A Legal Overview of the Battle for D.C. Statehood

by Gabriella Cate

I. Introduction


A crucial tenet in the foundation of our democracy is that there shall be no taxation without representation. However, the current interpretation of the Constitution contradicts this very principle. Article I, Section 8 of the Constitution designates Washington, D.C. as a neutral District, not exceeding ten square miles, which will, “become the Seat of the Government of the United States,” and over which Congress may exercise power in the Power over the Seat of Government Clause.[1] While the argument for statehood for Washington, D.C. seems to violate this clause of the Constitution, proponents of statehood have proposed a multitude of solutions to ensure that the 700,000 Americans living within the District are given the same representation as their counterparts in every other part of the country.



II. History of Governance in Washington D.C.

In 1801, the first District of Columbia Organic Act was passed, allowing the citizens of Washington, D.C. to elect their own local leaders, despite having no representation in the federal government. Under this legislation, residents of the district were able to vote for Representatives in either Maryland or Virginia based on which of the states previously owned the land they lived on.[2] The district was divided into two counties, one containing the city of Washington which would be governed by the state laws of Maryland, and the other containing the city of Georgetown that would be governed by the state laws of Virginia. The legislation also established a local municipality for each county, and a system to elect the mayor by popular vote.

In 1871, the second District of Columbia Organic Act repealed the individual charters of the cities of Washington and Georgetown and replaced the system with a territorial government that extended across both cities, creating one District of Columbia.[3] This act also created a new government, consisting of an appointed governor and eleven-member council, an elected twenty-two member assembly, and a board of public works.[4] Shortly thereafter in 1874, the appointed governor’s position was replaced by a three person Board of Commissioners tasked with governing the city.[5] This District was governed under this system for almost a century.

In the 1960s, the governing structure in Washington, D.C. began undergoing reforms, to become more similar to those of states. The ratification of the 23rd Constitutional Amendment in 1961 gave D.C. representation in the Electoral College, and in 1967, President Lyndon Johnson re-established the single mayor-commissioner of the state. He also created a nine person council of the city, which would serve as the District’s legislative body.[6] However, the District was not granted any representation in Congress until 1971 when it received one non-voting Representative in the House of Representatives.[7] The Home Rule Act was passed in 1973, giving the District the power to elect their own mayor and a thirteen-member council. Although this structure was more democratic than its predecessors, the federal government still exercised control over many key government responsibilities in the District, including the budget, without equal representation.[8]

The peculiarity of this disenfranchisement of D.C. residents prompted Congress to pass an amendment in 1978 to grant voting representation to Washington, D.C.. Since the Constitution, rather than legislation, established the function of the District, such an action required ratification by 38 of the 50 states within seven years of it passing in Congress to become an official amendment. However, by the expiration date, only sixteen states had ratified it, so the Constitution was not amended.[9] Supporters of statehood continue to fight to secure voting representation for the District because as it stands, it is difficult for residents to advocate for an agenda without having representation in Congress.

Aside from the recent push for statehood that emerged as a result of insurrectionist riots on January 6th, the most recent attempt to annex the District as a state was in 1993 when it was proposed to the House of Representatives. At that time, the District had about 580,000 residents, majority of whom Black, and all of whom were paying federal taxes. This attempt was promptly shot down in the House, with all Republicans and 40% of Democrats voting against the bill.[10] Many Representatives of both parties who voted against statehood claimed that they did so because the lack of representation for the District was not a civil rights issue; they argued that residents could leave if they wanted to do so in order to gain representation. Additionally, these Representatives believed the proposal was unconstitutional, citing the Constitutional framework for the purpose of D.C. as a reason for their opposition.



III. Opposition to Statehood


While many people see this lack of representation as an oppressive and undemocratic fixture of our government, those who interpret the Constitution from an originalist perspective hold that Washington, D.C. should continue to be governed under the exact structure outlined in the Constitution. The originalist opinion holds that since the Constitution designates Washington, D.C. as a neutral district, unaffiliated with any party, the District cannot become a state. Although the statehood proposal would leave a small cluster of federal buildings in a neutral government zone to adhere to the Constitution’s framework, people who oppose the proposal believe that the framers of the Constitution, in designating a ten mile radius for the city coupled with the cession of ten square miles from Maryland and Virginia, intended for the District to be as it is today.[11]

Additionally, opponents of the proposal in the House of Representatives highlighted that because of the doctrine of enumerated powers, powers expressly granted to the federal government, Congress may not legislatively create a fifty-first state from the District because it would change the Constitutionally-prescribed status of the District.[12] Originalists also do not believe D.C. residents are disenfranchised because Article I, Section 2 of the Constitution states that representatives are to be chosen “by the people of the several states,” and since Washington, D.C. is technically not a state, its residents do not retain voting rights.[13]



