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November 6, 1998

LOIS E. ADAMS, et al., Plaintiffs,
WILLIAM JEFFERSON CLINTON, et al., Defendants. CLIFFORD ALEXANDER, et al., Plaintiffs, v. WILLIAM M. DALEY, Secretary of Commerce, et al., Defendants.

The opinion of the court was delivered by: OBERDORFER


 Two complaints filed by two sets of residents of the District of Columbia allege that Congress has unconstitutionally excluded them from apportionment to a congressional district. Orders entered November 3, 1998, consolidated the cases. Preliminarily, both sets of plaintiffs request that their cases be set before a three-judge district court in the manner contemplated by 28 U.S.C. § 2284(b)(1). That statute requires the convening of such a court "when an action is filed challenging the constitutionality of the apportionment of congressional districts." 28 U.S.C. § 2284(a). Whether a three-judge court is called for turns on: "(1) whether the complaint formally alleges a basis for equitable relief; (2) whether the constitutional question presented is substantial; and (3) whether the case presented otherwise comes within the requirements of the . . . three-judge statute." Police Officers' Guild, Nat'l Union of Police Officers v. Washington, 369 F. Supp. 543, 548-49 (D.D.C. 1973).


 The defendants named in the complaint in Adams v. Clinton include the President, ministerial officials of the House of Representatives, and the District of Columbia Financial Responsibility and Management Assistance Authority. The President and the House officials are alleged to have a role in effecting periodic apportionments to congressional districts as contemplated by Article I, § 2, cl. 3, of the Constitution; the Adams complaint seeks to enjoin their execution of any further apportionment until Congress has cured the claimed violations of plaintiffs' alleged constitutional rights. In addition, the Adams plaintiffs seek declarations that the present apportionments denying them representation in Congress violate their constitutional rights to a republican form of government and to the equal protection of the laws, as guaranteed by Article IV, § 4, and § 1 of the Fourteenth Amendment. These substantive complaints and plaintiffs' prayers for relief allege bases for equitable relief (which may or may not be granted) that clearly satisfy the first prong of the Police Officers Guild syllogism.


 Whether either constitutional question is substantial presents a more difficult problem. It is plaintiffs' contention, essentially, that the results of the reapportionment process, mandated by Congress in lieu of decennial reapportionment legislation, see Franklin v. Massachusetts, 505 U.S. 788, 791-92, 120 L. Ed. 2d 636, 112 S. Ct. 2767 (1992), violate Congress' constitutional apportionment obligation. The process does not merely provide plaintiffs with disproportionate representation in Congress; it provides no representation -- zero. Compare Board of Estimate of New York v. Morris, 489 U.S. 688, 702, 103 L. Ed. 2d 717, 109 S. Ct. 1433 (1989) with Swann v. Adams, 385 U.S. 440, 17 L. Ed. 2d 501, 87 S. Ct. 569 (1967). Thus, plaintiffs argue that the apportionment process deprives them of a republican form of government because it leaves them unrepresented in the legislative body (Congress) authorized by the Constitution "to exercise exclusive Legislation in all Cases whatsoever" involving them and the political subdivision in which they reside, the District of Columbia. U.S. Const. art. I, § 8, cl. 17. Plaintiffs also claim that they are denied the equal protection of the laws because District residents, who are subject to Congress' "exclusive" legislative power, are not represented in Congress, while residents of former federal enclaves and other sites over which Congress is empowered to "exercise like Authority" are. Id. (defining other sites as "Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings," e.g., the Bethesda Naval Hospital Complex).

 A constitutionally insubstantial claim, for three-judge court purposes, has been authoritatively described as "essentially fictitious," "wholly insubstantial," "obviously frivolous," and "obviously without merit," words that "in the context of prior [Supreme Court] decisions . . . import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous . . . ." Goosby v. Osser, 409 U.S. 512, 518, 35 L. Ed. 2d 36, 93 S. Ct. 854 (1973) (citations omitted) (emphasis added); see also Washington v. Confederated Tribes, 447 U.S. 134, 147-48, 65 L. Ed. 2d 10, 100 S. Ct. 2069 (1980); LaRouche v. Fowler, 152 F.3d 974, 982-83, 986 (D.C. Cir. 1998).

 While plaintiffs cite no cases that embrace their theories, they emphasize that their claims raise original issues that have textual and tangential decisional support. For example, in another context they point to the following statement of the Supreme Court in Board of Estimate of New York v. Morris : "In this country the people govern themselves through their elected representatives and . . . each and every citizen has an inalienable right to full and effective participation in the political processes of the legislative bodies of the nation, state, [and] locality . . . ." 489 U.S. at 693 (citations omitted).

 Plaintiffs also confront dictum of the D.C. Court of Appeals that the Guarantee Clause "applies to the states and cannot be read to restrict the power of Congress to legislate for the District." Darby v. United States, 681 A.2d 1156, 1158 (D.C. 1996), cert. denied, 519 U.S. 1034, 117 S. Ct. 596, 136 L. Ed. 2d 524 (1997). Plaintiffs argue, however, that a D.C. Court of Appeals decision is not preclusive, that its dictum is supported by no relevant Supreme Court authority, and that the issue in Darby about jurisdiction of the D.C. courts involved a quite different question from those posed here. It appears that no case binding on this court resolves the question whether, in the context here, the District may or should be treated as State for the purpose of Article 4, § 4. Cf. District of Columbia v. Carter, 409 U.S. 418, 420, 93 S. Ct. 602, 604, 34 L. Ed. 2d 613 (1973).

 The plaintiffs contend that no court has ruled authoritatively on the question whether a republican form of government, as that term is used in the Constitution, is denied to other persons unrepresented in the body that has authority "to exercise exclusive Legislation . . . over" them and the District in which they live. Article IV, § 4, obligates "the United States" (not just the Congress) to "guarantee to every State . . . a Republican Form of Government, and [to] protect each of them against Invasion . . . and . . . against domestic Violence." If, as it seems apparent, Article IV, § 4, obligates the United States to afford the District and its residents the same protection from "Invasion" and "domestic Violence" as is enjoyed by the several states and their residents, it may follow that, to the extent, if any, that Article IV guarantees to the states and their residents a republican form of government vis-a-vis the legislature that governs them, the District and its residents are entitled to the same guarantee -- irrespective of whether the District is a State for the purpose of the Guarantee Clause. The plaintiffs' claims are not rendered "obviously without merit" by cases suggesting that the Guarantee Clause necessarily involved a political question. See New York v. United States, 505 U.S. 144, 183-86, 112 S. Ct. 2408, 2432-33, 120 L. Ed. 2d 120 (1992).

 Further, it is not obvious that plaintiffs' equal protection claim is frivolous. The mere fact that plaintiffs are not challenging a statute that draws explicit distinctions between the District of Columbia and other federal enclaves with respect to apportionment does not establish conclusively that they are not challenging an arguably discriminatory distinction drawn by Congress and affected by the apportionment process conducted periodically by defendants. Therefore the equal protection claim is not obviously without merit.

 Then there is the Twenty-third Amendment, § 1 of which states:

The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:
A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; ...

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