By Adriel I. Cepeda Derieux, ACLU Senior Staff Attorney, Voting Rights Project
As the movement for D.C. statehood gains undeniable momentum, anxious cries from its detractors are reaching a fever pitch. Following the House of Representatives’ recent approval of the Washington, D.C. Admission Act, H.R. 51, which would finally grant statehood and full voting representation in Congress to over 700,000 people living in our nation’s capital, critics emerged in the Wall Street Journal, the National Review, and elsewhere to wring their hands over the alleged “partisan advantage” that statehood would bring. Further, they argued, D.C. statehood can only spring from a constitutional amendment.
This focus on the potential partisan leaning of the new state’s federal delegation misses the point: D.C. statehood would correct an overt act of racial voter suppression with roots in the Reconstruction era. In 1867, President Andrew Johnson vetoed a bill granting adult citizens of the District — including Black men — the right to vote. Congress overrode the veto, granting significant political influence to Black Washingtonians. But just as Black voters started to exercise their power, Congress replaced D.C.’s territorial government with three presidentially appointed commissioners.
The goal of that move was obvious: disenfranchising an increasingly politically active Black community. As Sen. John Tyler Morgan of Alabama explained in 1890, after “the negroes came into this district,” it became necessary to “deny the right of suffrage entirely to every human being.” As he put it more simply, and shamefully: It was necessary to “burn down the barn to get rid of the rats.”
In one cautionary opinion piece, attorneys David Rivkin and Lee Casey raise some policy concerns against the House bill. But their stated arguments are not constitutional barriers. Relying on Attorney General Robert F. Kennedy’s 1964 memo opposing D.C. statehood, the authors conclude that “abolishing the permanent seat of the federal government would be a profound change — the sort that can be accomplished only with a national consensus implemented through a constitutional amendment.” But H.R. 51 does not abolish the national capital — it only shrinks it, making a new state out of most of the resized District’s surrounding areas.
Congress can do this, because the Framers knew how to say what they meant. They gave Congress authority to “exercise exclusive legislation in all cases whatsoever” over the District, stating only that it could not be larger than ten square miles. That sweeping authority includes the power to shrink the District to less than its current size. As Viet Dinh, Assistant Attorney General under President Bush, explained to Congress in 2014, Kennedy’s policy concern “is just that: a policy concern,” and would not override a constitutional act of Congress.
There’s no better proof that the Framers meant to give Congress the power to shrink the District’s boundaries than the fact that it immediately did so after the District was first established. Congress gave back most of Arlington and Alexandria to Virginia in 1846. But the first Congress also changed the District’s configuration in 1791, less than four years after the Constitutional Convention. This bolsters the constitutionality of the House bill, because, as the Supreme Court said in Marsh v. Chambers (1983), acts of the first Congress offer “contemporaneous and weighty evidence” of the Framers’ intent. And when the court addressed the 1846 retrocession in Phillips v. Payne (1875), it strongly hinted that Congress had vast authority over the District’s boundaries, saying the case involved “action of the political departments” that “bound” the courts.
Nor does the House bill violate the Twenty-Third Amendment, which gives the District of Columbia three votes in the Electoral College. That amendment would lead to a curious result: It would give the few residents of the smaller, reshaped national capital outsized influence in presidential elections. But there’s no constitutional conflict between the House bill and the Twenty-Third Amendment. As Viet Dinh explained, “the Constitution is not violated anytime the factual assumptions underlying a provision change.” Indeed, the Amendment gives the current District three — and only three — Electoral College votes even if its population somehow quadrupled tomorrow, and the bill provides an expedited process for removing those three electors. And importantly, as noted by Rivkin and Casey, the House-passed bill establishes expedited procedures for the House and Senate to repeal the Twenty-Third Amendment.
Critics continue to ignore the essential argument in favor of statehood: ending the continued disenfranchisement of a non-minority Black jurisdiction that has left hundreds of thousands of Americans without representation in Congress. They also overlook the fact that in 2016, almost 80 percent of D.C. voters supported statehood in a referendum.
Admitting a new state will always have political implications. That’s why the Framers fully left the matter to Congress’s discretion. Rivkin and Casey are right that D.C. statehood would be a “profound change,” — a profound, constitutionally viable change — that would bring our country one step forward to an inclusive democracy.