The DC Statehood Proposal Could Give a Handful of People Three Electoral Votes

Proponents of District of Columbia statehood believe this is their moment. The House of Representatives has approved H.R. 51, and the Senate might bypass the filibuster to send the proposal to President Joe Biden for his signature. But election questions plague the bill.

H.R. 51 would turn most of the District of Columbia into a state called “Washington, Douglass Commonwealth” (after Frederick Douglass). A remaining federal enclave consisting principally of the White House, the Capitol, and federal buildings around the Mall would become the seat of government called “Capital.”

While nearly everyone in the current District of Columbia would be moved to the new state, the new Capital would still have about 30 to 50 people living in it. And under the Twenty-third Amendment, ratified in 1961, those few dozen people would have three electoral votes in presidential elections. Though the District of Columbia did not have representation in Congress, the amendment gave D.C. residents electoral votes equal to the smallest state in the country. States such as Vermont and Wyoming have three electoral votes; so does D.C.

If Douglass Commonwealth becomes a state, it gets two senators, at least one member of the House, and an equivalent number of electoral votes. But the remaining Capital residents are also entitled to three electoral votes in every presidential election. Critics of the Electoral College complain about the imbalance between small and large states, but this would be the most lopsided of all — Capital would have about 1/20,000th the population of Vermont. A sitting president’s family could change their voter registrations to Capital and have nearly unilateral control over three electoral votes.

It’s a problem for statehood proponents, but H.R. 51 calls for an expedited repeal of the Twenty-third Amendment. There’s no guarantee that two-thirds of each house of Congress, plus legislatures in 38 states, would vote for repeal. The Constitution has been amended once in the last fifty years, and a handful of resistant states or members of Congress could block repeal.

If the Twenty-third Amendment is repealed, it would disenfranchise the few dozen individuals left in Capital. H.R. 51 requires states to keep former residents as absentee voters in their states if they now live in Capital. That would shift any voters from Capital back to their previous states.

But it’s unclear if Congress, without a constitutional amendment, can force states to keep voters on their books once they’ve moved to Capital. Congress has admittedly enacted similar legislation to ensure military and overseas voters can participate in federal elections in their former states. But that law has not faced a serious challenge in federal court, and it rests on a dubious foundation. States hold primary— and recent Supreme Court precedent has suggested, exclusive — power to determine voter eligibility in federal elections. And even then, Capital would still have three electoral votes to be used by somebody, somewhere.

Supporters of D.C. statehood suggest that instead of repealing the Twenty-third Amendment, Congress could choose the electors. The Constitution gives Congress the power to direct the manner of appointing presidential electors, which it has done by allowing D.C. residents to hold a popular vote to choose electors, like all other states. For the first time, Congress would have a direct say over presidential elections.

But if Congress did try to pick its own electors, that would introduce another problem. The Voting Rights Act prohibits individuals from voting twice in the same election. If Congress selects its own presidential electors, then every member of Congress who votes back home would violate the Voting Rights Act. Many states also have rules in place prohibiting voting more than once on Election Day, too.

The best solution is repeal of the Twenty-third Amendment and express constitutional authorization for Congress to create voting rules for Capital residents. Opponents of D.C. statehood will undoubtedly seize on this argument as a basis for blocking statehood, and a minority of Congress or a few states could hold up repeal. That would effectively end statehood efforts. Unfortunately for statehood proponents, the best way forward is also the most difficult.

Derek T. Muller is a professor at the University of Iowa College of Law.