The District constituting the seat of Government of the United States shall appoint in such manner as 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.
The Congress shall have power to enforce this article by appropriate legislation.
Visiting Professor at Georgetown Law School and Professor Emeritus at Louisana State University School of Law
Institute for Public Representation Civil Rights Law Clinic and Professor of Law at Georgetown University Law Center
Congress passed the Twenty-Third Amendment on June 16, 1960. The proposed amendment was quickly ratified as part of the Constitution. On March 29, 1961, Ohio became the thirty-eighth State to approve the Amendment, thereby fulfilling the Constitution’s Article V requirement that amendments be ratified by three-fourths of the States. Six months later, Congress exercised its power under Section 2 of the Amendment to enact Public Law No. 87-389, establishing the mechanics of presidential election in the District of Columbia. After its ratification, two more States ratified the Amendment.
The Amendment allows American citizens residing in the District of Columbia to vote for presidential electors, who in turn vote in the Electoral College for President and Vice President. In layperson’s terms, the Amendment means that residents of the District are able to vote for President and Vice President. Prior to the Amendment, citizens residing in the District could not vote for those offices unless they were validly registered to vote in one of the States.
Congress ultimately controls the District, but has allowed it a degree of self-rule. The Seat of Government Clause of the 1787 Constitution, which provided for the establishment of the District, grants Congress exclusive power to govern the District. Over the years, most recently pursuant to the 1973 Home Rule Act, Congress has exercised that power to extend to the District a measure of autonomy, including the power to elect a Mayor and a Council.
Since its creation, the District has sometimes been treated like a State. The District is deemed to be a State for the purpose of levying and collecting federal and local taxes, for service in the armed forces, for diversity jurisdiction, and for regulating commerce. But it still remains that, at present, the District is not considered a State for purposes of congressional representation. Nothing in the Twenty-Third Amendment changes that: the Amendment neither grants the District statehood, nor does it provide residents with representation in the Senate or the House of Representatives, though, by congressional legislation, residents have long had the right to elect a non-voting delegate to the House.
In 1978, Congress adopted “The District of Columbia Voting Rights Amendment,” which provided for the District of Columbia to “be treated as though it were a State.” The proposed amendment would have given the District seats in the House of Representatives and the Senate. Only 16 of the 38 States needed for ratification approved the proposed amendment before the seven-year period open for ratification expired.
Institute for Public Representation Civil Rights Law Clinic and Professor of Law at Georgetown University Law Center
There are two important points to consider about the Twenty-Third Amendment: The first and perhaps most crucial, as Rep. Jamin Raskin writes, is that “we are the only nation on earth that disenfranchises the people of its capital city.” This fact, which places us entirely outside the norms of other democracies, is neither a natural consequence of our federated political structure, nor the implicit, much less explicit, intent of the Framers of the Constitution. The second and no less significant point to bear in mind is that the people of the District of Columbia were not always second-class citizens. For a while after Virginia and Maryland ceded land to the federal government to form the District, residents living within the geographical boundaries of the District did vote in the elections of federal officers for Virginia and Maryland.
A federated political system is usually understood to consist of “a national polity with dual or multiple levels of government, each exercising exclusive authority over constitutionally determined policy and/or geographical areas, but in which only one level of government—the central government—is internationally sovereign.” By that definition, at least 24 of the world’s 193 countries have federal political systems. The capitals for these 24 states fall along three main categories: 1) capital as city-state; 2) capital within a state or province; and 3) a federal district or territory. Today, the capitals of 11 of the 24 federated systems essentially accord with the third or D.C. model of a federal district or territory; in every single one, save D.C., residents of the capital enjoy full political franchise and legislative representation.
The language of the final Seat of Government Clause that was adopted at the 1787 Constitutional Convention set out the parameters of the Nation’s Capital but intentionally did not set its location, so as not to offend New York or Philadelphia, which remained options. The debate surrounding the Clause indicates that the Framers intended to insulate the Federal Government from the influence of any one state but nothing in those debates settled the question of representation for residents of the District. In fact, as far as we can tell, as Judge Oberdorfer of the D.C. District Court wrote, “delegates to the Convention discussed and adopted the Seat of Government clause, and the remainder of the Constitution, without any recorded debate on its implications for the voting, representation or any other rights of the inhabitants of federal enclaves, including the yet-to-be-selected Seat of Government.” Adams v. Clinton (D.D.C. 2000). In July 1790, Congress enacted the Residence Act, establishing the location and size of the District and the President’s duties within it. But again, there is no evidence in the Act that the early Congress considered or discussed the consequences the Clause or Act would have (or should have) on the voting rights of the District’s inhabitants.
