This summer, the House of Representatives passed H.R. 51, a bill that would make D.C. the country’s 51st state. Once a provincial cause, statehood for the District has taken on vast significance in national partisan politics: In addition to enfranchising hundreds of thousands of residents, many strategists now think DC statehood is essential to Democrats holding long-term power in the Senate. For the first time ever, every candidate in the Democratic presidential primary was a supporter of DC statehood.
But there’s an odd wrinkle buried in H.R. 51 which could make statehood a proposition that’s costlier than Democrats think: Under their bill, there remains a federally controlled district in the middle of Washington, one that’s reduced to a few blocks around the Mall. And under the Constitution, the federal capital is guaranteed three electoral votes—whether it’s a big city or merely a tiny enclave surrounded by the 51st state.
And according to maps of the new enclave, it appears that the only actual residence in this federal district is the one at 1600 Pennsylvania Avenue, meaning the voters at said residence—currently the home of Donald and Melania Trump—would control as many electoral votes as the entire population of Wyoming.
This absurd situation might be difficult to unwind. Creating a new state only requires a majority vote in Congress and a presidential signature. But the votes that the capital is guaranteed by the 23rd Amendment to the Constitution, something that needs a supermajority in Congress and also requires ratification by two-thirds of the states.
Ratified in 1961, the 23rd amendment was prompted in part by the embarrassingly bad optics of the world’s leading democracy denying basic rights to residents of its capital city. It says, basically, that the federal capital gets the same number of electoral votes as the smallest state.
Republicans have seized on the 23rd Amendment to argue that DC can’t be a state. However, almost all constitutional scholars think this argument is bunk. Nothing in the 23rd Amendment—or anywhere else in the Constitution—can stop Congress from turning DC into a state. Especially since the statehood measure wouldn’t actually eliminate the federal capital district: While almost all of Washington would become a state, the Douglass Commonwealth, a tiny federal enclave would remain, made up, roughly speaking, of the Mall, the White House, and the Capitol, and the key federal buildings that surround it.
Thus the sticky problem that Congress can’t avoid. This redrawn “rump” federal district would, by all appearances, have an electorate that began and ended with the residents of the White House. What is to stop those residents—whether their name is Trump, Biden, or Kardashian-West—from clinging to those Constitutionally-guaranteed three electoral votes? Does that mean the first family effectively would get the same electoral clout as the state of Vermont?
This whole notion rings so ridiculous that it sounds made-up. But it’s not made-up. “Those living in the White House would appear to remain residents of the District of Columbia,” concludes a report by the nonpartisan Congressional Research Service. It adds, “A court would likely find that the Twenty-Third Amendment would continue to provide the District of Columbia…three electoral votes.”
A legal memo by the ACLU is blunter. “Under H.R. 51,” the memo reads, “the few residents who live in the reduced District—including the President and their family—would have outsized influence in presidential elections.” Such an outcome “may be bad policy,” it goes on, “but not unconstitutional.” And while it just takes a Congressional vote and a Presidential signature to create a state, getting rid of those three electoral votes would require changing the Constitution. That’s a much tougher task, especially if one political party is in the mood to make trouble.
A number of scholars presented with the problem have essentially been left scratching their heads. “It’s a puzzle,” acknowledged Mary Cheh, Councilwoman for DC’s Ward 3, and a professor of constitutional law at George Washington Law School. “It’s something we have to address.”
The advocates behind the statehood bill recognize they have a problem, too—even if they believe it’s a solvable one. If nothing were done to address it, “then whoever lived in the White House would get the tacit three votes, because the only people who would be living in [the capital] would be people in the White House,” says Walter Smith, the Executive Director of the good-government group DC Appleseed, who worked closely with Mayor Bowser in lobbying for H.R. 51.
Alan B. Morrison, a constitutional law professor at GW, who has worked on lawsuits arguing for DC statehood, agrees that the risk is real, even if theoretical. “If Donald Trump were in the White House, he might vote there, and give himself 3 more electoral votes,” says Morrison.
One obvious solution, they say, is to change the Constitution. “What they ought to do is repeal the 23rd Amendment,” says Morrison. Smith actually thinks that ratifying a Constitutional amendment would be easy, even with a polarized political environment. “The states would want to do that,” he says. “No one thinks the President of the United States ought to have 3 private electoral votes of his own.”
How did DC find itself in this pickle? The text of the 23rd Amendment reads that the federal capital “shall appoint” three voters to the electoral college, and in “such manner as the Congress may direct.” It grants Congress the power to enforce the amendment “by appropriate legislation.”
Eventually, Congress did pass that legislation. In 1961, it updated the part of federal law that outlines presidential elections. At the very bottom, Congress tacked on a new section—Section 21—which was so simple it essentially was a single sentence: “‘State’ includes the District of Columbia.” With those six words, DC piggybacked onto all the established procedures for voting in presidential elections. Section 21 could literally translate as, “All those rules for the fifty states? Yeah—so also DC now.”
DC’s ability to vote for president, then, is the sum product of two legal instruments: The 23rd Amendment, plus Section 21, equals 3 electoral votes. The most direct and simple way to revoke those electoral votes, then, is to repeal the part of the Constitution that made it possible.
“The full and complete way to address it is to have a constitutional amendment,” says Cheh. “When they adopt the statehood bill, at that very same time, they could propose an amendment to the constitution to abolish the 23rd amendment.”
