The 23rd Amendment: Once D.C.’s Great Step Towards Equality is Now Another Practical Hurdle in a Long Line of Challenges to True Equality via Statehood

Carrie Anderson*

The idea for the establishment of a special district to serve as our nation’s capital arose out of a strong goal to prevent conflict in the new nation between the states and ensure that one state did not have too much control over the federal government. Although many United States citizens do not enjoy the full benefits of citizenship due to residence in a territory or a personal status such as age or past criminal conviction, the unique constitutional standing of D.C. creates distinct problems to enfranchising the citizens of the District.

Article I, Section 8, Clause 17 of the Constitution provides that Congress shall establish a federal district “not exceeding ten Miles square[,]” in which Congress exercises exclusive authority over “in all Cases whatsoever[.]”¹ Notably, this clause does not require that the size of the district remain constant or maintain a minimum size.² In 1801, Congress exercised this power by passing the District of Columbia Organic Act, taking jurisdiction over territory once belonging to Maryland and Virginia, as well as the voting rights of those living in the territory.³ The district created initially took advantage of the full ten miles square allowed by the Constitution, but by 1846, Congress used its power to return Virginia’s land back to the state, resulting in a shrinkage of the district’s lands by a third.⁴

As a result of the changing demographics of the district and the growing political power of the residents throughout the twentieth century, on June 16, 1960, Congress passed the 23rd Amendment, and the states quickly ratified by March 29, 1961.⁵ The 23rd Amendment did not fully enfranchise the citizens of the District, but took an important step to allow Congress to direct a method for the District to select electors for President and Vice President,⁶ which they did by enacting Public Law No. 87-389 to select electors via a popular election.⁷ Although the 23rd Amendment remains intact today, D.C. has continued to gain more autonomy via the 1973 Home Rule Act in which Congress delegated power to an elected Mayor and Council.⁸ Furthermore, the required two-thirds of Congress sought to give even greater power equivalent to statehood via the 1979 D.C. Voting Rights Amendment, which would have given the District voting representation in both the House and Senate, but only 16 states ratified the Amendment within the required seven-year window.⁹

In the intervening years, the push for statehood has once again gained greater momentum. Under Article IV, Section Three of the Constitution, Congress can admit states through legislation so long as the state is not within an existing state’s territory without that state’s consent and the jurisdiction seeking statehood has a republican form of government.¹⁰ Notably, Congress also generally considers if the petition reflects the desire of the people in the jurisdiction and that the area has a sufficient population and resources to support itself and contribute to the federal government.¹¹ Accordingly, the D.C. Admission Act was introduced and passed by the House in both 2020 and 2021.¹² The Act would keep a small federal district “to include (among other things) the White House, the Capitol Building, the United States Supreme Court Building, and the Federal executive, legislative, and judicial office buildings located adjacent to the Mall[,]” while the majority of the land would become its own state with voting representatives in Congress.¹³

There are however some constitutional concerns regarding Article I and Article IV of the Constitution to admitting D.C. as a state, including the idea that the plenary authority requires there be a district and Maryland would consent to the creation of D.C. since it was their land in the first place.¹⁴ As to the need to keep some federal district, although the district proposed in the modern statehood plan would be small and deeply connected with the new state for services such as sewer and electricity,¹⁵ the plain text of the Constitution does not require the district maintain any particular size and proposed statehood plan keeps a constitutionally mandated federal district.¹⁶ Furthermore, in 1846 when Congress returned a portion of the District to Virginia, the D.C. Committee of Congress noted that the district can be small by stating that only the seat of government needs to be in the district–which also shows the idea of a small district is within the history and traditions of the nation.¹⁷ Additionally, concerns that Maryland would need to consent to prevent the new state from being created within the territory of another state are not founded because at the time of the initial creation of D.C., Maryland relinquished “full and absolute right, and exclusive jurisdiction ….” to the territory forever.¹⁸

Given the ability to dispel concerns arising from the body of the Constitution, opponents of statehood also attack the ability to award the District Statehood under the 23rd Amendment, as leaving a tiny federal district that is a recognized constitutional entity, would result in the remaining area maintaining electoral college votes. Even though repealing a constitutional amendment is challenging, creates an additional hurdle, and would require the support of thirty-eight other states whose Senate power would then be diluted, repealing the Amendment is still possible to address these concerns and called for under the D.C. Admission Act.¹⁹ There is however an argument, albeit a weak one given the potential constitutional confusion this would create,²⁰ that the Admission Act itself would simply moot the Amendment, because it “repeals the provision of federal law that establishes the current mechanism for District residents to participate in presidential elections, pursuant to Congress’s authority under the Twenty-Third Amendment[;]”²¹

Accordingly, the greater concern stemming from the 23rd Amendment is practical and not constitutional, of how to deal with the remaining electors if D.C. has virtually zero residents, and if they remain on the books without the Amendment being repealed or mooted.²² Once Congress authorizes D.C. statehood, states will have an interest in removing the 23rd Amendment because their Congressional Power would already be diluted, but repealing the Amendment will prevent the dilution of their electoral college power.²³ Furthermore, the “Amendment also allows Congress to select the number of Electors the District may receive, subject only to a maximum[,]” so until such time as the District has a large enough population to earn it more electoral college votes than the other smallest states it would have the same number of votes as now, the Amendment is not at issue.²⁴ Additionally, the enabling provision of the 23rd Amendment shows that Congress can direct how the D.C. electors will vote, and thus could simply direct the electors for the district to vote in accordance with the results of the popular vote, rather than in accordance with a decision made only by the minimal number of people that live in the district.²⁵