IV. Voter Suppression and Statehood


Nevertheless, the battle for statehood has resurged in recent years alongside anti-voter suppression movements. For many, the lack of representation in Washington, D.C. is an issue of voter suppression. Since the Reconstruction Era, the population of Washington, D.C. has been increasingly made up of African-Americans.[14] Throughout the 1860s and 1870s, they made up about one third of the population; in the 1970s, they made up about seventy percent of the population; and now they make up just under half.[15] If admitted to the union, Washington, D.C. would be the only state with a Black plurality of its population.[16] With the rampant voter suppression already impacting African-Americans disproportionately to the rest of the population through exact match policies, lack of resources for voting in African-American communities, and the rolling back of key protections from the Voting Rights Act,[17] annexing the District would give this population more representation and opportunities to advocate for certain policies in the federal government.

Prior to the implementation of the District of Columbia Organic Act of 1871, all men including Black men who created a very politically active segment of voters, could vote in Washington, D.C.. But this amount of influence threatened those who wanted to keep Black voters suppressed, so they “[denied] the right of suffrage entirely to every human being,” in order to keep African-Americans in D.C. from exercising their right to vote, as stated by Alabama Senator John Tyler Morgan in 1890.[18] D.C. residents have a much higher federal tax rate than many other states, including neighboring Maryland and Virginia.[19] They pay more per capita to the federal government than any state.[20] In addition to paying taxes, residents of Washington, D.C. are eligible to serve in the military, perform jury duty, and start businesses.[21] But unlike the fifty existing states, Washington, D.C. lacks the stability of a state government and is constantly subject to the partisan swings of the federal government that can change its budget and laws.

Essentially, the principle of federalism is absent in D.C. as they have no state government to counterbalance the political agenda of the federal government. Federalism provides residents with a governing body that can advance their interests on a state or local level even if they are not advanced on a federal level. Furthermore, federalism acts as a buffer, preventing the federal government from enacting policies that could be harmful for the residents of any particular state. The 10th Amendment outlines this principle by delegating all powers not delegated to the federal government to the state government.[22] Thus, without an intermediate government in Washington, D.C., residents' well-being and policy agenda is entirely at the discretion of Congress and the federal government, in which they have no representation. Therefore, federalism is an essential democratic system to ensure citizens’ needs are addressed at all levels of government.



V. Recent Statehood Efforts


Due to the numerous repercussions of D.C. not having proper representation, such as an inability for the District to set its own budget, proposals for statehood have persisted. The original plan for statehood at the beginning of the 117th Congress outlined provisions for statehood which would adhere to the criteria in Article I, Section 8 and thus avoid amending the Constitution. This proposal, H.R. 51, would shrink the neutral “seat of the government” that the Founders envisioned to a small enclave containing the National Mall as well as several federal buildings and allow the rest of the district to become a state.[23] However, opponents point out that because five square miles each were ceded from Maryland and Virginia to originally form the district, H.R. 51 could not simply turn that land into a state because it was supplied for the sole purpose of establishing a neural seat of government. Furthermore, they point out that this plan would go against the Founders’ intentions to prevent the government from being inside of any one state since the federal enclave would be located inside the state.[24]

The D.C. Statehood proposal is divided along clear party lines. As of January 2021, over three-quarters of the population of Washington, D.C. self-identifies as Democrat compared to only six percent of the population identifying as Republican and the remaining portion identifying as either third-party or no party at all.[25] Because of the partisan breakdown of the District, many Democrats support D.C. statehood because it would give them an electoral advantage, and many Republicans oppose it for the same reason. However, the tides of partisanship can quickly turn, as seen Hawaii’s statehood, since it was initially very conservative, but is now a Democratic stronghold.



VI. The Historic Precedent for Statehood


The Hawaiian islands were ruled by several warring groups until the early 1800s when they were united under one royal kingdom.[26] Throughout the nineteenth century, as people from Western nations migrated to Hawaii, they forced King Kalākaua to sign a constitution which stripped the kingdom of many of the rights that they had previously exercised, such as owning land. They later formed a “Committee of Safety” to overthrow the monarch and create their own government,[27] which became the Republic of Hawaii, and later, when annexed, the U.S. Territory of Hawaii in 1898. While it was a territory, residents of Hawaii faced many of the same problems that residents of Washington, D.C. are facing today; they only had one non-voting Congressional representative, and they were taxed at high rates.

