The District of Columbia Electors Amendment

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.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

—Derek T. Muller

Introduction

Under the original Constitution, the seat of the federal government was not directly represented in that government. The District of Columbia was not a state, so it did not elect members of Congress or participate in the Electoral College. The Twenty-Third Amendment, ratified in 1961, ensured that the District of Columbia could participate in presidential elections. No major legal disputes have arisen over this amendment. Nevertheless, it complicates efforts to make the District of Columbia a state, and proponents recognize that statehood ought to be coupled with repeal of the amendment to avoid electoral difficulties.

Historical Background

The Constitution anticipated a District that would become the seat of government for the United States. States would cede land to the federal government, and Congress would then exercise authority over that territory.¹ Residents of what would become the District of Columbia were unable to participate in federal elections. There is no significant record of the Framers discussing a choice to exclude residents of the District from federal elections. In Federalist No. 43, James Madison observed that the District’s arrangement “obviated” “every imaginable objection.” Although he did not elaborate on the point, he wrote that “sufficient inducements of interests” would make inhabitants of the District “willing parties to the cession.” Madison stressed that the District would “of course” be allowed “a municipal legislature for local purposes.”

Congress’s proximity to the District seemed to suggest that it would govern in the District’s interest, but, over the decades, indirect representation fell out of favor in both law and practice in federal elections. The Seventeenth Amendment, for instance, took the election of Senators out of the hands of the legislature and into the hands of the people. Likewise, at the Founding, many state legislatures chose presidential electors, but the election of presidential electors now takes place exclusively by popular vote in every state.

This expanding preference for direct election and representation carried over to the seat of government. In 1883, Representative Henry Blair of New Hampshire introduced an ultimately unsuccessful amendment that would have given electoral votes in presidential elections to the District of Columbia.² During the first half of the twentieth century, more than a dozen similar amendments were suggested.³ After World War II, District of Columbia residents were active in advocating for federal representation. The area saw an influx “of young, liberal Democrats” who identified such representation with a larger movement for civil rights.⁴

The Congressional Debates

Formal consideration of what would become the Twenty-Third Amendment began in 1959. Senator Estes Kefauver of Tennessee introduced Senate Joint Resolution 39.⁵ The resolution was meant originally to give governors emergency authority to appoint temporary House members in the event that more than half of the House’s authorized seats were vacant at a single time; then two amendments were added.⁶ The first proposed to eliminate the poll tax in federal elections.⁷ The second proposed to grant residents of the District of Columbia electors in federal elections and non-voting delegates in the House of Representatives with the number of electors and delegates to be determined by the District’s population just as it was in the states.⁸ In 1960, this proposal would have resulted in four electoral votes and two delegates for the District.⁹

On the floor of the Senate, the amendment to grant suffrage to District of Columbia residents was praised as a message to the world about America’s commitment to democracy, and the current lack of voting rights in the District was criticized as taxation without representation.¹⁰ On February 2, 1960, the Senate passed the three-part resolution by an overwhelming majority, with minimal objection to the amendment granting suffrage to the District of Columbia, and sent it to the House for consideration.¹¹

In April, the House Judiciary Committee held hearings on Senate Joint Resolution 39.¹² Convinced that he would be unable to achieve committee approval of all three parts of the resolution, Judiciary Committee Chairman Emanuel Celler of New York suggested that the portions of the resolution eliminating the poll tax and granting governors emergency authority to appoint representatives be removed and that the amendment granting electors to the District of Columbia be “water[ed] down.”¹³ The committee approved Celler’s proposal. The amendment was altered so that the District would not receive any delegates to the House and its number of electors would be capped at the number given to the least populous state.¹⁴ This compromise in essence would provide the District with three electoral votes, regardless of its population.¹⁵ Just as Article II, Section 1 granted the respective state legislatures plenary power over the manner of selecting presidential electors, a like power was given to Congress to provide the “manner” of appointing electors in the District. This power was not granted to the local District municipal government.

