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DC is closer to becoming a state now than it has ever been

If Democrats take back the White House and the Senate, DC is likely to become a state — but only if they bypass the filibuster.

Del. Eleanor Holmes Norton (D-DC), a leading proponent of DC statehood.
Douglas Graham/Roll Call/Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

The House of Representatives voted 232-180 to grant statehood to the District of Columbia on Friday. That marks the first time in the nation’s history that either house of Congress approved legislation granting full statehood and congressional representation to DC’s more than 700,000 residents.

For at least the next several months, the bill is highly unlikely to travel far beyond the House. There’s little chance that the Republican-controlled Senate will agree to give two senators to an overwhelmingly Democratic city. And even if the bill somehow managed to pass the Senate, President Donald Trump has said that Republicans would be “very, very stupid” to allow DC statehood. He’s all but certain to veto the bill.

But statehood for the District of Columbia, whose residents pay federal taxes but have no vote in Congress, is arguably closer than it’s ever been. Trump trails Democratic presidential nominee Joe Biden, who endorsed DC statehood in 2015, by more than 8 points, according to the RealClearPolitics polling average. Polls now indicate that Democrats have a good chance to regain the Senate as well, despite malapportionment that gives Republicans an unfair advantage in the fight for control of Congress’ upper house.

Not that long ago, DC statehood found little support within the halls of Congress. The last time the House voted on statehood, in 1993, the bill failed 153-277. Democrats, in what now looks like an extraordinary act of political malpractice, did not push statehood when they last controlled both houses of Congress and the White House in 2009-2010. President Barack Obama did not endorse DC statehood until 2014.

But Democratic support for statehood swelled as the party was forced to confront the impact of a malapportioned Senate that overrepresents white and rural states, effectively giving extra seats to Republicans. Among other things, that malapportionment cost Democrats control of the Supreme Court. If the Senate were fairly apportioned, Obama Supreme Court nominee Merrick Garland would be a justice right now.

The recent protests against police violence, and Trump’s decision to deploy federal law enforcement and national guard personnel to the nation’s capital, also bolstered the case for statehood — because DC has less autonomy than a state, it is more subject to the whims of federal leaders. As DC Mayor Muriel Bowser wrote in the Washington Post, “this blatant degradation of our home right before my own eyes offered another reminder — a particularly powerful one — of why we need statehood for the District.”

Indeed, many statehood advocates view their cause as part of the broader struggle that animates the protesters. “The protests across America isn’t just a call for policing reform,” according to Stasha Rhodes, campaign director for 51 for 51, an organization pushing for DC statehood. The protests are “also a call to challenge the very institutions that allow white supremacy and racism. The fact that over 700,000 mostly black and brown people do not have a vote in Congress is racism.”

But even if Democrats dominate November’s election and win majorities in both houses, DC statehood still faces two significant obstacles. One is the filibuster, which could potentially allow Republicans to block statehood with just 41 votes in the 100-member Senate.

If the filibuster is overcome, moreover, it is likely that Republicans will file a lawsuit seeking to strip DC of its statehood. With Republicans controlling the judiciary, that lawsuit has a shot at prevailing, even if it rests on weak legal arguments.

The filibuster may be the biggest obstacle to DC statehood

The filibuster, a practice that allows a minority of the Senate to block legislation, is one of the most consequential accidents in American history. In 1805, shortly after he killed Alexander Hamilton in a duel, Vice President Aaron Burr returned to the Senate to deliver a farewell speech. In that speech, Burr suggested that the Senate make changes to its rules, including eliminating something called the “previous question motion,” a process that was rarely used prior to Burr’s speech. The Senate followed Burr’s advice in 1806.

But eliminating the previous question motion turned out to be a horrible mistake, because this motion was the only process allowing the Senate to cut off debate among its members. No one recognized Burr’s error for 35 years, until 1841, when the first filibuster occurred. Without a way to end debate, rogue senators could delay Senate action indefinitely by insisting on “debating” a proposal forever.

Since this first filibuster, the Senate has changed its rules several times to make it harder to sustain a filibuster. Current rules permit a bloc of 60 senators to end a filibuster using a process known as “cloture,” and invoking cloture to confirm a presidential nominee only requires 51 votes — a simple majority. A process known as “reconciliation” also allows some legislation to pass with only 51 votes, but reconciliation is typically limited to fiscal legislation and is subject to a complicated set of rules.