The fight for statehood in Hawaii lasted for fifty years before the state was eventually admitted to the union in combination with Alaska in 1959. Throughout its battle for statehood, the Territory of Hawaii sent numerous bills to Congress–all of which were denied. In 1937, a congressional committee determined that Hawaii met the qualifications for statehood and held a vote on the matter, which passed.[28] However, it was put on hold until after World War II due to the bombing of Pearl Harbor and the resulting suspicion of Hawaii’s Japanese population. Finally, in the 1950s, Alaska, which leaned Democratic, was granted statehood.[29] As a result, Congress was open to admitting Hawaii, which leaned Republican, to the union as well.[30] Thus, every battle for statehood is to achieve the same goal: fair representation in the U.S. federal government.



VII. Statehood and the Filibuster


Like for Hawaii, the battle for statehood for Washington, D.C. has been long and arduous. But since newly-elected Senators Jon Ossoff and Raphael Warnock of Georgia both support statehood, it is becoming a real possibility. The first step required to pass H.R. 51 is to eliminate the Senate filibuster, which increases the possibility to pass legislation with only a simple majority, rather than needing 60 votes.[31] Pending decisions from some of the more moderate Democratic Senators such as Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona, the Democrats may have the votes to eliminate the filibuster with Vice President Kamala Harris serving as the tie-breaker vote.

If the filibuster is eliminated, the Democratic majority in the Senate could pass H.R. 51 with 51 votes, allowing the District to serve as the seat of government and include a small block of federal buildings such as the Capitol, the Supreme Court, and the National Mall.[32] Additionally, the resolution would repeal the 23rd Amendment that grants D.C. the same number of electors as the least populous state, Wyoming with three electors.[33] Other paths to statehood are much less promising, such as amending the Constitution to allow D.C. to become a state or getting ten Republican votes to pass H.R. 51 in the Senate–both of which are much less plausible than ending the filibuster to get the legislation passed. There are also some less conventional ideas about statehood, namely retrocession, in which the land that makes up Washington D.C., aside from the small federal enclave, would be returned to Maryland and Virginia. However, this would upend political dynamics due to the volume of residents that would be added to each state, and thus would be much less practical than alternative ideas.[34]



VIII. D.C. Statehood and Puerto Rican Statehood


Many statehood advocates also hope that the fight for D.C. statehood will propel the fight for Puerto Rico statehood further. During the past election, a Statehood Referendum was on the ballot in Puerto Rico, and 52% of voters said they wanted Puerto Rico to be admitted into the union.[35] Puerto Rico has been a U.S. Territory since 1898, so its 3.3 million residents are American citizens, but are not guaranteed the same representation as others.[36] Because the territory leans Democratic, it faces the same partisan opposition as Washington, D.C., though there is no constitutional framework that complicates the legality of statehood for Puerto Rico.



IX. Final Thoughts


With the recent state-level voting legislation that has been passed in Georgia and is in the legislatures of other states, statehood advocates now hope to add a statehood provision to the voting rights legislation that is being considered in Congress. Many statehood advocates in the Senate still believe that an independent statehood measure, like the one advocated for at the beginning of the Congressional session, provides the best chance of getting both the statehood and the voting rights legislation passed. However, those in the House hold that the statehood measure may be forgotten in light of the huge Democratic push to pass the voting rights legislation.[37] Thus, at present, there seems to be multiple effective paths to statehood for Washington, D.C.. Despite the objections and challenges to statehood, it is essential to Democracy to annex the District and finally give its 700,000 residents the representation they have lacked for so long.





[1] U.S. Const. art. 1, § 8, cl. 17.

[2] Natalie Delgadillo, Rachel Kurzius & Rachel Sadon, The Past, Present, And (Potential) Future Of D.C. Statehood, Explained, DCɪsᴛ (Sept. 18, 2019), https://dcist.com/story/19/09/18/the-past-present-and-potential-future-of-d-c-statehood-explained/.

[3] William Tindall, Origin and Government of the District of Columbia (1909).

[4] 2 Cong. Rec. 79 (1873).

[5] History of Self-Government in the District of Columbia, Tʜᴇ Cᴏᴜɴᴄɪʟ ᴏғ ᴛʜᴇ Dɪsᴛʀɪᴄᴛ ᴏғ Cᴏʟᴜᴍʙɪᴀ (2009), https://web.archive.org/web/20090331094658/http://www.dccouncil.washington.dc.us/history.

[6] Id.

[7] Randy James, A Brief History of Washington D.C., TIME (Feb. 26, 2009), http://content.time.com/time/politics/article/0,8599,1881791,00.html.

[8] Id.

[9] Id.

