I’ve blogged for a couple of years about voting rights problems with District of Columbia statehood proposals, and my recent piece at RealClearPolicy discusses some of them. I thought I’d give a little detail on one item I mentioned: double voting.

Supporters of D.C. statehood suggest that instead of repealing the Twenty-third Amendment, Congress could choose the electors. The Constitution gives Congress the power to direct the manner of appointing presidential electors, which it has done by allowing D.C. residents to hold a popular vote to choose electors, like all other states. For the first time, Congress would have a direct say over presidential elections.

But if Congress did try to pick its own electors, that would introduce another problem. The Voting Rights Act prohibits individuals from voting twice in the same election. If Congress selects its own presidential electors, then every member of Congress who votes back home would violate the Voting Rights Act. Many states also have rules in place prohibiting voting more than once on Election Day, too.

Amendments to the Voting Rights Act, as classified at 52 U.S.C. § 10307(e), provide:

(e) Voting more than once

(1) Whoever votes more than once in an election referred to in paragraph (2) shall be fined not more than $10,000 or imprisoned not more than five years, or both.

(2) The prohibition of this subsection applies with respect to any general, special, or primary election held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, presidential elector, Member of the United States Senate, Member of the United States House of Representatives, Delegate from the District of Columbia, Guam, or the Virgin Islands, or Resident Commissioner of the Commonwealth of Puerto Rico.

(3) As used in this subsection, the term “votes more than once” does not include the casting of an additional ballot if all prior ballots of that voter were invalidated, nor does it include the voting in two jurisdictions under section 10502 of this title, to the extent two ballots are not cast for an election to the same candidacy or office.

The legislative context in which this provision arose in 1975 focused on dilution of the vote, including in an interstate context. As one legislator put it:

Section 11 of the Voting Rights Act of 1965 currently regulates voter fraud and conspiracy in Federal elections. Severe criminal penalties are provided to punish anyone who knowingly gives false information for the purpose of establishing his eligibility to register or vote. But, no criminal law prohibits anyone from voting twice--and this can occur in at least seven States which have no law prohibiting voting in more than one location. Thus, a person voting in Wyoming could move to Arkansas and register, where he could register within 30 days without having to give up his Wyoming registration. If such a person were to vote twice in a subsequent Federal election, no law would be violated because each registration was procured with true information.

This amendment which I will propose remedies this gap in Federal law by prohibiting, in a new subsection, 11(e), voting more than once in the same Federal election.

I confess, the statute is not a model of clarity. Is it “vot[ing] more than once in an election,” specifically, “any general . . . election held solely or in part for the purpose of selecting or electing any candidate for the office of . . . presidential elector,” if one is voting in both the District of Columbia presidential elector election and, say, the Arizona presidential elector election? Those electors, after all, are two different elections, in theory. But it is one general election, held on the first Tuesday after the first Monday in November. The context weighs in favor of the latter interpretation.

Double voting rules vary by state, too. A clear prohibition on this type of double voting is Arizona:

3. Knowingly votes in two or more jurisdictions in this state for which residency is required for lawful voting and the person is not a resident of all jurisdictions in which the person voted. For the purposes of this paragraph, a person has only one residence for the purpose of voting.

4. Knowingly votes in this state in an election in which a federal office appears on the ballot and votes in another state in an election in which a federal office appears on the ballot and the election day for both states is the same date.

Congress could, of course, alter the dates of elections to give itself the power to choose electors on a different day for the District of Columbia than the rest of the United States. That, I think, seems mischievous, and a reason why Congress created a uniform date for the selection of presidential electors in the early nineteenth century. It’s also not clear that changing the date would evade the Voting Rights Act problem if it is construed as the single “general” election, simply on different dates.

Finally, it’s not clear to me that Congress would be functioning in some legislative or special capacity to exempt itself from these rules. Congress may direct the “manner” of appointing electors. If it directs the manner of congressional appointment, that’s little different, in my judgment, than a rule directing popular appointment, or other such mechanisms of defined appointment.