Tag Archives: Vladeck

DC Statehood – Redux

Politico apparently wants to put the knife into the DC statehood movement. It just published Your All-Purpose Wonk’s Guide to Why D.C. Statehood Is So Hard  https://politi.co/3ymTtVF where this appears:

Attorneys general ranging ideologically from Robert F. Kennedy to Ed Meese have weighed in on the same side of this argument: Because the federal district was created by the Constitution, only an amendment to the Constitution could turn it into a state; and only an amendment could grant D.C. votes in the House and Senate.

Ridiculous. If Constitution had flatly said “DC may be made a state by an act of Congress pursuant to its exclusive authority over the District,” there would be zero basis for arguing that a constitutional amendment was necessary. While the Constitution does not contain that precise language, there is no language that expressly bars the District from being converted into a state under that same exclusive legislative control the Constitution plainly did give Congress.

The Politico article continues:

The 23rd Amendment says “the district constituting the seat of government of the United States shall appoint” presidential electors in a manner requiring ultimate congressional approval. Under the statehood bill just passed, the new city of “Washington, Douglass Commonwealth” would get three electors, just like the other low-population states—but according to the 23rd Amendment, that tiny strip of land designated as the new “federal district” would also have three electoral votes.

This is illogical reasoning. If “ultimate congressional approval” is required for the new “tiny” federal enclave (author’s description, not mine), there is no reason Congress could not simply fix the problem, if it is one.

This is what the 23rd Amendment actually says:

Section 1

The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. [emphasis added]

Section 2

The Congress shall have power to enforce this article by appropriate legislation.

Not only is the power of Congress to address the issue of electoral vote for the seat of government plenary (unqualified, absolute), but the text of the amendment is unambiguous that the federal enclave would get three electoral votes. The Politico article sees this as an insuperable problem because “depending on how specifically the lines of this remnant are drawn, it’s possible that the only residents of that zone would be the First Family.”

But unless one has the view that no increase in total electoral college votes is possible, a position not supported by the Constitution, this is not a problem at all. True enough, the District’s electoral vote would be determined by the number of voting citizens living within the District’s boundaries, which would be a small number than other “states,” but so what? Over time it’s likely that more people would move to the District zone and the “problem” would recede. Why is this any different than changes in population in other “states,” that have the effect of increasing electoral votes for some states and reducing votes for others? Oh, and by the way, the pending legislation does not define the federal enclave so that the only residents are the First Family. But nice try.

The Politico author translates those people in the federal enclave into “more or less nobody.” Another article adds to the silliness with the argument that “the result is a potential nightmare scenario in which a federal district exists where “zombie” electoral votes could be cast on behalf of people camping out on the Mall overnight for partisan political advantage.” https://nym.ag/3or64Cs Is it possible that writers of these pieces do not understand how voter registration and voting work in this country? If it were possible to do as they speculate, would we not have seen massive temporary migrations of “campers” moving to key swing districts to vote there rather than, say, their actual place of domicile where the outcome is certain? Republicans in the wake of Trump’s thumping in 2020 have twisted themselves into knots even sailors can’t imagine, and no such fraudulent voting was uncovered. The zombies are not the Mall campers. You can take it from there.

Fortunately, that same article just  cited notes this:

Stephen Vladeck, a professor at the University of Texas School of Law who has studied the constitutional issues around this, said that even without repeal, the text of the amendment gives Congress the power to enforce it “by appropriate legislation.” This means that Congress could simply pass a bill by the normal legislative process to, for example, hand the district’s electoral votes to the winner of the national popular vote, absent a new amendment.

Bingo! We can stop worrying about how the electoral votes of the federal enclave will be directed because Congress has complete control of that outcome and can avoid all the insane scenarios dreamed up by opponents of DC statehood.

It’s surprising that the author of the Politico piece, a person with a hugely impressive curriculum vitae, https://bit.ly/3v1s2i7, would conclude his analysis with a smug dismissal that suggests, without analysis, that there is no constitutionally acceptable way to address the issues raised by the 23rdAmendment. Certainly, he is correct that there are politically fraught issues here. Republicans are dead set against allowing the District of Columbia to become a state, but their constitutional arguments are just a cover; their opposition is grounded in their fear of adding a likely Democratic state to the mix. Their resistance is about retaining political power and nothing more.

In thinking about this, we should keep in mind that the 23rd Amendment was adopted to fix a political problem that would cease to exist if DC were made a state and a federal enclave were created to preserve the plenary authority of Congress over the seat of the federal government. The 23rd was not adopted to bar statehood for DC. If it were intended for that purpose, it could have just said so. It didn’t ,and there is no reason in the Constitution to see it otherwise. Since the purpose of the 23rd Amendment can be satisfied another way, it should be the case that, given the express and indisputable plenary authority of Congress over the federal enclave, a legislative solution is feasible and acceptable. Where there is a will, there is usually a way.