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IN THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Lois E. Adams, et al,
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Plaintiffs,
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versus
| Civil Action No: 98-1665 (LFO, MBG, CKK)
William Jefferson Clinton, et al, |
Defendants
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RESPONSE OF TWENTY CITIZENS, PLAINTIFFS IN ADAMS V. CLINTON,
TO MEMORANDUM OF
THE COMMITTEE FOR THE CAPITAL CITY, AMICUS CURIAE
The Committee for the Capital City ("Committee") has filed a
Memorandum as Amicus Curiae, purporting to support the Motions for Summary Judgment filed
by Plaintiffs in both cases before the Court. Actually, however, the Committee supports a
remedy proposed by the Plaintiffs in Alexander v. Daley, which is wholly antithetical to
the claims and principles at issue in Adams v. Clinton.
The Committee argues that the Court should apply what the Committee
calls the "Enclave Solution" to remedy the injuries of the citizens of the
District of Columbia (pages 4-21). Under this "solution," the Court would
"order that the votes of District residents be counted with the Maryland totals for
purposes of elections to the U.S. Senate and U.S. House of Representatives" (page
19), even though the District would not be part of the State of Maryland. The Committee's
"solution" is based on the proposition that "all persons who live on
[federal] enclaves vote as citizens of the state from which the enclave was carved"
(page 6 (emphasis changed)). The same proposition is reflected in the Committee's
statement that "[t]he only reason [the residents of the District of Columbia] do not
enjoy [political] rights today is that they are not treated as citizens of a state"
(page 21 (emphasis changed)). But since these propositions are not accurate statements of
the situation of the federal enclaves or the District, the Committee's
"solution" would violate the rights of the citizens of the District of Columbia
to equal protection of the laws and to republican forms of government.
For almost three decades (ever since Evans v. Cornman, 398 U.S. 419
(1970)), the residents of the federal enclaves have not merely been "treated as
if" they were citizens of the States; they have become citizens of the States. In
none of the situations to which the Committee refers (page 21)--Indian reservations,
military bases, Federal parks, Americans living overseas--are the residents entitled to
vote for members of Congress by virtue of a unique Congressional (or judicial) fiat, while
remaining deprived of rights equivalent to those of all other citizens of their States to
vote for State government, to run for State or federal office, and to have some degree of
autonomy to decide local issues in union with all the citizens of the State in which they
live or call "home." See Winton v. Amos, 255 U.S. 373 (1921), and United States
v. Nice, 241 U.S. 591 (1916) (Indians are citizens of the States under the Fourteenth
Amendment); Montoya v. Bolack, 70 N.M. 196, 372 P.2d 387 (1962), and Harrison v. Laveen,
67 Ariz. 337, 196 P.2d 456 (1948) (Indians are entitled to vote as state citizens); Twenty
Citizens' Memorandum in Support of Summary Judgment at 37-47, 52-54 (on federal enclaves);
Response of Twenty Citizens to Memorandum of Eleven Law Professors at 2-5, discussing 42
U.S.C. 1973ff, et seq. (providing absentee voting procedures for State citizens
living overseas or outside their home States), which "limits a state's ability to
restrict" the right to vote, de la Rosa v. United States, 32 F.3d 8, 10 n.2 (1st.
Cir. 1994), cert. denied, 514 U.S. 1049 (1995). While many jurisdictional questions still
make life on a federal enclave difficult for some of the residents and while the residents
of some federal enclaves still suffer from a failure to devise a coherent, nationwide
policy for dealing with federal-state relations, see, e.g., Stephen E. Castlen &
Gregory O. Block, Exclusive Federal Legislative Jurisdiction: Get Rid of It!, 154 Mil. L.
