I’ve previously discussed the District of Columbia statehood bill, H.R. 51, and how, I think, D.C. statehood (or retrocession of D.C. to Maryland) should be contingent on a repeal of the Twenty-Third Amendment. The bill would carve out most of D.C. as a new state, but the remaining tiny enclave of federal buildings would remain, and that enclave would be entitled to three electoral votes.

One problem is a politically sticky first-mover question. If you condition statehood on repeal, a handful of states can effectively block statehood; if you grant statehood and hope for repeal, it may never happen.

I’ve tried to figure out what the remaining enclave looks like. The D.C. planning commission offers a sketch of that proposed residual district as of 2016. It mostly (but not entirely!) tracks with Census Tract 62.02, which, as of the 2010 census, had 33 inhabitants, and around 60 inhabitants as of 2018. This is imperfect, because it’s not entirely aligned with the census tract. And it doesn’t tell us how many are eligible voters. But it’s my start. And a 60-person jurisdiction receiving 3 electoral votes is, shall we say, suboptimal.

Under the Twenty-Third Amendment, Congress has power to choose how to award D.C.’s electors. So some have proposed interesting alternatives: give the votes to the winner of the Electoral College, or the winner of the national popular vote (if there’s such a thing). Another suggestion is that Congress doesn’t have to award them at all, which might lead to denominator problems in ascertaining a “majority” of the Electoral College. Now, the Twelfth Amendment says “majority of the whole number of electors appointed,” so perhaps those three aren’t counted as “appointed,” and we have (at least here) no problem.

But what Congress says it will do today isn’t necessarily what it’ll do tomorrow. There remains the possibility of Congress choosing three electors on its own, which seems to open up opportunities for mischief if we invite Congress to decide what to do with those electors. Since the Twenty-Third Amendment, Congress has assumed the people of D.C. vote for those electors. Shifting the power back to Congress invites a parliamentary-style choice. Only three electoral votes, but nevertheless congressional influence.

Section 206 of the bill anticipates this problem and provides for expedited repeal of the Amendment. But, there’s no guarantee that 2/3 of each house of Congress and 3/4 of the states would agree—or agree in time for a least one presidential election.

H.R. 51 also anticipates that there will be eligible voters remaining in the seat of government. Section 204 anticipates giving the remaining residents (33, 60, or some other tiny figure) the power to vote in federal elections. It says those residents are permitted to vote by absentee in the state where they last resided. (No word on what happens to those who never resided in another state.)

But this remedy in Section 204 is, in my view, constitutionally suspect. Congress has no power to establish voter qualifications—certainly not under the Elections Clause, as the Supreme Court said in Arizona v. Inter Tribal Council of Arizona, Inc., and perhaps not elsewhere. Of course, other Supreme Court precedents, like Oregon v. Mitchell, have approved congressional rules on voter qualifications, like reducing the federal voting age to 18 and establishing minimum residency rules for presidential elections. The Uniformed and Overseas Citizens Absentee Voting Act does the same, but, as Professor Brian Kalt has, in my view, persuasively argued, is likely unconstitutional (even if exceedingly popular).

For Congress to extend this residual group of inhabitants voting rights—and by compelling states to accept them as voters—would raise, I think, a significant constitutional question. Granted, there’s case law on Congress’s side, as well as a similar (and exceedingly popular) statute for uniformed and overseas citizens—litigation challenging Section 204 might sweep away much more than Section 204. But it remains, I think, a challenge to consider.

Finally, Section 205 is misleadingly titled, “Repeal of law providing for participation of District of Columbia in election of President and Vice-President.” All this does is repeal a conforming amendment to the Electoral Count Act of 1887, which sets the rules for Congress counting electoral votes from the states. It treats D.C. as a “state” for purposes of the rule. Repealing this statute doesn’t really do anything. Congress still has to count votes from D.C. under the Twenty-Third Amendment, if cast; if Congress casts those votes, then it has to count those votes, too, regardless of whether the Electoral Count Act gives express guidance of how to do so. Prior to the Electoral Count Act, Congress built up its own body of rules that, well, collapsed in the Election of 1876. The Electoral Count Act doesn’t “provid[e]” for D.C.’s participation in federal elections, and this section is only a technical provision that helps after the Twenty-Third Amendment is repealed.

In short, there are some election law problems with D.C. statehood absent a repeal of the Twenty-Third Amendment, and other problems that persist for the remaining few inhabitants in the residual district.