May 16, 2021 at 1:39 pm #100002937zpodiumKeymaster
But as the New York Times reported Thursday, the Biden White House is now looking at S. 51 much as a parent, working to put a holiday toy together, who discovers that there are missing nuts, screws that don’t fit the holes and pieces of the gift that simply do no align with each other.
If you want to know why statehood for the District of Columbia isn’t going to happen anytime soon, think of an old children’s board game called “Chutes and Ladders”—except the board is only chutes. Because of its peculiar status, turning D.C. into a state is technically much harder than admitting the previous 37—and each problem solved presents a new obstacle, either legal or political.
What do those obstacles look like? To understand, follow me down the path to a brick wall.
The federal district was established in 1790 in accordance with the constitutional imperative that the seat of the federal government be under the control of the Congress, rather than any other entity. (It’s right there in Article I, Section 8.) The reason, as James Madison explained in Federalist 43, was that the federal government had to be independent of any one state’s supervision. The district—to be no more than 10 square miles—was situated on its spot on the Potomac River as a compromise between Thomas Jefferson and Alexander Hamilton, with George Washington himself surveying the territory.
Over the years, D.C. has been given dollops of political power in the form of its own mayor and City Council. Most significantly, in 1961, the ratification of the 23rd Amendment granted the district votes in the Electoral College, equal to the number accorded the least populous state. But the idea of simply turning the District of Columbia into a state by statute, the way every other new state joined, has often been seen as a constitutional impossibility. 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. (That latter idea was proposed in 1978 but fell short of state ratification.)
“Aha!” proponents said. “We’ve figured out how to remove this obstacle.” The idea, which seems to have emerged around 1980, was to create a new “federal enclave” by carving out a tiny portion of the city—Capitol Hill, the Supreme Court, the National Mall, the White House—to remain as the constitutional capital. There have long been arguments to make the federal district smaller, dating as far back as 1803, through “retrocession,” the returning of parts of Washington to Virginia (which happened in 1847) and to Maryland (which Sen. Mitt Romney is currently proposing as an alternative to statehood). But rather than be absorbed by a neighboring state, the rest of D.C., the residential and commercial swaths of a big and vibrant city, would become a new state, renamed “Washington, Douglass Commonwealth,” keeping its acronym but replacing the name of a European explorer with that of a famed abolitionist whose house still sits within the city limits.
That’s what the House of Representative approved on a party-line vote last month.
As this nifty solution was moving through the House, a number of people began to notice a pesky complication. 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. And 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. By tradition, the presidential family votes back home, so these electors would either be chosen personally by the president, or perhaps the homeless people claiming this zone as their residence, or perhaps by opportunistic partisans camping on the mall simply to pull the electors one way or the other.
Depending how the lines were drawn, it’s possible that a few current Washingtonians would find themselves living in this new district, in which case three electors would be chosen by the residents of a handful of apartment buildings. But the essential point is that these electoral votes would be cast by more or less nobody. It would turn the federal district into a modern-day equivalent of the old “rotten boroughs” of British Parliamentary infamy, with so few voters that the seat was effectively filled at the pleasure of the local lord.
For Democrats who have long fumed at the way the Constitution gives outsize power to smaller states, this would be the ultimate irony: They’d be creating the single most outrageous case in the country. It’s one thing to point out that Wyoming has one elector for every 150,000 voters, while California has one for every 540,000. But the idea that three people, or 20, or a few hundred, would control three electoral votes is absurd.
It also raises one of the many political friction points around D.C. statehood. Small-state Republicans already hate the idea of giving any electoral power to such a Democratic-leaning city. Would you like to be, say, Montana Sen. Jon Tester, facing a difficult reelection, defending a vote that would grant a new state of Washington, Douglas Commonwealth, plus the new sliver of a federal district a total of six electoral votes—twice the number of his own state?
“No problem!” say proponents like Eleanor Holmes Norton, who serves as D.C.’s nonvoting representative in the House. All you need to do is repeal the 23rd Amendment; state legislatures will be eager to eliminate those three (likely Democratic) electoral votes. A provision in the statehood bill includes “fast-tracking” repeal.
Let’s come back to planet Earth. Is it likely that three-fourths of the state legislatures—more than half of which are controlled by Republicans—would be eager to ease the way to statehood for the District of Columbia, with its virtually automatic two new Democratic senators? Or would Republicans be more likely to point to the 23rd Amendment as a powerful case against moving forward on the House-passed bill? (It’s a lot better argument than the spurious notions that D.C. can’t be a state because it doesn’t have farms or factories.)
As for the ideas floating around the White House—automatically delivering the new seat of government’s three votes to the national popular vote winner, or to the Electoral College winner—the courts might have something to say about constitutionally stripping even a handful of voters of the power to direct their electoral votes to the candidate of their choice.
Indeed, when I asked one strong advocates of statehood if there were serious constitutional roadblocks, he said, “Yes—but don’t tell anybody!”
It’s too late for that, of course. People know. And what it looks like is that any “solution” to D.C. statehood, like other progressive wishes (passing voting rights by killing the filibuster) requires the same kind of solution that economists use to fix a leak: “First, assume a wrench.”
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