Electors for the District of Columbia
Section 1. 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.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
The inability of the citizens of the District of Columbia to participate in federal elections has been controversial since the federal seat of government of the United States came into existence in 1800. In 1960, Congress rectified the situation concerning the district’s participation in presidential elections by passing the Twenty-third Amendment. It enables the district to participate in presidential and vice-presidential elections in the same manner in which the states participate in those elections. The states swiftly ratified the proposed amendment in time for the district to cast electoral votes in the presidential election of 1964. The amendment did not address the district’s lack of representation in Congress.
The legislative history of the amendment makes clear that the drafters sought to provide the seat of government of the United States, the District of Columbia, with the same method of selecting presidential electors in the Electoral College as the states employed to select their presidential electors. The legislative history also reveals that some of the key drafters were ignorant of the relevant constitutional history concerning the manner in which the states had selected their presidential electors. Early in U.S. history, some states chose electors by district, others by the state legislature, and others by a “winner-take-all” system. Despite this confusion, the Twenty-third Amendment clearly provides Congress the same leeway as the state legislatures in enacting the electoral vote selection procedures for the district.
The amendment contains some sui generis provisions. The amendment expressly caps the district’s electoral votes at the number equal to the least populous state. This, in effect, providesthe district with three electoral votes regardless of the population of the district. In addition, because the parallel constitutional provisions grant the respective state legislatures with plenary power over the method of selection of the presidential electors, a like power was necessarily given to Congress. The House report accompanying the amendment notes that “[t]he language follows closely the language of article II of the Constitution.”
Although not constitutionally required, Congress, by statute, has adopted a winner-takeall system, in which the winner of the plurality of votes receives all of the district’s presidential electors. Such winner-take-all systems have been enacted in all the states except for Maine and Nebraska. Recently, controversies over the Twenty-third Amendment have arisen as part of efforts for district statehood or to provide the district with representation in the federal legislature. For example, if Congress, by statute, accepted the District of Columbia as the State of New Columbia, and the present “seat of government of the United States” was not eliminated but reduced to a small federal enclave containing the White House and the federal Mall, what would become of the Twenty-third Amendment?
Many district-statehood and district–voting-rights proponents generally seek to avoid amending the Constitution because of the difficulties of obtaining congressional approval and state ratification. They contend that the Twenty-third Amendment would become a “dead letter” without the necessity of formal repeal by constitutional amendment, because there would be virtually no residents left in the federal enclave. On the other hand, “the Seat of Government of the United States,” the entity designated in the amendment to receive electoral votes, would still exist in its geographically reduced form. That constitutional entity, absent constitutional repeal, would still be constitutionally entitled to the electoral votes under the Twenty-third Amendment. Any congressional effort to repeal the enabling legislation without repealing the Twenty-third Amendment would likely face constitutional difficulty. For example, the concept that any constitutional provision can be deemed a “dead letter” by legislation runs contrary to basic principles of the American constitutional structure. Additionally, such a scenario could imply that a state legislature could exercise like authority and act to disenfranchise its citizens from participation in the Electoral College.
For decades, these concerns seemed academic and hypothetical. However, the 2000 presidential election and the controversy over Florida’s electoral votes renewed focus on a state’s constitutional prerogatives concerning the manner and selection of presidential electors. Those constitutional developments necessarily inform Congress’s parallel obligations under the Twenty-third Amendment.
In addition, in an effort to assure that the popular vote winner is elected president, but without amending the Constitution, a National Popular Vote bill has been proposed. This bill, in the form of an interstate compact, would take effect only when enacted, in identical form, by states possessing at least 270 electoral votes—enough to elect the president. The bill would award each enacting state’s electoral votes to the presidential candidate who has received the most popular votes. The bill has been enacted by nine jurisdictions, including the District of Columbia, that possess 132 electoral votes. The District’s enactment may be problematic. Ultimately, based on the express terms of the Twenty-third Amendment, Congress, not the D.C. City Council, has the final word on the electoral vote selection procedure for the District of Columbia.
After the People Vote: A Guide to the Electoral College (Walter Berns ed., rev. 1992)
Adam Harris Kurland, Partisan Rhetoric, Constitutional Reality, and Political Responsibility: The Troubling Constitutional Consequences of Achieving D.C. Statehood by Simple Legislation, 60 Geo. Wash. L. Rev. 475 (1992)
Office of Legal Policy, U.S. Department of Justice, Report to the Attorney General on the Question of Statehood for the District of Columbia (April 3, 1987)
1 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 3.6(c) (5th ed. 2012)
Explanation of National Popular Vote Bill, at http://nationalpopularvote.com/pages/explanation.php
McPherson v. Blacker, 146 U.S. 1 (1892)
Williams v. Rhodes, 393 U.S. 23 (1968)
Adams v. Clinton, 90 F. Supp. 2d 35 (D.D.C. 2000), aff'd, 531 U.S. 941 (2000)
Bush v. Gore, 531 U.S. 98 (2000)
Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000)