What does the bill do about the 23rd Amendment?: Twenty-third Amendment to the United States Constitution - Wikipedia
Here’s more:
View the bill itself:
SEC. 223. Repeal of law providing for participation of seat of government in election of President and Vice-President.
(a) In general.—Chapter 1 of title 3, United States Code, is amended—
(1) by striking section 21; and
(2) in the table of sections, by striking the item relating to section 21.
(b) Effective date.—The amendments made by subsection (a) shall take effect upon the date of the admission of the State into the Union, and shall apply to any election of the President and Vice-President taking place on or after such date.
In turn, 3 U.S.C. chapter 1 provides for the election of electors to the office of the President and Vice President, using phrases such as “each State”. 3 U.S.C. § 21 defines D.C. as a state for the purposes of that chapter:
§21. Definitions
As used in this chapter the term-
(a) “State” includes the District of Columbia.
(b) “executives of each State” includes the Board of Commissioners of the District of Columbia.
However my opinion is that this “solution” is unconstitutional as the 23rd amendment requires that the district constituting the seat of government appoint electors. Note the words “shall” and “may”, emph. mine:
“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 governing district shall appoint electors, but the Congress may or may not provide direction. If Congress does not provide direction, or rather if Congress directs the district not to appoint electors, then Congress in its capacity as the plenary legislative power in the district has abandoned its constitutional duty. On this basis alone I cannot endorse the bill, but there is another problem.
SEC. 221. Permitting individuals residing in Capital to vote in Federal elections in State of most recent domicile.
(a) Requirement for states to permit individuals to vote by absentee ballot.—
(1) IN GENERAL.—Each State shall—
(A) permit absent Capital voters to use absentee registration procedures and to vote by absentee ballot in general, special, primary, and runoff elections for Federal office; and
(B) accept and process, with respect to any general, special, primary, or runoff election for Federal office, any otherwise valid voter registration application from an absent Capital voter, if the application is received by the appropriate State election official not less than 30 days before the election.
(2) ABSENT CAPITAL VOTER DEFINED.—In this section, the term “absent Capital voter” means, with respect to a State, a person who resides in the Capital and is qualified to vote in the State (or who would be qualified to vote in the State but for residing in the Capital), but only if the State is the last place in which the person was domiciled before residing in the Capital.
(3) STATE DEFINED.—In this section, the term “State” means each of the several States, including the State.
The election of presidential and vice-presidential electors is not an election Congress can regulate under Art I section 4; it is not actually a federal election, despite the bill’s organization of 23rd amendment provisions under the “federal elections” heading. The election of the President and Vice President by those electors is a federal election, the election of the electors is not. So I’m having trouble finding any authority for the federal government to require states to permit individuals residing in the Capital to vote for presidential electors in another state. Were a state to deny a Capital resident from voting for presidential electors in that state, and the Attorney General sued the state (as allowed by this bill), I suspect the courts would side with the state.
~Max
The presumption is that upon admission you’ll immediately have the votes to repeal the 23rd in within the week and enough legislatures will convene to ratify before the next election so its overlap would be just a legal curiosity.
Meanwhile ISTM Secc. 221 is a solution in search of a problem. From the map I’ve seen published, in the remainder space of the Capital District the population should draw down to, besides the First Family, mostly military members/employees and dependents actually housed on station, most of whom are already eligible for absentee balloting under regular state law. The remainder, if any, would be, in real-world terms, negligible. So yeah, dictating to the states who should be eligible for absentee balloting on everything other than Congress itself, to accommodate a few dozen people who could move across the street? That’s not flying with any Supreme Court we’ve had in the last 30 years.
(And the fact is, the anwer to that is that for purposes of Presidential voting you go back to treating the Capital District as a de facto Organized Territory: there’s already another four of those where a little under 4 million bona fide resident American Citizens right now cannot vote for President, and there have been dozens others through the history of the Republic.)
Meanwhile…
Rep. Louis Gohmert (R-TX) has more than once made the proposal to “PuertoRicanize” DC and remove its residents from Federal Income Tax, so as to beat the “taxation w/o representation” argument. This is disingenuous since (a) there’s more to life than not paying Federal Personal Income Tax, he may be surprised to learn, and (b) nothing prevents already doing what is done in some of the Organized Territories, which is to have them fill and return the IRS 1040, but turn around and hand over whatever it collects there to the local treasury to use rather than send it to the US Treasury, so unless he also gives up Congress’ fiscal control over the DC’s finances that’s “giving” them nothing. (BTW one of the arguments in opposition to DC statehood from the neighboring areas of MD and VA is the expectation that the new state will be rarin’ to sock a hefty commuter tax on all the employees who earn a salary inside the borders but live outside them.)
