WASHINGTON — The Biden administration has quietly approached congressional Democrats about a potential change to their high-profile but long-shot effort to transform most of the District of Columbia into the nation’s 51st state, according to executive and legislative branch officials.
The bill, which passed the House last month but faces steep odds in the Senate, would admit the residential and commercial areas of the District of Columbia as a new state and leave behind a rump federal enclave encompassing the seat of government, including the Capitol, White House, Supreme Court, other federal buildings and monuments.
The deliberations center on the Constitution’s 23rd Amendment, which gives three Electoral College votes in presidential elections to the seat of government. If it is not repealed after any statehood, the bill would try to block the appointment of the three presidential electors. But the administration is said to have proposed instead giving them to the winner of the popular vote.
Officials familiar with the discussion spoke on the condition of anonymity, citing the political delicacy of the matter at a time when Republicans have been raising legal and policy objections to granting statehood to the District of Columbia’s 700,000 residents. Such a step would create two additional Senate seats that Democrats would most likely win, as well as grant a vote to the lone representative in the House.
But a White House lawyer acknowledged the interbranch dialogue among Democrats, saying: “Admitting D.C. as a state is comfortably within Congress’ power — arguments to the contrary are unfounded. But we also think there are ways to allay the concerns that have been raised, and that’s why we’re working with Congress to make the bill as strong as possible.”
In late April, the White House endorsed the statehood bill in a policy statement. But a little-noticed line also hinted that part of the legislation, known as H.R. 51, had given President Biden’s legal team pause.
“The administration looks forward to working with the Congress as H.R. 51 proceeds through the legislative process to ensure that it comports with Congress’ constitutional responsibilities and its constitutional authority to admit new states to the Union by legislation,” it said.
If political conditions ever shift enough that the Senate someday approves granting statehood to the District of Columbia — which would become the smallest state by land area, though its population exceeds Vermont and Wyoming — Republican-controlled states are widely expected to sue to challenge its constitutionality.
The Supreme Court might dismiss such a case on the grounds that it raises the sort of question that the politically elected branches must decide. In 1875, it rejected a case challenging the 1845 retrocession to Virginia of a former part of the district partly on such logic. But if the justices were to reach the legal merits, they would confront several novel issues.
Democrats are said to generally agree that two legal objections Republicans have raised to the bill — that Maryland might have to approve statehood because the land was in that state’s jurisdiction before 1790, and that it might be unconstitutional to shrink the size of the federal enclave holding the seat of government — are less serious threats. They see those arguments as not supported by the explicit text of the relevant portions of the Constitution.
But how best to navigate the 23rd Amendment if it is not repealed gave the administration legal team greater pause, officials said. The amendment says the seat of the federal government “shall” appoint three presidential electors.
It is not clear how many, if any, potential voters would be left there. The only residence in the rump federal enclave would be the White House; presidential families traditionally choose to vote in their home states, but nothing forces them to do so. In theory, homeless people might also claim residency in the envisioned enclave.
As a fallback if the amendment is not swiftly repealed, the statehood bill would make two changes by statute: Legal residents of the enclave — if there are any — could vote by absentee ballot in their previous states, and legal procedures for appointing any electors would be rescinded.
But an opponent of the bill, Roger Pilon, a former Reagan administration official and a legal scholar at the libertarian Cato Institute, argued that this mechanism would not work. Congress, he said in prepared House testimony this year, cannot use a statute to eliminate a constitutional directive, nor to take away people’s constitutional rights.
Democrats are discussing changing the bill to use a different mechanism. Instead of trying to block the appointment of electors for the federal seat, Congress would enact a law designating them in a particular way. (The 23rd Amendment says the federal seat’s presidential electors shall be appointed “in such manner as the Congress may direct.”)
One possibility is to add those three votes to the total of whichever candidate has otherwise won the Electoral College. Another is to award them to the winner of the national popular vote, which in a very close election might change the outcome.
It is unclear whether such a change would reflect legal concerns or the notion that it would be a wiser policy approach.
As a matter of political reality, giving the electors to the winner of the popular vote might spur Republican-controlled state legislatures to cooperate in swiftly repealing the amendment rather than obstructing the effort out of partisan pique: Since 2000, Republican presidential candidates have twice won the Electoral College despite losing the popular vote.
The popular vote idea was proposed last year by two Columbia University law professors, Jessica Bulman-Pozen and Olatunde Johnson.
Ms. Bulman-Pozen, who worked in the Justice Department’s Office of Legal Counsel during the Obama administration, said that she thought the Supreme Court would hold that the existing bill was constitutional, but that she did not believe it was as “elegant” as bestowing those electoral votes on the winner of the popular vote.
“I don’t think it’s the best fit with the text,” she said of the bill’s current approach, adding, “Congress has other options it should consider — even if it hopes for repeal of the 23rd Amendment.”
But Mr. Pilon expressed skepticism about the proposed revision, too, arguing that it would undercut the spirit of the 23rd Amendment.
“The whole deal is an extraordinarily convoluted effort to get around the fact” that the District of Columbia “was never contemplated to be the source of a future state,” he said.
The deliberations are playing out against the backdrop of growing — yet incomplete — support in the Democratic Party for statehood. Advocates are trying to shore up that support to lay groundwork for someday passing the bill if conditions change.
“I am actively engaging with my Democratic and Republican colleagues to make the case for D.C. statehood because this is not a partisan issue, but an issue of basic fairness and equal representation for all citizens,” said Senator Thomas R. Carper, a Delaware Democrat who has picked up the mantle for the cause in the Senate.
A chief obstacle is the Senate filibuster rule; the votes of 10 Republicans and all 50 Democrats would be needed to overcome it. Even as the bill has a record number of Democratic co-sponsors, including Senator Jeanne Shaheen of New Hampshire this week, four lawmakers have not signed on, according to Mr. Carper’s office. Those four include Senator Kyrsten Sinema of Arizona, who sits on the evenly divided committee responsible for processing the legislation.
Another, Senator Joe Manchin III, Democrat of West Virginia, recently told a radio show that he believed a constitutional amendment was needed to admit the District of Columbia as a state. He cited the history of debate over ways to give full representation to its residents, including comments by some prominent Democratic legal officials in the 1960s and 1970s.
Other Democrats, however, have pointed out that the context of those historical comments centered on proposals that were different than this era’s idea.
On the day of Mr. Manchin’s remarks, the district’s nonvoting representative and the chief sponsor of the bill in the House, Eleanor Holmes Norton, a delegate, issued a statement that sought to rebut the idea that amending the Constitution was necessary. As part of that argument, she raised the alternative approach that the Biden team has been privately urging.
“Congress could choose, for example, to award the electors to the winner of the Electoral College or the national popular vote to prevent the reduced federal district from controlling electoral votes,” she declared.