Rev. 113 (1997); Michael J. Malinowski, Federal Enclaves and Local Law: Carving Out a
Domestic Violence Exception to Exclusive Legislative Jurisdiction, 100 Yale L.J. 189
(1990), there is no known instance [footnote 1: While it's impossible to "prove"
a negative, in the time undersigned counsel has studied the federal enclaves and in
conversations with the authors of articles on the federal enclaves and with others having
responsibility for enclaves, he has discovered no instance contrary to the proposition.]
in which residents of a federal enclave are treated under law as anything less than full
citizens of a State, for the exercise of all political rights such as voting for
representation in Congress and in State governments. [footnote 2: A resident of a federal
enclave can choose either the State in which the enclave is physically located or another
"home" State as the resident's domicile State for voting and all other
citizenship purposes. See 42 U.S.C. 1973ff, et seq. & 50 U.S.C. App. 574.]
In other words, the "solution" proposed by the Committee (an
"order that the votes of District residents be counted with the Maryland totals for
purposes of elections to the U.S. Senate and U.S. House of Representatives") has not
been imposed on the federal enclaves or on any other places subject to the exclusive
jurisdiction of Congress. A legislative or judicial concession to share in Maryland's
franchise would not replicate the treatment of the federal enclaves, because the residents
of the federal enclaves in Maryland are citizens of Maryland (or another State, if they
choose). See Twenty Citizens' Memorandum in Support of Summary Judgment at 37-47.
There is no "Enclave Solution," short of complete political
incorporation of the District of Columbia into the State of Maryland (retrocession). But
while retrocession of the District of Columbia with Maryland could remedy the claims at
issue in Adams v. Clinton, it would only do so if that "solution" were the
expressed determination of the citizens of the District and of Maryland. Thus, if the
Court follows the Committee's advice and "order[s] that the votes of District
residents be counted with the Maryland totals for purposes of elections to the U.S. Senate
and U.S. House of Representatives," the Court not only would have exceeded its
jurisdiction--i.e., by addressing a political question: what the political status of the
District should be or is, see de la Rosa v. U.S., 842 F.Supp. 607, 610 (D.P.R.), aff'd, 32
F.3d 8 (1st. Cir. 1994), cert. denied, 514 U.S. 1049 (1995) ( "In seeking to have
Puerto Rico recognized as a 'de facto state,' plaintiffs seek to thrust the Court into a
decision the Constitution specifically entrusts to the legislative branch of
government.")--but the Court would also violate the rights of the citizens of the
District to republican forms of government--i.e., by depriving them of a government they
have chosen, see Twenty Citizens' Memorandum in Support of Summary Judgment at 68-73.
[footnote 4: The claims presented in Adams v. Clinton are not political questions,
however, since these claims go to discontinue a situation in which rights are violated,
not to impose a given political status upon the District. See Twenty Citizens' Opposition
to Federal Defendants' Motions to Dismiss at 5-12. In this sense, Adams v. Clinton is
identical to every apportionment case ever brought.]
Finally, while it may be tempting to argue (from Howard v.
Commissioners of Louisville, 344 U.S. 624 (1953), and its progeny) that the District
"always has been" a part of Maryland and that its isolation has been improperly
construed under the law, the concise symmetry of this argument (analyzing the District as
identical to the federal enclaves), its neat implications (that the residents of the
District "always have been" Maryland citizens), and sheer judicial fiat (to
apply this argument and effect a de jure retrocession) cannot overcome two hundred years
of aggregated social, legal, and political separation. See Phillips v. Payne, 92 U.S. 130,
133-34 (1876). [footnote 5: Considering whether retrocession of the former portion of the
District south-west of the Potomac was constitutional, saying: "The State of Virginia
is de facto in possession of the territory in question . . . and her title and possession
have been undisputed since she resumed possession in 1847 . . . . More than a quarter of a
century has since elapsed. . . . [Therefore, t]he plaintiff in error is estopped from
raising the point which he seeks to have decided. He cannot, under the circumstances, . .
. force upon the parties to the compact [the citizens of the retroceded territory, the
United States, and Virginia] an issue which [none] of them desires to make."
(citation omitted).] The only force which can overcome this history and respect the rights
of the citizens of the District to republican forms of government (i.e., to a political
reality to which they consent) is the unified political will of the citizens of the
District of Columbia and of Maryland. That will is properly vindicated if the Court
restrains Congress from further segregation of the District of Columbia from the remainder
of the country.
Respectfully submitted,
George S. LaRoche
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