Signed mostly by law professors, the letter claims that Congress can create this new state from the present District of Columbia, leaving the capital as a tiny enclave around the National Mall, as if the District were not constitutionally mandated to be the seat of the federal government under Article I but were territory from which to create new states under Article IV. And they claim that Maryland’s consent will not be needed, as if Maryland in 1791 would have ceded the land for the purpose of creating a new state, even as its legislation effecting the cession stated expressly that it was done pursuant to Article I’s mandate.
But the letter focuses especially on the troublesome 23rd Amendment. Ratified in 1961, it gives the District three Electoral College votes “[as] if it were a State.” The problem is that there will still be some residents in this tiny enclave, including the first family, and they will have outsized influence on presidential elections. Yet their voting rights, guaranteed by the amendment, cannot be taken away by mere statute. The bill provides for “expedited procedures” for repealing the amendment, but that’s a longshot, given the ratification hurdles, so it also provides for repealing the statutory provision that enables residents to vote.
That, of course, would amount practically to extinguishing the enclave’s residents’ right to vote, so we have a problem here — and the letter airs the scholar’s disagreement about how to solve it. One camp reads the 23rd Amendment as self-enforcing and therefore as mandating the appointment of electors. The other reads it as requiring enabling legislation and so, absent that, there’s no way for those residents to vote — and those scholars appear perfectly happy with that result. Indeed, they claim that because the residents are few, they would not have standing to sue; moreover, this bill provides that they can vote in their last “state” of residence, which of course would little avail life-long District residents.