Better Wait Than Never: Norton thinks undue haste on gay marriage could be congressionally disastrous.
Better Wait Than Never: Norton thinks undue haste on gay marriage could be congressionally disastrous. Credit: Darrow Montgomery

We know D.C. Get our free newsletter to stay in the know.

With the D.C. House Voting Rights Act set to hit the Senate floor early next week, and with House consideration likely not far behind, things are looking up enough that LL can ask the question: What happens after the bill becomes law?

Well, Eleanor Holmes Norton isn’t magically transformed from delegate into full-fledged congresswoman.

As Norton told Bruce DePuyt on his show last Friday, an election will have to be held to elect a representative: “There has to be a special election, and I do not know how that will occur, ” she told DePuyt. “This is another office, a new office created by the house for two jurisdictions.”

She added that she has talked to D.C. Council Chairman Vincent C. Gray about planning for such circumstances. Gray’s office had no comment, but LL is told that the council’s general counsel has been investigating the mechanics of electing a representative.

Some of the issues at stake: Before a special election could be held, District election laws will have to be changed, abolishing the elections for congressional delegate and shadow representative and creating an election for member of congress. There is some question over whether Congress can amend those laws, or whether the Council must do so itself; the current Senate version of the DCHVRA includes language that would amend District law along those lines.

Then there’s the question of what would happen in the interim period between when the DCHVRA is signed and the results of a special election are certified. The council could decide to leave the office vacant, automatically appoint the delegate for the interim period, or give the mayor the power to appoint an interim representative.

But all of these questions could very well turn out to be moot.

As soon as the bill is signed, it’s widely expected that several parties will attempt to challenge its constitutionality.

Who exactly? To be determined.

Jonathan Turley, a law professor at George Washington University who has repeatedly testified to the unconstitutionality of the DCHRVA and other bills like it, says that while federal courts have made it increasingly difficult in recent decades to challenge government decisions, it’s hard to imagine a court not granting legal standing to a challenge in this case.

“There’s an array of potential litigants,” he says, including District residents, members of Congress, residents of other states. “My expectation is that at least one group of those plaintiffs will be found to have standing. It will be very hard for Congress to say that it can change the structure of the institution with no judicial review.”

Once a judge grants standing, Turley says, he will likely order an injunction preventing any newly minted representative from being seated until the legal matters are sorted out. His prediction: “I don’t think a court would have much difficulty finding this unconstitutional.”

With an injunction in place, and the legality of the DCHVRA up in the air, it would make little sense for the council to spend the time and money to hold a special election.

In other words, don’t hold your breath, Eleanor.

Photo by Darrow Montgomery