The committee presented the updated resolution to the House as House Joint Resolution 757, which was discussed on the floor on June 14, 1960.¹⁶ Representative John Lindsay of New York supported the resolution but criticized its cap on the number of electors the District could have. He said the cap “serves no useful purpose [and] violates logic,” “imposing . . . by constitutional language, a permanent inferior status upon the District’s participation in the electoral college.”¹⁷ Representative Frank Bow of Ohio also supported District suffrage but regretted that under the resolution, the District would have no delegates in the House.¹⁸

Ultimately, the House decided, with little to no vocal objection on the floor, to replace the language of Senate Resolution 39 with the updated language of House Resolution 757.¹⁹ The Senate approved the House’s changes in Senate Joint Resolution 39 on June 16, 1960, and the proposed amendment was transmitted to the states.²⁰

The Ratification Debates

The requisite three-fourths of the states approved the amendment in less than a year. Only Arkansas rejected it. Arkansas state representative Marion Crank stated that the amendment was an attempt “to create another state” and that “[g]iving [the District of Columbia] electors is the first step.”²¹

Practice

The District of Columbia was able to cast electoral votes for the first time in the 1964 presidential election. It participates in presidential elections every four years alongside the 50 states. Perhaps understandably, the Twenty-Third Amendment has seen no major litigation since its adoption. Congress, by statute, adopted a winner-take-all system, which is how most states award presidential electors. The winner of the plurality of votes receives all three of the District’s presidential electors.²²

The Twenty-Third Amendment and D.C. Statehood

Efforts to give statehood to the District of Columbia pose problems in light of the Twenty-Third Amendment. If the District were to become a state, the “seat of Government of the United States” would not be eliminated. Instead, it would be reduced to a small federal enclave containing the White House and the federal Mall with only a few dozen residents. These few residents would be entitled to the three electoral votes granted to the seat of government by the Twenty-Third Amendment. Granting three electoral votes to a community of this size is undesirable for obvious reasons.

Recent statehood efforts have included provisions requiring states to allow federal district residents to vote in the last state in which they resided, but it is unclear whether Congress has the power to compel states to do so. Statehood proposals also include an expedited process to repeal the amendment, which might leave a handful of voters unable to vote anywhere. Finally, unless repeal happened simultaneously with statehood, it could create anomalies in elections for at least a short period of time, although scholars have suggested possible work-arounds that remain debated.²³

1. Art. I, § 8, cl. 17. ↩︎
2. John Vile, Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues 480 (2003). ↩︎
3. Id. ↩︎
4. Clement E. Vose, When District of Columbia Representation Collides with the Constitutional Amendment Institution, 9 State of Am. Federalism 105, 115 (1979). ↩︎
5. 105 Cong. Rec. 13944 (1959). ↩︎
6. 106 Cong. Rec. 1745 (1960). ↩︎
7. Id. at 1758. ↩︎
8. Id. ↩︎
9. Constitutional Amendment on D.C Suffrage, 16 Congressional Quarterly Almanac 284–287 (1960), https://perma.cc/4P65-BZZ9. ↩︎
10. 106 Cong. Rec 1759 (1960). ↩︎
11. Id. at 1765. ↩︎
12. Id. at D176; D180. ↩︎
13. Constitutional Amendment on D.C Suffrage, supra. ↩︎
14. Id. ↩︎
15. Id. ↩︎
16. 106 Cong. Rec 12552 (1960). ↩︎
17. Id. at 12563. ↩︎
18. Id. at 12564. ↩︎
19. Id. at 12571. ↩︎
20. Id. at D360. ↩︎
21. Morton Mintz, Arkansas Is First to Reject District Voting Amendment: Vote Is 59–26; Opponent Fears Try at Statehood, Wash. Post, Times Herald (Jan. 25, 1961), https://perma.cc/R327-BXLP. ↩︎
22. Pub. L. 87-389 (Oct. 4, 1961); D.C. Code §§ 1-1001.08(e), 1-1001.10(a)(2). ↩︎
23. Derek T. Muller, Twenty-Third Amendment Problems Confronting District of Columbia Statehood, 2021 Harv. J.L. & Pub. Pol’y 2 (2021); Jessica Bulman-Pozen & Olatunde C. Johnson, Federalism and Equal Citizenship: The Constitutional Case for D.C. Statehood, 110 Geo. L. J. 1269, 1312 (2022). ↩︎