The Twenty-Third Amendment is clearly the proverbial “camel’s nose in the tent,” with the tent being statehood for the District of Columbia. The Amendment treats the District of Columbia as if it were a State for purposes of the Electoral College. Both the Amendment and the argument for D.C. statehood are founded on the false premise that failure to accord the District equality with States discriminates against U.S. citizens living in the District.
The premise is false for at least four reasons: 1. Until the Twenty-Third Amendment, citizens of the District were treated on an equal basis with U.S. citizens who live in Puerto Rico or a foreign country. 2. After the Twenty-Third Amendment, citizens of the District have undue weight in the Electoral College. 3. As the capital of the country, the District enjoys advantages not possessed by any State. 4. No one State should be home to and legislate for and have power over the capital of all the States.
These reasons are discussed in more detail below:
1. Prior to the Twenty-Third Amendment, citizens living in the District of Columbia were in the same position as U.S. citizens living in a foreign country or Puerto Rico, who still cannot vote for presidential electors unless they are registered to vote in one of the States. Prior to the Twenty-Third Amendment, citizens living in D.C. would have had to be registered to vote in a State.
2. Since adoption of the Twenty-Third Amendment, U.S. citizens living and voting in the District of Columbia have had more weight in the Electoral College than their numbers warrant.
Originally, the District of Columbia contained two counties divided by the Potomac, Washington and Alexandria. Washington, ceded by Maryland, encompassed about twice the size of Alexandria, ceded by Virginia. Roughly, that ratio today applies as to the relevant populations of Washington and the area receded to Virginia. (Alexandria County, retroceded to Virginia in 1846-47, included much of what today is called Old Town Alexandria and Arlington County.) The District of Columbia has a current population of 672,228 (Census Bureau, 2015), which is somewhat more than twice the population of the area receded to Virginia.
Pursuant to the 2010 census, congressional districts were allocated to the States generally on the basis of having one seat in the House of Representatives for roughly every 710,767 people (Congressional Apportionment, 2010 Census Briefs, November 2011). Two States (Vermont and Wyoming), however, have a population of fewer than 700,000. Nevertheless, they are still entitled to one member of the House of Representatives, as provided by the Constitution in Article I, Section 2. Five other states (Alaska, Delaware, Montana, North Dakota, and South Dakota) with only one member of the House have populations over 700,000 (with Montana having the most: 1,032,949).
The District of Columbia receives very special treatment otherwise reserved for the rare case of sparsely populated States. Those States are given that privilege as States in recognition that some largely rural States will be sparsely populated. The District of Columbia lacks the status of statehood not only for constitutional reasons discussed below, but because it is a city. The United States, unlike medieval Europe, does not have city-states.
If the remainder of the District of Columbia was to be retroceded to Maryland, as has been proposed, that population of 627,228—by itself—would not quite add one more member to the State’s representation in the House. Had the 2010 population of the District been combined with that of Maryland, however, it is likely that Maryland would have gained one more member of the House and another electoral vote. Nevertheless, Maryland would not have received the two additional electoral votes awarded D.C. under the Twenty-Third Amendment.
Even if D.C. deserved one electoral vote based on population, it does not deserve the two electoral votes attributable to statehood. Each State receives two electoral votes for their two senators under Article II, Section 1. The equal representation of each State in the Senate by two senators is not based on population, but on the residual sovereignty of each State. The District of Columbia does not have residual sovereignty. Not even the Twenty-Third Amendment changes that; the Amendment provides that the selection of the electors shall be “in such manner as Congress may direct.” In other words, the Twenty-Third Amendment actually re-confirms what has always been true: despite a degree of home rule, the District of Columbia remains under the sovereign power of Congress.
In effect, the Twenty-Third Amendment increases the powers of Congress. Given that Congress has continually expanded its powers at the expense of the States, it should not surprise us that it would covet controlling voting in the Electoral College as if it were a State legislature.
This essay is part of a discussion about the Twenty-Third Amendment with Aderson Bellegarde Francois, Director, Institute for Public Representation Civil Rights Law Clinic, and Professor of Law, Georgetown University Law Center. Read the full discussion here.
3. Until Lyndon Johnson’s “Great Society” greatly increased federal domestic spending, Washington, D.C. was considered something of a “backwater.” Since then, Washington has grown into an imperial city of the kind the Anti-Federalists feared in opposing the Constitution’s provision for a “federal town.”
Even from the beginning, however, the District of Columbia has enjoyed advantages as the seat of the national government. Supreme Court Justice Joseph Story wrote in his Commentaries on the Constitution of the United States, that “there can be little doubt, that the inhabitants composing [the District] would receive with thankfulness such a blessing, since their own importance would be thereby increased, their interests be subserved, and their rights be under the immediate protection of the representatives of the whole Union.
4. The provision for a “federal town” in the Constitution, Article I, Section 8, addresses the need for the federal government to be separate from, and not dependent on, any State. It reflects the experience of the Philadelphia Mutiny of 1783, when some soldiers marched on the Continental Congress and the city failed to protect the Delegates. Accordingly, James Madison writes in The Federalist No. 43:
The indispensable necessity of complete authority at the seat of government, carries its own evidence with it . . . . Without it, not only the public authority might be insulted and its proceedings interrupted with impunity, but a dependence of the members of the general government on the State comprehending the seat of government, for protection in the exercise of their duty, might bring on the national council an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the confederacy.
The District of Columbia and those living there enjoy a privileged status. It is patently false to say that the United States “disenfranchises the people of its capital city.” See Jamin Raskin, A Right-to-Vote Amendment for the U.S. Constitution: Confronting America's Structural Democracy Deficit, 3 Election L.J. 559 (2004).
John S. Baker, Jr. Visiting Professor, Georgetown University Law Center; Professor Emeritus, Louisiana State University Law Center