[10] Kent Jenkins Jr., House Turns Down Statehood for D.C., Tʜᴇ Wᴀsʜɪɴɢᴛᴏɴ Pᴏsᴛ (Nov. 22, 1993), https://www.washingtonpost.com/archive/politics/1993/11/22/house-turns-down-statehood-for-dc/93c04aac-5635-4c5e-899a-9584e2660650/.

[11] Roger Pilon, D.C. Statehood is a Fool’s Errand, Cᴀᴛᴏ Iɴsᴛɪᴛᴜᴛᴇ (June 5, 2016), https://www.cato.org/commentary/dc-statehood-fools-errand.

[12] Id.

[13] Id.

[14] Becky Little, Why Isn’t Washington D.C. a State?, Tʜᴇ Hɪsᴛᴏʀʏ Cʜᴀɴɴᴇʟ(Jan. 27, 2021), https://www.history.com/news/washington-dc-statehood-reconstruction.

[15] Id.

[16] Muriel Bowser, Why Statehood for D.C., Gᴏᴠᴇʀɴᴍᴇɴᴛ ᴏғ ᴛʜᴇ Dɪsᴛʀɪᴄᴛ ᴏғ Cᴏʟᴜᴍʙɪᴀ (2019), https://statehood.dc.gov/page/why-statehood-dc.

[17] Grace Panetta, How Black Americans Still Face Disproportionate Barriers to the Ballot Box in 2020, Bᴜsɪɴᴇss Iɴsɪᴅᴇʀ (Sept. 18, 2020), https://www.businessinsider.com/why-black-americans-still-face-obstacles-to-voting-at-every-step-2020-6.

[18] Adriel I. Cepeda Derieux, D.C. Statehood is a Racial Issue, ACLU (July 27, 2020), https://www.aclu.org/news/voting-rights/d-c-statehood-is-a-racial-justice-issue/.

[19] Office of Tax and Revenue, D.C. Individual and Fiduciary Income Tax Rates, https://otr.cfo.dc.gov/page/dc-individual-and-fiduciary-income-tax-rates;Lɪᴘsᴇʏ ᴀɴᴅ Assᴏᴄɪᴀᴛᴇs, Differences between D.C., Maryland, and Virginia Taxation, https://lipseyandassociates.com/differences-va-md-dc-taxation/.

[20] Id.

[21] Id.

[22] U.S. Const. amend. X.

[23] Jeff Jacoby, The Constitution Says no to D.C. Statehood, Bᴏsᴛᴏɴ Gʟᴏʙᴇ (June 21, 2020), https://www.bostonglobe.com/2020/06/21/opinion/constitution-says-no-dc-statehood/.

[24] Id.

[25] Monthly Report of Voter Registration Statistics, D.C. Bᴏᴀʀᴅ ᴏғ Eʟᴇᴄᴛɪᴏɴs (Jan. 2021), https://www.dcboe.org/CMSPages/GetFile.aspx?guid=ee6671ba-f5ad-455b-a1a7-d82fe213f3d0.

[26] Jessie Kratz, Hawaii’s Long Road to Statehood, Nᴀᴛɪᴏɴᴀʟ Aʀᴄʜɪᴠᴇs (Aug. 21, 2017), https://prologue.blogs.archives.gov/2017/08/21/hawaiis-long-road-to-statehood/#:~:text=Congress%20ultimately%20decided%20to%20first,statehood%20to%20restore%20political%20balance.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Meagan Flynn & Teddy Amenabar, Could D.C. Become a State? Explaining the Hurdles to Statehood, Wᴀsʜɪɴɢᴛᴏɴ Pᴏsᴛ (Jan. 8, 2021), https://www.washingtonpost.com/dc-md-va/2021/01/08/washington-dc-statehood-faq/.

[32] H.R. 51, 117th Cong. (2021).

[33] U.S. Const. amend. XXIII §1

[34] Id.

[35] Puerto Rico Statehood Referendum (2020), Bᴀʟʟᴏᴛᴘᴇᴅɪᴀ (Nov. 3, 2020), https://ballotpedia.org/Puerto_Rico_Statehood_Referendum_(2020).

[36] Rebecca Pilar Buckwalter-Poza, The 52-State Strategy: The Case for Puerto Rico, Wᴀsʜɪɴɢᴛᴏɴ Mᴏɴᴛʜʟʏ (July 2018), https://washingtonmonthly.com/magazine/july-august-2018/isle-of-opportunity/.

[37] Carl Hulse, D.C. Statehood Backers Want to Be Part of Broad Voting Rights Measure in the Senate, Tʜᴇ Nᴇᴡ Yᴏʀᴋ Tɪᴍᴇs (March 26, 2021), https://www.nytimes.com/2021/03/26/us/dc-statehood-voting-rights.html.

7 views