Absent a very creative interpretation of the rules governing reconciliation, in other words, the DC statehood bill would likely require 60 votes to pass the Senate. So unless Democrats utterly crush Republicans in November, picking up at least 13 seats, Republicans will almost certainly have enough Senate seats to filibuster DC statehood.

Many statehood activists, including some powerful left-of-center organizations, have made overcoming the filibuster their mission. More than two dozen have united under the banner of 51 for 51, a coalition that includes old guard unions like American Federation of Teachers, and rising young organizations such as Indivisible and the judicial reform group Demand Justice. Their goal is to “make DC the 51st state with 51 votes in the Senate.”

“It is no longer enough to just voice your support for DC statehood,” Rhodes, 51 for 51’s campaign director, told me. “You have to have the courage to change the rules, and stand up for the people of Washington.”

Eliminating the filibuster entirely will be difficult. In 2017, 61 senators signed a letter asking Senate leadership to oppose “any effort to curtail the existing rights and prerogatives of Senators to engage in full, robust, and extended debate as we consider legislation before this body in the future.” The effort was led by Sens. Susan Collins (R-ME) and Chris Coons (D-DE), and was joined by more than two dozen Democrats.

Biden’s views on the filibuster are somewhat complicated. 51 for 51 claims him as a supporter, pointing to a video where he agrees with a tracker who asks him if he supports making DC a state “with 51 votes in the Senate.”

But Biden also told the New York Times editorial board that he does not support “abolishing the legislative filibuster.”

These two statements, however, are not necessarily in tension. There is a middle path between eliminating the filibuster entirely and permitting Republicans to filibuster DC statehood — treat statehood bills like confirmation votes.

The ostensible purpose of the filibuster is to allow senators to continue debating a legislative proposal, and potentially to make changes to that proposal. This is one reason it makes sense to exempt confirmation votes from the filibuster’s supermajority requirement. Legislation can be debated and amended by senators, but it’s not like senators can amend a nominee. There is much less for senators to debate when their only choice is to vote “yes” or “no” on a particular individual nominated for a high-level job.

A similar logic could be applied to statehood bills. Such bills aren’t entirely beyond debate — senators might quibble about what to name a state, or its precise borders — but the primary question before the Senate in the DC statehood bill is whether DC should be a state. Statehood is not a subject like, say, health reform, where lawmakers will have strong feelings about details such as whether health plans should cover contraceptive care, or the right amount to spend on training nurse practitioners.

So the Senate could amend its rules to allow new states to be admitted with a simple majority vote, while leaving in place the filibuster for ordinary legislation.

Without some tweaks to the Senate rules to prevent Republicans from filibustering statehood, however, it is likely that DC statehood is doomed.

Republicans will probably ask the Supreme Court to strike down DC statehood

The primary advantage of statehood is that it grants federal representation to the residents of the state. Statehood makes it less likely that the voices of DC residents will be ignored by Congress.

But DC is not entirely bereft of power in federal elections. The 23rd Amendment effectively grants three Electoral College votes to “the District constituting the seat of Government of the United States.” Under this amendment, which was ratified in 1961, DC has as much say in presidential elections as the “least populous State.”

Should DC become a state, however, it is likely that Republicans will seize on this nearly 60-year-old effort to enfranchise DC residents as a reason to disenfranchise those same votes. And, with the Supreme Court controlled by a Republican majority that is often very hostile to voting rights, it is possible that five justices will cite the 23rd Amendment as a reason to deny statehood to DC.

In 1993, the conservative Heritage Foundation published a paper by lawyer R. Hewitt Pate, arguing that DC could not be admitted as a state without a new constitutional amendment. The 23rd Amendment, Pate argued, presents “perhaps the most difficult constitutional problem” facing DC statehood advocates.

Pate claimed that the 23rd Amendment’s reference to “the District constituting the seat of Government” establishes the current District of Columbia as a “permanent constitutional entity.” He also suggested that the 23rd Amendment’s language limiting DC’s electoral votes to the number controlled by the “least populous State” permanently prevents DC from holding more than three electoral votes.

But Pate’s argument makes a hash out of the 23rd Amendment’s text. Though the amendment states that “the District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct . . . a number of electors” (federal and DC law establish that these electors are chosen in a popular election), the amendment never states that the boundaries of this district cannot be expanded or contracted by statehood legislation.

Indeed, the DC statehood bill does not eliminate the “District constituting the seat of Government,” it merely shrinks it to a much smaller area that includes many of the buildings where the federal government conducts official business.

