Jessica Bulman-Pozen & Olatunde Johnson are professors at Columbia Law School
Nearly 130 years after Frederick Douglass pronounced Washington, D.C., the “one spot where there is no government for the people, of the people, and by the people” and predicted this “anomalous condition” would not “be much longer endured,” full citizenship is within reach. On June 26, 2020, the House of Representatives voted to make Washington, Douglass Commonwealth, the fifty-first state in our Union. Statehood would furnish both the local autonomy prized by our federal system and voting representatives in the House and Senate. It should be an urgent priority for the 117th Congress—but before passage, the bill should be modified in a way blessed by the Supreme Court’s decision yesterday in Chiafalo v. Washington.
Recognizing that self-rule and political representation might become a reality as soon as 2021 for D.C.’s largely Black, urban population—a population Senator Tom Cotton contrasted to the “well-rounded, working-class” residents of Wyoming—opponents are raising constitutional objections. In decades of debate over previous statehood bills, most have already been answered. The New States Clause of Article IV gives Congress broad authority to admit new states through ordinary legislation, as it has done 37 times. Article I’s District Clause, which grants Congress exclusive control over the national Seat of Government, sets an upper but not a lower bound on the size of this district, and H.R. 51 preserves a purely national enclave as the Capital. The contraction of the national seat would not even be a first; in 1847, a portion of the district retrocessed to Virginia. Also spurious are arguments that statehood would require the approval of Maryland, which relinquished any claim to the land constituting D.C. when it “for ever ceded” this land to the United States in 1791.
Perhaps recognizing the weakness of arguments grounded in Article I and Article IV, opponents are lining up behind a more surprising argument: that the 23rd Amendment prevents statehood without a constitutional amendment. The 23rd Amendment partially enfranchised D.C. residents by allowing the District to be treated like a state for purposes of the Electoral College. Since the amendment was ratified in 1961 and Congress adopted implementing legislation, D.C. residents have controlled three electoral votes in presidential elections. Now opponents of statehood insist it cannot proceed absent repeal of this amendment, which assumed D.C. was not a state. Their argument is wrong. H.R. 51 preserves a “District constituting the seat of Government of the United States,” as the 23rd Amendment contemplates, and the amendment can continue to operate according to its terms. Of course, statehood would dramatically alter conditions and assumptions that underlay the amendment’s adoption, but that does not amount to a constitutional violation. Indeed, the vast majority of constitutional provisions no longer operate against the backdrop their framers assumed.
Opponents are nonetheless correct that the coexistence of statehood and the 23rd Amendment is problematic as a policy matter. The 23rd Amendment offered a crumb of statehood; once Washington, Douglass Commonwealth, is a state, there is no need for it. Worse, legislation could confer the Capital’s three electoral votes on a tiny group of people residing in the federal enclave (perhaps only the President’s family). H.R. 51 recognizes the problem. It provides for expedited consideration of the repeal of the 23rd Amendment and, in the meantime, repeals the federal statutory provision for D.C. presidential electors and instead allows any residents to vote in their last states of residence. If H.R. 51 became law, Washington, Douglass Commonwealth, would be a state like any other, and the Capital would no longer participate in presidential elections.
But there is a better way, one suggested by the Supreme Court’s decision in the faithless electors case, Chiafalo v. Washington. Instead of effectively abrogating the 23rd Amendment, Congress should pass legislation allocating the electoral votes of the “District constituting the seat of Government of the United States” to the winner of the national popular vote. This would better accord with the text of the 23rd Amendment, which provides that this district “shall appoint” electors “in such manner as Congress may direct.” Although a congressional directive to appoint no electors, as H.R. 51 would currently have it, complies with the Constitution, a congressional directive to affirmatively appoint electors is a better fit with the text. Moreover, the Court recognized in Chiafalo that electors need not enjoy discretion in casting their ballots; a state may “instruct its electors that they have no ground for reversing the vote of millions of its citizens.” Analogously, Congress could require electors for the “District constituting the seat of Government of the United States” to follow the nationwide presidential vote.
Beyond better reconciling D.C. statehood with the text of the 23rd Amendment, this legislative fix would be a small step toward making presidential elections more democratic. It would not stand in the way of more far-reaching Electoral College reform. For example, the National Popular Vote Interstate Compact or a constitutional amendment could make the winner of the national popular vote President-elect. The fix we propose would be unlikely to influence an election, but it would introduce into American law—for the very first time—a truly national vote. With a revised H.R. 51, the moment of statehood could also be a broader moment of nationhood.
Most important, this revised legislation would confer full American citizenship on the residents of Washington, Douglass Commonwealth, without constitutional, statutory, or practical impediments. Like the requirement that electors adhere to citizens’ votes, such enfranchisement “accords with the Constitution—as well as with the trust of a Nation that here, We the People rule.”