents are not permitted to vote when those who live on military bases and on the grounds of other federal enclaves can do so. The Justice Department argued that the District has a special status.

Lawyers representing D.C. residents were questioned most extensively about what steps could be taken in the event they prevail. Ferren said he believed the answer could come later, with the District either getting its own senators and representative or joining in elections now held in Maryland.

The arguments capped Ferren's two-year career as the District's top lawyer. Yesterday was his last day on that job. He plans to return to the D.C. Court of Appeals, where he was a judge for nearly 20 years. He called the voting rights case "by far the most important" he handled as the corporation counsel.