FOOTNOTES TO AMENDMENT XXII

1. Congressional Record, 80th Congress, 1st Session, 1947, 93, Pt. 2: 1952-1953. 2. Ibid., 851.

Ibid., 1953-1954.

4. Ibid., 848.

5. Ibid., 849.

6. House Report No. 17, 80th Congress, 1st Session, 1947.

7. Congressional Record, 80th Congress, 1st Session, 1947, 93, Pt. 2: 841.

8. Ibid., 841-872.

9. Senate Report No. 34, 80th Congress, 1st Session, 1947.

10. Congressional Record, 80th Congress, 1st Session, 1947, 93: 1611.

11. Ibid., 1862.

12. Ibid., 1944-1959.

13. Ibid., 1959-1963.

14. Ibid., 1978.

15. Ibid., 2389-2392.

16. Ibid., 2432.

17. Virginia Commission on Constitutional Government, The Constitution of the United States, (Richmond, 1965), 39.

TEXT OF AMENDMENT

SECTION 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

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, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

SEC. 2. The Congress shall have power to enforce this article by appropriate legislation.

BACKGROUND

When the Twenty-third Amendment was proposed in Congress, the District of Columbia had over 800,000 residents-a population greater than thirteen of the States. Those who lived in the Nation's capital had all the obligations of citizenship, including payment of Federal and local taxes and service in the armed forces. Yet they were prevented from voting in national elections, since the U.S. Constitution reserved that privilege to residents of the States.

During the debates of the Constitutional Convention of 1787, it was urged that some provision be made in the Constitution for a seat of government under exclusive Federal control. It was also suggested that this seat of government be located independently of any State capital, since placing the two governments in the same city would tend "to produce disputes concerning jurisdiction" and because the intermixture of the two legislatures would give "a provincial tincture" to the national deliberations. The proposal was adopted and was included among the enumeration of congressional powers in Article I, Section 8, Clause 17 of the Constitution:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful buildings.

In 1788 and 1789, both Maryland and Virginia ceded territory to the Federal Government. The Congress then, through laws signed on July, 16, 1790 (1 Stat. 130) and March 3, 1791 (1 Stat. 214), established the District of Columbia, which in turn was declared the Nation's capital in the election of 1800.1

Because the District of Columbia was not a State, it was denied suffrage in Federal elections. This decision was based on Article II, Section 1 of the Constitution, which states in part:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.

Since the clause mentions only "States" as eligible to appoint electors, it was interpreted in such a way as to deny the citizens of the District of Columbia the privilege of voting in Federal elections.

LEGISLATIVE HISTORY

This interpretation of the Constitution remained unchallenged for nearly 170 years. It began to change, however, with the introduction of S.J. Res. 39 (86th Cong.) by Senator Estes Kefauver of Tennessee on January 29, 1959.2 Interestingly, Senator Kefauver's resolution, which would eventually evolve into the Twenty-third Amendment, initially had nothing to do with voting rights in the District of Columbia. Indeed, the stated purpose of the Resolution

was:

To amend the Constitution to enable the executive authority of each State to make temporary appointments to fill vacancies in representation in the House of Representatives whenever such vacancies exceed half the authorized membership of that body.3

Such a resolution stemmed from concerns at this time regarding the appointment of members to the House of Representatives in case a large number of that body were killed in a nuclear attack. The Constitution already provided for the appointment of the President, Vice President, and Senators but did not mention a method for appointing Representatives. A statement from the Senate report on S.J. Res. 39 further clarifies its intent:

When the Constitution was drafted, the ability to destroy people on a mass basis by use of weapons of war had not been developed. It was, therefore, highly unlikely that the membership of the House of Representatives could be so decimated as to render that body incapable of exercising its constitutional functions. Indeed, the Founding Fathers had no basis on which to predicate any such assumption. Regrettably, this is not the situation today.*

The original purpose of S.J. Res. 39 was soon to become intertwined with two other contemporary social issues. As mentioned earlier, what would later become the Twenty-third Amendment was totally unrelated to the emergency appointment of members to the House of Representatives.

After its introduction, S.J. Res. 39 was referred to the Senate Committee on the Judiciary. The Committee in turn reported the Resolution favorably on July 22, 1959. Once on the floor, Senator Spessard L. Holland of Florida proposed an amendment to abolish State poll taxes or property qualifications as prerequisites to voting rights in the Federal elections.5 Senator Kenneth B. Keating of New York then proposed an additional amendment giving residents of the District of Columbia the right to vote in Presidential elections. The Keating Amendment also sought to grant the District of Columbia representation in the House of Representatives.6 On February 2, 1960, both amendments passed easily in the Senate, 70 to 18, 12 not voting."

The measure was then sent to the House of Representatives and referred to the House Judiciary Committee on February 3, 1960. The Committee deleted the first two provisions of S.J. Res. 39

those pertaining to the temporary appointment of Representatives and the prohibition of poll taxes and property qualifications as prerequisites to voting in Federal elections. Also deleted was the provision granting representation in the House of Representatives to the District of Columbia. As amended, the Resolution was reported out of the Judiciary Committee on May 31, 1960 and passed in the House on June 14 without a rollcall vote. The Senate adopted the House amendments, without further amendment, on June 16.9

RATIFICATION HISTORY

On June 21, 1960, the proposed Twenty-third Amendment, ultimately modified to grant Electoral College representation to the District of Columbia, was submitted to the States for ratification. With 50 States now in the Union, a total of 38 States were required to ratify, and in the unusually short period of 9 months the process was completed. Only the Twelfth and Twenty-first Amendments had required less time for ratification. The ratification dates of each State that ratified the Twenty-third Amendment appear below:

On March 29, 1961, an unusual occurrence took place. By this date, 36 States had ratified the Amendment. Within an hour, the legislatures of New Hampshire, Kansas, and Ohio, respectively, voted to ratify. It appeared then that Kansas had supplied the necessary 38th ratification. New Hampshire, discovering that Ohio would not officially complete its ratification until noon on March 30, rescinded its own ratification of March 29. New Hampshire then reratified the Amendment at 11:00 on the morning of March 30, therby laying claim as the 38th State to ratify.

Arkansas was the only State to reject the Amendment, on January 24, 1961. The remaining States took no action on the measure. On April 4, 1961, John L. Moore, the Administrator of General Services, issued the certificate of adoption proclaiming the Twentythird Amendment as part of the Constitution.10 It appears officially as 74 Stat. 1057.