Rep. Norton: Granting D.C. Statehood Doesn’t Require Repeal of 23rd Amendment

Congresswoman Eleanor Holmes Norton (D-DC), a former tenured professor of constitutional law, released the following explanation
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Congresswoman Eleanor Holmes Norton (D-DC), a former tenured professor of constitutional law, released the following explanation on why the 23rd Amendment, which allows the federal district to participate in the Electoral College, does not need to be repealed before Congress could grant statehood to the District of Columbia.

Norton said, “Those who make such an assertion are conflating a policy choice and a constitutional requirement.

“First, no new state was admitted by constitutional amendment. All 37 new states were admitted by Congress, and there has never been a successful constitutional challenge to the admission of a state. The Constitution commits admission decisions solely to Congress.

“Second, neither the text of the District Clause of the Constitution, which gives Congress plenary authority over the federal district, nor the text of the 23rd Amendment establishes a minimum geographic or population size, or even a location, of the federal district. Under both clauses, Congress has the authority to reduce the geographic and population size of the federal district, as the D.C. statehood bill would do.

“Third, even though the 23rd Amendment does not need to be repealed before D.C. statehood, some scholars have argued that the 23rd Amendment would be nullified under the D.C. statehood bill, either because the bill would repeal the enabling statute for the amendment, or because the bill would lead to the unreasonable result of allowing the reduced federal district to participate in the Electoral College.

“Fourth, even though the 23rd Amendment does not need to be repealed before D.C. statehood, we expect Congress and the states to quickly repeal the amendment to prevent the reduced federal district from participating in the Electoral College.

“Fifth, even though the 23rd Amendment does not need to be repealed before D.C. statehood, Congress may have discretion in how it awards the electoral votes. The 23rd Amendment provides that the federal district “shall appoint” electors “in such manner as the Congress may direct.” Congress could choose, for example, to award the electors to the winner of the Electoral College or the national popular vote to prevent the reduced federal district from controlling electoral votes.”

On April 22, 2021, the House passed Norton’s D.C. statehood bill, the Washington, D.C. Admission Act (H.R. 51), which would admit the State of Washington, D.C. and reduce the size of the federal district. That was the second time in history a chamber of Congress had passed the D.C. statehood bill. House passage last year was the first. The Senate version (S. 51), sponsored by Senator Tom Carper (D-DE), has a record 44 cosponsors.

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