The Washington PostDemocracy Dies in Darkness

Even the GOP’s three best arguments against D.C. statehood don’t stand up to scrutiny

Advocates for statehood for the District rally near the Capitol on March 22.
Advocates for statehood for the District rally near the Capitol on March 22. (J. Scott Applewhite/AP)
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Opponents of D.C. statehood have at most three arguments that deserve any respect. They involve the Founders’ intent, retrocession to Maryland and the 23rd Amendment.

But none stands up to scrutiny, as I’ll discuss below. It’s hard to accept that Republicans and other critics believe that these arcane constitutional claims count for more than respecting the nation’s founding rallying cry of “no taxation without representation.”

Instead, as GOP leaders are increasingly willing to admit publicly, they care primarily about preventing the deep-blue District from sending two additional Democrats to the Senate and one to the House.

Many of the objections raised at last week’s House hearing on statehood were plainly laughable. A bill, H.R. 51, would convert all but a sliver of the District to a new state.

Zack Smith, a legal fellow for the conservative Heritage Foundation, marred an otherwise responsible presentation by asserting that D.C. residents already had plenty of influence on Capitol Hill because they could post yard signs that members of Congress would see on their way to work.

Bowser, advocates make the case for D.C. statehood at House committee hearing.

Some GOP House members suggested the District couldn’t be a “real” state because it lacked a landfill or a sufficient number of car dealerships.

One of their principal complaints — that statehood represents a partisan power grab by Democrats — was risible in light of U.S. history. Admission of states has often provoked major political battles, as well as constitutional challenges.

The Republicans have brought in many states for their own partisan purposes. In one of the best examples, the GOP successfully lobbied to split the Dakota Territory into two states in 1889 so the GOP would pick up four new senators instead of two.

“Western states that were brought in in the late 19th century — Colorado, the Dakotas — were not only brought in on a party-line vote, but they were brought in specifically with the purpose to pad Republican majorities,” said George Derek Musgrove, a history professor at UMBC and co-author of “Chocolate City: A History of Race and Democracy in the Nation’s Capital.”

That said, the Republicans did raise some arguments that merit attention, even if they ultimately come up short:

Founders’ intent. It’s fair to ask whether the Constitution’s authors foresaw shrinking the federal district to a two-mile square enclave comprising the White House, Capitol, Supreme Court and the Mall.

Could D.C. become a state? Explaining the hurdles to statehood.

That’s what H.R. 51 would do, to honor the Constitution’s requirement that the seat of government would be in a federal district controlled by Congress and “not exceeding ten miles square.” The rest of the current District would become the 51st state.

Critics say the risk is that the shrunken district would be too small to carry out its intended functions, especially providing security for Congress.

That argument lost a lot of punch, however, with the police response to the Jan. 6 storming of the Capitol by rioters intent on blocking the election of President Biden. The Capitol Police called in reinforcements not just from the District, but also from Maryland and Virginia.

If the Capitol Police can call in reinforcements from Maryland and Virginia, then why not from a newly created neighboring state as well?

The bottom line is that the Founders put nothing in the Constitution’s text to prohibit the shrinkage of the federal district.

“There’s no lower bound in there,” said Adriel I. Cepeda Derieux, a senior staff attorney at the American Civil Liberties Union. “If they knew how to say it couldn’t be larger than a certain size, they were also smart enough to say it couldn’t be smaller than a certain size, and they didn’t.”

Retrocession. The alternative of giving most of the District back to Maryland has the distinct advantage of solving the main problem by providing the District’s 712,000 citizens with congressional representation.

As such, it’s been the favored alternative for Republicans and others who could tolerate seeing the Democrats pick up an extra House member as long as they didn’t get two more senators as well.

‘It’s not a local issue anymore’: D.C. statehood moves from political fringe to the center of the national Democratic agenda.

There’s also a precedent for it. The District originally straddled both sides of the Potomac, but the land on the Virginia side retroceded to the Old Dominion in 1847.

But there’s a huge difference today. The Virginia retrocession occurred with the approval of both the affected residents at the time — living in what is now the city of Alexandria and Arlington County — and the Richmond legislature. (Both supported it largely to protect slavery against rising abolitionist sentiment across the river, but that’s a separate story.)

The opposite is true now. District residents don’t want to rejoin Maryland. They voted by 86 percent in a referendum endorsing statehood.

Maryland isn’t supportive either. A Washington Post poll in 2019 found Marylanders opposed making the District one of their counties by 57 percent to 36 percent.

“The question of retrocession is an irrelevant distraction when the people of Washington have already written a state constitution and petitioned to join the union as their own state,” Rep. Jamie B. Raskin
(D-Md.) said.

23rd Amendment. The 1961 amendment granting the District three electoral votes raises perhaps the thorniest objections of all. That’s because it would provide that a shrunken federal district — home to the occupants of the White House and maybe no one else — would still cast votes for the president.

Even the ACLU, which supports statehood, acknowledged in a report that there is “discernible tension” between the 23rd Amendment and H.R. 51.

The statehood bill aims to solve it first by repealing the legislation in which Congress provides for the District’s participation in federal elections. The amendment’s second section gives Congress that authority. In theory, this means the shrunken district wouldn’t select any electors.

But that would seem to conflict with the amendment’s first section, which says the federal district “shall appoint” electors. It says the district shall do so “in such manner as Congress may direct.” But the language doesn’t appear to allow that no electors would be appointed at all.

H.R. 51 also provides for initiation of speedy congressional approval to repeal the 23rd Amendment. Statehood defenders say both chambers would quickly repeal it, as would at least 38 state legislatures as required to amend the Constitution.

That’s because Democrats would want to support statehood, and Republicans wouldn’t want the Biden family to be able to cast three electoral votes.

But there’s no guarantee the amendment would be repealed that quickly.

It’s conceivable that Republican state legislatures would refuse to do so while statehood opponents mounted efforts in the courts to block H.R. 51 altogether.

I think the best solution is to press for repeal but meanwhile have Congress direct the shrunken district’s electoral votes be cast according to the nationwide popular vote — two electoral votes for the winner and one for the loser.

Moves to render the 23rd Amendment inoperative until its repeal would be “untidy” but still constitutional, the ACLU report said. They would provide a path to correct one of America’s most glaring failures to live up to its ideal of representative government.