Not granting DC and Puerto Rico statehood would be anti-democratic

At first blush, the fight to recognize the District of Columbia as a state seems like a local, inside-the-beltway debate. But as I recently discussed in an interview with D.C.’s “shadow” Sen. Paul Strauss (D), the question of D.C. statehood impacts every American who cares about the viability of our democracy, which is deeply in peril these days. 

It’s a matter of simple math. Adding two seats to the U.S. Senate could dislodge the gridlock that has national policy reform by the throat. Couple that with statehood for one or more of the five major U.S. territories — Puerto Rico, Guam, American Samoa and the Northern Mariana Islands — and entrenched politicians might have to hustle for votes based on policy platforms again. Expanding congressional representation to all Americans would also help blot the racist stain associated with U.S. colonialism. In the struggle against anti-democratic forces that threaten American democracy, the time has come for a national debate over adding states to the union.

America is scarcely four months away from its near-demise on Jan. 6, when 147 Republican members of Congress voted to overturn legitimate election results and a violent mob of then-President Trump’s supporters stormed the Capitol complex, killing five people in a professed bid to “Hang Mike Pence.” House members are close to reaching agreement on the terms of a bipartisan commission to investigate the Capitol insurrection, but the former president continues to spew lies about a stolen election, Republicans in the House just fired Rep. Liz Cheney (R-Wyo.) from her party leadership post for publicly adhering to the truth and the rule of law, and conservative lawmakers across the country continue to successfully push laws to limit ballot access and criminally disincentivize folks from working the polls. Things are not looking good for democracy in the United States.

Much of the blame lies at the feet of the Senate which, partly due to the filibuster, is disproportionately controlled by Republicans whose 50 votes represent 41.5 million fewer people than the 50 votes of their Democratic counterparts. As a result, serious substantive legislation can hardly make its way to President Joe Biden’s desk, including much-needed campaign finance, government ethics and voting rights reform, versions of which have been languishing in the Senate.

There are a number of legal obstacles to D.C. statehood, to be sure, which differ from those that encumber U.S. territories. For D.C., at least three provisions of the U.S. Constitution are implicated. As former Sen. Russ Feingold (D-Wisc.) wrote recently for The Hill, Article IV, Section 3 of the Constitution provides that “New States may be admitted by the Congress into this Union,” which has occurred 37 times in the nation’s history — most recently in 1959, with the addition of Alaska and Hawaii. Article 1, Section 8, clause 17 authorizes Congress to “exercise exclusive Legislation in all Cases whatsoever, over [the] District (not exceeding ten Miles square),” and deems it “the Seat of Government of the United States.” Finally, the 23rd Amendment gives D.C. a “number of electors of President and Vice President equal to the whole number of Senators and representatives in Congress to which the District would be entitled if it were a State.” 

Last month, the House Committee on Oversight and Reform voted to pass H.R. 51, which would grant statehood to the people of the District of Columbia. A similar bill is pending in the Senate. Although the legal questions are complex, there is nothing in the original Constitution that gives obvious “textualist” grounds for a conservative-leaning Supreme Court to strike down Congress’s authority to legislate D.C. statehood in the event such legislation passed. Until 1801, D.C. residents had voting rights through Maryland and Virginia, and as the late D.C. District Court Judge Louis Oberdorfer explained in a dissenting opinion to a case denying D.C. statehood per se, nothing in the Constitution retracts that right expressly. If Congress were ever to make D.C. a state, the Supreme Court should be exceedingly circumspect about disenfranchising D.C. voters as a matter of judicial proclamation.

Arguably, the proper legal fate of territories like Puerto Rico is even clearer. In Downes v. Bidwell, the court in 1901 held that Congress has virtually unlimited power over Puerto Rico and other territories, which it characterized as “inhabited by alien races.” The court reasoned that these islands were “foreign in a domestic sense” and governing them “according to Anglo-Saxon principles may for a time be impossible.” 

Scholars have criticized this line of cases — known as the “Insular cases” — as treating colonialism as compatible with democracy, a premise that is out-of-step with modern sensibilities (although arguably consistent with white supremacy). This is the same court that decided in Plessy v. Ferguson that state-mandated segregation was constitutional, an egregious misfire that was overruled in 1952 by Brown v. Board of Education. As the late Judge Juan R. Torruella, who sat on the U.S. Court of Appeals for the First Circuit, wrote for the Yale Law Journal in 1998, “that Puerto Rico has a ‘representative’ in Congress without a vote is not only a pathetic parody of democracy within the halls of that most democratic of institutions, but also a poignant reminder that Puerto Rico is even more of a colony now than it was under Spain.”

Given the Democratic tilt of D.C. residents, a majority of which are people of color, House Minority Leader Kevin McCarthy (R-Calif.) has called D.C. statehood “just Democrats’ latest attempt at a power grab.” But it’s a mistake to stereotype expanding the union as a partisan question. Puerto Rico’s voting record isn’t dominated by a particular political party, so Republicans could pick up seats in Congress in a state of Puerto Rico. Moreover, a 2019 poll revealed two in three Americans as supporting statehood for Puerto Rico. An April 2021 survey showed 40 percent backing the idea of making D.C. a state; around three in 10 voters remain undecided. 

Hopefully, a solid majority of Americans still favors government by “We the People” over the stealth version of authoritarianism that Republican leaders are now serving up under the guise of voter fraud. So spread the word: Statehood for D.C. and Puerto Rico would be good for democracy itself.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Follow her on Twitter and Instagram @kimwehle.