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Dan MacMeekin         Attorney at Law        Washington, DC, USA

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Michel v. Anderson

Footnotes

* Sitting by designation pursuant to 28 U.S.C. § 294(d) (1988).

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1. By statute and practice, the privileges of the other delegates are tied to those enjoyed by the Puerto Rican Resident Commissioner. See infra.

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2. For the sake of convenience, we will occasionally refer to the appellees as "the House." This is not, however, intended to imply that a suit naming the House itself as a defendant would be proper.

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3. The parties here include a number of amici curiae in support of appellee Eleanor Holmes Norton, the delegate from the District of Columbia.

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4. Appellees seek to distinguish Gregg on the ground that the private voters there had suffered an injury separate from that suffered by the congressmen. We are unpersuaded by that distinction. Gregg involved a challenge to the allegedly inaccurate procedures used in compiling the Congressional Record. The congressional plaintiffs claimed an injury to their alleged First Amendment right to have their views transmitted accurately, while the voters asserted the corollary right to receive those views accurately. See 771 F.2d at 540. Here, the congressmen allege that their voting power in Congress has been diluted, whereas the voters complain of a dilution in their representational rights. That injury is at least as distinct from the congressmen's as the harm alleged in Gregg.

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5. Appellants concede that members may introduce in the full House a motion to recommit a bill to the standing committees for amendment, but understandably argue that the existence of this time-consuming and cumbersome procedure does little in practice to cure the influence of the Committee of the Whole's proceedings on final bills. Alternatively, appellant congressmen argue that they should not be compelled to surmount such difficult hurdles in order to enforce their right not to have their vote diluted by the delegates' participation.

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6. Under one such scenario advanced by appellants, the five delegates would each agree to trade their votes on a certain bill with three members in exchange for the members' support of the delegates' pet bill. That pet bill, then, might pass by a margin of 15 votes—too great a number to trigger the revote mechanism but nevertheless a margin that might not have existed were it not for the ability of the delegates to trade their newly granted votes in the Committee. The implicit underlying assumption is that a member would be willing to trade his vote for a delegate's at par, even though in a close vote (presumably the only vote where such a trade would matter) the delegate's own vote could not have a decisive effect because of the revote mechanism. Of course, the membership of delegates on standing committees already endowed them with considerable vote-trading possibilities.

Appellants raise as a second scenario the possibility that by casting a decisive vote, a delegate could "force" a revote, and that the "power" to force a second vote might itself be sufficient to alter the result. Appellants point to a number of instances (unrelated to delegate voting) in which two successive votes were taken on a bill, with the result of the second differing from that of the first. See 139 Cong. Rec. 4,184 (daily ed. June 29, 1993); 139 Cong. Rec. 4,788 (daily ed. July 20, 1993). The power to force a second vote is not, however, all that different from the power to resubmit a bill for consideration by the House, a power that the delegates historically have enjoyed.

Finally, appellants point out that House Rule XXIII only provides for a revote on recorded votes, and that the delegates might cast decisive votes when such votes are unrecorded. While this is theoretically true, it is unclear how often, if ever, an unrecorded vote on a controversial matter would be decisive, given that it takes only 25 members to force a recorded vote. See House Rule XXIII, cl. 2(b).

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