Are members of the First Family D.C. residents? They go there to live for 4 (and maybe/hopefully 8) years and then go home. They don’t intend to reside in this insular zone indefinitely. How is this any different than me being on work assignment somewhere for a year? I don’t become a resident when my period of service is short and defined. I have to have the intention of making it my home.
Every President and First Lady in my living memory has stayed registered as voters in their “home” state address-of-record (and in Trump’s case, changed that from NY NY to Palm Beach FL) even if no longer actually householding there (e.g. GHWB Bush 41’s hotel suite in Houston). So I was including them, with the stationed military, as people who would be already eligible for absentee status.
How exactly would this work? A two-thirds vote in each house is necessary to send an amendment to the states. The Democrats would not have two-thirds in either house. And three-fourths of the states have to approve the amendment, which would be 39 states, and the Democrats don’t have control over anywhere near that many.
I can’t believe that anyone knowledgeable about today’s politics has this as a “presumption.” A “wish-fulfillment fantasy” maybe, but nothing more.
The presumption on the part of the Bill supporters is that if WDC were to make it to statehood, then but of course the Republicans would be eager to avoid the ridiculous phenomenon of having the rump district have the same three EV’s – and meanwhile it is a near dead certainty that every state house including Douglass’ would be up for cancelling that.
I’ve listened to the debates, man. Supporters have literally stood up and said “that would be the fastest Amendment with the largest margin in history!”
Remember: that is to happen after admission is signed into law.
38, to be picky, but the barrier is the same. Republicans will never, ever vote for something disadvantageous to them, no matter how fair and decent it might be.
Right. So there would be no residents in the new rump District. But you still have the 23rd Amendment out there saying that Congress shall appoint 3 electors that are representative of, now, nobody.
39 once Douglass were admitted, since the 3/4 point would go up to 38.25
Ah. I understand. Or not. I kinda figured this amendment would have to happen BEFORE DC was a state.
Also, 12th Amendment
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves;
So the three electors of the rump District must meet in the rump District and by implication (“themselves”) must be residents of the district…a district where there are no residents.
That is what some opponents are also arguing – that the constitutional provisions that apply to the district are such that they have to be dealt with indivisibly and simultaneously, if not in advance.
Exactly the objection.
Supporters in Congress insist that if they admit now there’ll be time to repeal and not have to run into that.
Total retrocession (if you could force Maryland to accept it) would not have the same problem since if the Federal District simply does not exist there are no electors to appoint. But partial retroession retaining a rump Federal District still would face that issue.
I could see a crafty lawyer making an argument that for these reasons, the D.C. statehood bill is unconstitutional. The 23rd Amendment is as much a part of the Constitution as anything else, and a bill which makes it not only a nullity, but an impossibility, is incompatible with it.
It wouldn’t be an impossibility, it would just be an absurdity. Electors could still be appointed. And that absurdity could be addressed with a Constitutional amendment.
If there can be no residents in the rump District, there can be no electors, therefore an impossibility.
ETA: I suppose Congress could construct housing for three people in the national mall. 
The homeless under the 695 overpasses would not mind, I’m sure.
But that is exactly why the advocates say the repealer amendment would be a no-brainer fast-track approval – set up the absurd situation, then of course no question everyone will get rid of the clause that causes it.
Whether that level of optimism is realistically warranted is left as an exercise for the student.
Of course, I’m just going brain to fingers here as I’m not in front of the Supreme Court, but my first thought would be that those “residences” are illegal, that although the city tolerates them, they do not constitute legal voting residents.
Further, what other bill would the courts uphold in anticipation of a repeal of a portion of the Constitution? Could the Dems (with the permission of CA) divide it into innumerable states of three people each with the idea that it would force the repeal of the electoral college? I think courts would take a dim view of that.
Just did a quick check of what the bill approved yesterday proposes borders-wise. It’s even more restricted than what I had been used to.
The longstanding “New Columbia” map included a bit of “gerrymandering” to keep within the Federal Enclave some larger federal installations near the river, so it extended (via National Parks land and waters) to Ft. McNair, the Navy Yard, and Joint Base Anacostia-Bolling.
The markers laid out by H.R. 51 (from blah blah st. where it crosses the ROW of the railroad SW down to blah blah avenue, round the southern edge of lot 802, etc. etc.) seem to cut off from the Enclave everything south of the train bridge or across waters, meaning the military posts are now in the state and limits the Enclave to just that which is immediately Mall-and-Hill adjacent. So indeed aiming for NO people with a permanent domicile inside the Enclave.