Eric Lynch is an Associate at Sandler Reiff Lamb Rosenstein & Birkenstock, P.C. Prior to joining the firm, Eric served as a law clerk for the Honorable Lisa Margaret Smith of the United States District Court for the Southern District of New York, and for the Honorable Steven M. Wellner of the Superior Court of the District of Columbia. Eric is a graduate of William & Mary Law School and has previously published legal scholarship on voting rights and election administration.
To train the next generation of lawyers in the law and practice of voting rights, ballot access, campaign finance, election administration, and democracy protection.
By Eric Lynch
Mar 22, 2023, 10:20 AM
The Republican-led U.S. House of Representatives recently blocked a set of controversial D.C. Council resolutions that aim to reform the District’s 122-year-old criminal code and permit non-citizens the right to vote in local elections. In a surprising demonstration of bipartisanship, the Democrat-led Senate also blocked the criminal code reform and President Biden signed a resolution to block it. President Biden and congressional Democrats have not yet suggested what they will do about the non-citizens voting law.
Ironically, federal oversight of the District comes from a 1973 law that established the District’s ability to self-govern. This law, commonly known as the D.C. Home Rule,1Pub. L. 98-198, 87 Stat. 774 (1973) (codified in scattered sections at D.C. Code). permits self-rule through the D.C. Council, its legislative branch, and the Mayor’s Office, its executive branch.2The District’s judicial system remains within the structure of the federal judiciary. Like any state, through a system of checks and balances, this local government may adopt laws and approve an annual budget. Under D.C. Home Rule, however, Congress and the president each have the authority to reject the District’s governmental actions.3D.C. Code § 1-206(c).
Congress has successfully overridden a D.C. law just three times in the D.C. Home Rule era, the last of which was 30 years ago. Considering the rarity of the moment, and that Democrats would rather look hypocritical on the District’s self-governance than soft on crime and immigration, it is clear that politics plays a factor here. Maybe this is jaded, but national party politics in the lead-up to a presidential election cycle does not surprise me.
What surprises me is the position taken by some District leaders, namely Mayor Muriel Bowser and Shadow Senator Mike Brown, in their roles as advocates for self-rule through statehood. Mayor Bowser criticized the criminal code reform passed by the D.C. Council over her veto for overburdening the court system and lessening penalties on some serious crimes, and then declined to lobby Congress for its passage. Senator Mike Brown blamed a liberal Council for sending the non-citizen voting law to a conservative House of Representatives, describing the Council as a “petulant child.”
By way of background, shadow senators and representatives are unpaid, elected officials whose role is to advocate for statehood. They can trace their roots to the Tennessee Plan, a method to achieving statehood. The Tennessee Plan calls for, among other things, sending a delegation to Congress to lobby for statehood.
In 1980, the citizens of the District convened a constitutional convention to pursue statehood through the Tennessee Plan. The constitutional convention produced a constitution in 1982, and the citizens approved it later that year.4The D.C. Council enacted a revised version of the constitution in 1987 but it was never ratified by the citizens. The District, however, did not elect its first shadow delegation until 1990.5In addition to Senator Brown, the current shadow delegation consists of Senator Paul Strauss, and Representative Oye Owolewa. In 2014, the D.C. Council established the New Columbia Statehood Commission to revive the Tennessee Plan. The Commission comprises several local political leaders, including Mayor Bowser and Senator Brown, who are dedicated to advancing statehood and self-rule as part of their roles on the Commission. In 2016, the Commission placed the statehood issue on the ballot through a public referendum, and the citizens overwhelmingly approved the measure.
Returning to Mayor Bowser and Senator Brown, their commentary and actions here are less about the merit of these laws and more about the D.C. Council’s decision to take these actions in the current political climate. But even if Mayor Bowser and Senator Brown are right, once any bill becomes law at City Hall the issue being debated in Congress does not concern the bill’s merits—it is the District’s ability to self-govern. In their roles as statehood advocates, their actions here conflict with their roles in the battle for self-rule. No matter what they may think about these laws, this kind of politics stops at Capitol Hill where their duty to D.C. statehood begins.