In fact, that’s what H.R. 51 does. The statehood bill devotes an entire section to repealing the 23rd Amendment—spelling out a series of extraordinary, hair-on-fire procedures in the House and Senate to change the Constitution as fast as humanly possible. In legislative terms, it screams, “Holy S*@t! We’ve gotta change the Constitution!” But, once ratified, the capital district’s 3 electoral votes would be wiped out, and for good.
Problem solved? Not so fast.
One thing about Constitutional amendments is that they take a long time to ratify. This is by design. The average length of time to pass an amendment is one year and eight months. The 22nd Amendment took almost four years. The last time that a Constitutional amendment passed was in 1992. Since then, American politics has become vastly more polarized, and like everything else, the issue of DC statehood has become intensely partisan. Conservatives are almost certain to try to stop the creation of Douglass Commonwealth in the Supreme Court, arguing that H.R. 51 is unconstitutional.
Let’s imagine, then, that Republican-led states in the South and Midwest are intent on stopping Democrats from gaining two new Senators. They might plausibly support this conservative legal challenge—and in the process, simply refuse to repeal the 23rd Amendment.
Now there’s a new problem: What happens if Democrats can’t change the Constitution in time for the next presidential election?
In this scenario, H.R. 51 has a backup plan. It chokes off the franchise, disallowing anyone inside the capital to cast a vote for president.
How? By repealing Section 21—the little 6-word edict that Congress passed in 1961. The statehood bill takes a sharpie and draws a thick, red line right through the voting clause. One minute DC can vote. The next minute, it can’t.
HR 51 also does a second thing: It allows the residents of the capital (say, Donald and Melania) to vote in whichever state they previously resided. And it does this by requiring those states to allow the capital’s residents to cast a ballot there.
In this scenario, the 23rd Amendment would exist in perpetuity, limping along, but no one would be paying attention to it. It would be a dead letter, or as Cheh puts it, “a derelict on the waters of the law.”
Once again, problem solved, right? Once again, not so fast.
Not so fast, says Cheh, because neither of those measures may actually be legal—or they could backfire tremendously. And in any case, conservatives seeking to take down Douglass Commonwealth will doubtless take the matter to court. “There could be legal consequences down the road in terms of lawsuits,” says Cheh. “The sitting president might say, ‘You can relegate me to [voting in] New York. I’m a resident of the District of Columbia, such as it is, and I should succeed to these three votes—me, Ivanka and whoever.”
For one, telling states they must allow residents of the capital to cast a ballot in their state could be vulnerable to a lawsuit, based on a principle known as the anti-commandeering doctrine—which prohibits the federal government from coercing states into following federal mandates that are otherwise the province of state governments.
But the greatest pickle is Section 21. Can Congress actually repeal a law that, in effect, takes away people’s vote for president? And do so even when the Constitution explicitly grants electoral votes to their district? Congress’s ability to write laws governing DC’s electoral status derives from the 23rd Amendment—an amendment whose purpose is to grant voting status, not take it away.
The core argument, says Cheh, concerns whether the 23rd Amendment is “self-executing”—whether it merely allows Congress to grant DC its voting powers, or if it commands Congress to. Democrats might argue that just as Congress can pass Section 21, it can revoke it. “The only problem with that argument is that the language is ‘shall.’ It’s so commanding,” says Cheh, referring to the text of the amendment—the capital shall appoint its electors. “That does seem to fly in the face of the purpose of the amendment.” And such an argument might not fly at all in a conservative-controlled Supreme Court.
Yet the biggest problem is about unforeseen consequences. Let’s say Democrats are right, and Congress can repeal Section 21 as it pleases. By the same logic, that means a Republican Congress could put it back. Imagine this nightmare scenario: Every four years, Democratic and Republican presidents reverse each other’s legal theory, back-and-forth, granting the White House 3 electoral votes and revoking them, depending on the party in power.
Here’s another wrinkle: Congress still gets to pass laws that regulate life inside the federal district. In theory, then, a mischievous party could pass a law that allows people to claim residence inside the Capitol complex or inside federal buildings.
However, not everyone thinks this is such a bad idea; you can practically hear MSNBC and FOX News viewers licking their chops, dreaming of what they could accomplish with those extra three electoral votes. One government lawyer, a hardcore liberal, wondered if we should give this whole disenfranchising thing a try. “Well, maybe we shouldn’t repeal the 23rd Amendment,” he said, imagining himself talking to Mitch McConnell. “Maybe you fuckers kept DC out for so long, for such partisan reasons, that why should we give up these electoral votes?” As he went deeper into this daydream, he was getting more fired up. “Sure, sure limit it to the Capitol building. The White House. A couple federal agency buildings. Then, put in one or two apartment buildings and stuff it full of twentysomething yuppies.”
That’s precisely what Cheh is worried about. “I don’t even want a little chink in the armor here about Congress being able to mess around with electoral votes in that way,” Cheh says. She likened the 23rd Amendment, if not repealed in time for a presidential election, to being “a loaded gun”
“That’s why you should repeal it. Eliminate all doubts, all possibilities,” Morrison agreed. “I think the Democrats like to think they wouldn’t do stuff like that. But who knows.” He added that eliminating Section 21 should be thought of as a “temporary solution.”
The question is: with one side racing to amend the Constitution, and another side racing to the Supreme Court, how long will the temporary solutions hold up? “Whatever happens,” says Smith of Appleseed, “if DC is made a state, there will be a lawsuit.”
Cheh says she plans to teach the problem to her law students in constitutional law this fall. “These are delightful things to consider, because they present these legal puzzles,” she said.
“It’s one of those conundrums.”