Finally, even though there may be constitutional concerns about the admission of the District of Columbia as a state, these issues may not even be subject to review by the courts.²⁶ The ideological split in support for D.C. statehood shows that the admission of a new state is clearly a political question, and the courts do not generally interfere in such political questions.²⁷ In fact, even when admission of a state has been during one of the most contentious political times our nation has ever seen–the Civil War–and there was a question of consent of ceding of the territory by a prior state, the court still declined to interfere in the admission of the state of West Virginia.²⁸ Thus, this shows that while there may be legitimate practical and even constitutional concerns about the admission of the District of Columbia as a state, the courts will likely defer to Congress and allow the admission to go forward.

Overall, “[w]hile it might be appropriate for Congress to repeal the 23rd Amendment once most of DC becomes a state, the Amendment’s existence in no way precludes admitting DC as a new state.”²⁹ No other state has needed a constitutional amendment to become a state, and the residents of D.C. should not be subject to a greater burden than any other state to obtain the full rights of citizenship. However, even though it should not be a constitutional burden towards statehood, the practical challenges that the 23rd Amendment creates continues to provide an escape for anti-statehood advocates to justify preventing D.C. residents from exercising the full rights of citizenship. Therefore, advocates of statehood must be prepared to develop creative solutions to the practical concerns the 23rd Amendment if it is not going to serve as another roadblock to enfranchising D.C. residents.

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* Carrie Anderson, J.D. Candidate, University of St. Thomas School of Law Class of 2024. Senior Editor, University of St. Thomas School of Law.

1. U.S. Const. art. I, § 8, cl. 17. ↩︎
2. Letter from Caroline Fredrickson et. al. to Speaker Nancy Pelosi et. al., 3 (May 22, 2021), https://www.dropbox.com/s/ghtdagoapnlzowf/Letter%20to%20Congressional%20Leaders%20on%20Constitutionality%20of%20Statehood%20for%20Washington%20D.C.%20May%2022%202021.pdf?dl=0. ↩︎
3. Maya Efrati, DC Statehood Explained, Brennan Ctr. For Just. (March 18, 2022), https://www.brennancenter.org/our-work/research-reports/dc-statehood-explained#:~:text=In%201960%20Congress%20approved%20the,voting%20representation%20in%20the%20House. ↩︎
4. Letter from Fredrickson et. al., supra note 2, at 3. ↩︎
5. John S. Baker & Aderson Bellegarde Francois, The Twenty-Third Amendment, The Nat’l Const. Ctr., https://constitutioncenter.org/the-constitution/amendments/amendment-xxiii/interpretations/155 (last visited Sept. 28, 2023). ↩︎
6. U.S. Const. amend. XXIII. ↩︎
7. Baker & Francois, supra note 5. ↩︎
8. Baker & Francois, supra note 5. ↩︎
9. Baker & Francois, supra note 5. ↩︎
10. Efrati, supra note 3. ↩︎
11. Efrati, supra note 3. ↩︎
12. Efrati, supra note 3. ↩︎
13. Letter from Fredrickson et. al., supra note 2, at 3. ↩︎
14. R. Hewitt Pate, D.C. Statehood: Not Without a Constitutional Amendment, The Heritage Found. (August 27, 1993), https://www.heritage.org/political-process/report/dc-statehood-not-without-constitutional-amendment. ↩︎
15. Id. ↩︎
16. Letter from Fredrickson et. al., supra note 2, at 3. ↩︎
17. Letter from Fredrickson et. al., supra note 2, at 3. ↩︎
18. Letter from Fredrickson et. al., supra note 2, at 3. ↩︎
19. Efrati, supra note 3. ↩︎
20. Hewitt Pate, supra note 14. ↩︎
21. Letter from Fredrickson et. al., supra note 2, at 1. ↩︎
22. Letter from Fredrickson et. al., supra note 2, at 4. ↩︎
23. Letter from Fredrickson et. al., supra note 2, at 4. ↩︎
24. Letter from Fredrickson et. al., supra note 2, at 5. ↩︎
25. Press Release, Congresswoman Eleanor Holmes Norton, Norton Responds to Incorrect Assertion That 23rd Amendment Must Be Repealed Before D.C. Can Be Granted Statehood (April 30, 2021) https://norton.house.gov/media-center/press-releases/norton-responds-to-incorrect-assertion-that-23rd-amendment-must-be ↩︎
26. Press Release, Congresswoman Eleanor Holmes Norton, Norton Responds to Incorrect Assertion That 23rd Amendment Must Be Repealed Before D.C. Can Be Granted Statehood (April 30, 2021), https://norton.house.gov/media-center/press-releases/norton-responds-to-incorrect-assertion-that-23rd-amendment-must-be. ↩︎
27. Letter from Fredrickson et. al., supra note 2, at 1. ↩︎
28. Letter from Fredrickson et. al., supra note 2, at 1. ↩︎
29. Letter from Fredrickson et. al., supra note 2, at 2. ↩︎