League of Women Voters of the District of Columbia

The 23rd Amendment does create one potential anomaly. If the DC statehood bill passes, the new state would be entitled to representation in the Electoral College just like any other state. Meanwhile, the rump federal district would also be entitled to three electoral votes under the 23rd Amendment.

But there’s an easy fix for this problem. Because the 23rd Amendment provides that the federal district’s electors shall be appointed “in such manner as Congress may direct,” Congress could simply pass a law providing that these three electoral votes will go to whichever presidential candidate would otherwise win the Electoral College — or, even better, Congress could award these three votes to the national popular vote winner, thus reducing the likelihood that the loser of the popular vote will become president.

There is, in other words, no good constitutional argument against DC statehood. As Viet Dinh, who served as an assistant attorney general under President George W. Bush, told a Senate hearing in 2014, “nothing in the Twenty-Third Amendment prohibits the admission of [DC as a state]. Because the [DC statehood bill] will preserve a federal ‘District constituting the seat of Government of the United States.’”

Nevertheless, the Supreme Court is controlled by Republicans — and the Court’s Republican majority is often hostile to voting rights legislation. So there is at least some risk that the Court’s current majority might strike down DC statehood.

Admitting DC would make the United States more democratic

The strongest argument against admitting DC as a state is that DC statehood would, at least on paper, exacerbate the problem of Senate malapportionment. If DC does become a state, it would be the third-least-populous state in the nation. Only Wyoming and Vermont have fewer residents.

As a practical matter, however, admitting the bright blue District of Columbia as a state would help counterbalance the advantage malapportionment gives to Senate Republicans. And it would ensure that hundreds of thousands of Americans are not denied their right to vote.

“From our perspective, the Senate is broken and undemocratic,” Rhodes told me. “There are many examples of this, but the most blatant example is that 700,000 residents of Washington, DC, are not allowed to participate in the democracy that surrounds them.”

In the current Senate, Democrats actually control a majority (26-24) of seats from the most populous half of the states. Republicans owe their Senate majority to their crushing 29-21 lead in the least populous half of the states.

The GOP’s advantage, moreover, is only likely to grow with time. Right now, more than half the country lives in the nine most populous states. By 2040, according to a University of Virginia analysis, half the country is expected to live in just eight states. About 70 percent of the country will live in 16 states — meaning that 30 percent of the population will control 68 percent of the Senate.

Meanwhile, one of the best predictors of partisan voting patterns is population density. Dense regions tend to prefer Democrats, while sparsely populated regions prefer Republicans. As Stanford political scientist Jonathan Rodden describes this phenomenon, “as you go from the center of cities out through the suburbs and into rural areas, you traverse in a linear fashion from Democratic to Republican places.”

Barring a political realignment, in other words, the United States may be barreling toward a future where Republicans enjoy a permanent majority in the Senate — regardless of whom a majority of the country wishes to lead them. Admitting a single urban state probably won’t be enough to level the playing field between Democrats and Republicans in the Senate, but it will mitigate the problem.

Nor is it especially unusual for the party that controls Congress to admit states for political reasons. In 1864, Republican President Abraham Lincoln signed legislation admitting Nevada, then a barely populated desert with a few thousand residents, into the union as a state. Nevada didn’t have many people, but the few people who did live there were overwhelmingly Republican.

A dozen years later, President Ulysses Grant, also a Republican, signed legislation admitting the state of Colorado. According to the most recent census, Colorado had fewer than 40,00 residents when it became a state. Colorado was also dominated by Republicans at the time.

After Republicans defeated Democratic President Grover Cleveland in the 1888 election, they celebrated by splitting the GOP-dominated Dakota into two territories and admitting both of them as states. Today, there are still two Dakotas because Gilded Age Republicans wanted four senators instead of just two.

Meanwhile, Republicans successfully blocked New Mexico from becoming a state until 1912. Cleveland’s Democrats had hoped to admit New Mexico, which favored Cleveland’s party.

These sorts of tactics are the kind of constitutional hardball that political parties have freely embraced in a nation that, nonsensically, gives two senators to every state regardless of population. It would be best if the Senate were abolished, or at least apportioned by population.

But, until that day comes, admitting DC as a state would make the United States more small-d democratic. It would mean that over 700,000 DC residents were no longer disenfranchised. And it would provide a counterbalance to the arbitrary and anti-democratic advantage that Senate Republicans currently enjoy.

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