One not insignificant piece of evidence that the denial of full representation to District residents is not the natural state of things is that, after Virginia and Maryland ceded land to the federal government and the District’s boundaries were formally drawn in 1791, District residents continued to vote for members of the House representing Virginia and Maryland. The practice would continue for a decade until Congress adopted the Organic Act in 1801 and assumed full authority over District government. The point, of course, is not that today’s District residents should be split up to vote in Virginia or Maryland federal elections according to pre-ceded geographical lines, but rather that there is precedent for residents of the District being represented in Congress without it resulting in irreparable harm to the republic.
The claim that District residents do not have (and should not have) full representation in Congress tends to rest on the meaning of the word “state” as it is used in the Constitution. For example, with respect to the House of Representatives, the argument goes: 1) the right of any citizen to full House representation rests exclusively in Article I; 2) Article I provides that only qualified citizens have the right to be represented in the House of Representatives; 3) a citizen is qualified under Article I if he or she is a resident of a state; 4) the District of Columbia is not a state; therefore 5) District residents are not qualified under Article I and have no voting rights.
However, the question of whether the District should be declared or called a state is separate from—and in a way less important than—the question of whether the people of the District should have full representation in Congress. We’ve long had little difficulty treating the District as a state for various reasons even when doing so is not necessarily supported by explicit constitutional text. But more importantly, it is far from clear that the Framers used the word “state” in Article I with the specific intent to disenfranchise the class of people living in the District. Rather, the far more likely explanation is that references to “States” in Article I reflect the Framers’ overriding desire to set up a mechanism by which the people of the several states would form a national representative government—a mechanism that in and of itself was not meant to disenfranchise anyone purely by the accident of which side of the Potomac River they happen to live.
Today, the Twenty-Third Amendment, giving the people of the District the right to choose electors to participate in the elections of the President and Vice President, together with the 1973 Home Rule Act, giving the District the right to elect a Mayor and Council, have gone some way in bringing District residents closer to full citizenship. But it still remains that the District has no voting representative in the Senate or the House, no final control over its taxes, and no dominion even over its laws, which Congress can overrule when it so chooses. This quasi-colonial relationship is often explained away with claims on the one hand that congressional representation would result in the District having outsized power given its small geographic footprint and small population, and on the other hand that any disadvantages to not having full legislative representation are more than outweighed by the supposed financial benefits the District receives from its relationship with the federal government. But it seems an irreconcilable contradiction to maintain both that legislative power is too important to entrust to such a small population as make up the District and not so important that it can’t be bought off with some federal appropriations money.
In the final analysis, if legislative representation is the irreducible core of democratic self-rule, it is a remarkable thing that whether it is afforded to the people of the District should somehow be determined by the symbolic internal lines we’ve drawn on a map. But, the reality that a population larger than that of Vermont or Wyoming lives as second-class citizens is perhaps less remarkable than the fact that there is no definitive evidence that under the 1787 constitutional order it was ever intended that it be so.
Jamin Raskin, A Right-to-Vote Amendment for the U.S. Constitution: Confronting America’s Structural Democracy Deficit, 3 Election L.J. 559 (2004).
Johnny Barnes, Towards Equal Footing: Responding to the Perceived Constitutional, Legal, and Practical Impediments to Statehood for the District of Columbia, 13 D.C. L. Rev. 1, 13 (2010)
Senator Orrin G. Hatch, Policy Essay: No Right is More Precious in a Free Country: Allowing Americans in the District of Columbia to Participate in National Self-Government., 45 Harv. J. on Legis. 287, 300 (2008)
Peter Raven-Hansen, Congressional Representation for the District of Columbia: A Constitutional Analysis, 12 Harv. J. on Legis. 167, 174 (1975).
