Can the DC Council pass a law setting term limits on the DC Mayor by ordinary legislation, or does it require a Charter amendment?

Plain-English summary

Mayor Marion Barry was running for and likely to win a fourth term as Mayor in 1990. In response to concerns about extended mayoral tenure, the DC Council was considering Bill 8-6, the "Election Amendment Act of 1989," which would have prohibited an individual from serving more than two consecutive terms as Mayor. The bill was drafted as a regular amendment to DC's elections law, not as a Charter amendment.

Director of Intergovernmental Relations Dwight Cropp asked Corporation Counsel Frederick Cooke whether the Council could enact term limits this way. Cooke had already given testimony on the issue twice, and now committed his analysis to a formal opinion. His answer was no.

The reasoning rests on a constitutional-law principle that has near-universal acceptance: when a constitution creates an office and lists qualifications for it, the legislature cannot add new qualifications by ordinary statute. The District Charter is "analogous to a state constitution." Charter section 421(b) (D.C. Code § 1-241(b)) establishes the qualifications for Mayor: a qualified elector, a one-year DC resident, and not holding other compensated employment or public office. A two-term limit would be a fourth qualification.

This rule has very broad acceptance among American courts. Of 32 states that have ruled on the issue, 28 have held that constitutional qualifications for office are exclusive. The Cooke opinion cites Thomas v. State ex rel. Cobb, 58 So. 2d 173 (Fla. 1952): "if the Legislature possesses the power to vary the constitutional qualifications for office by adding new requirements or imposing additional limitations, then eligibility to office and freedom of elections depend, not upon constitutional guaranties, but upon legislative forbearance." The expression of qualifications "excludes others." Maryland, whose pre-organization law continues to influence DC, has applied the rule in cases like Davidson v. Brice and Humphreys v. Walls. The specific question of term limits has been answered the same way in Buckingham v. State ex rel. Killoran, 35 A.2d 903 (Del. 1944).

The Council's authority over "elections" under § 752 of the Self-Government Act (D.C. Code § 1-1307) does not save the bill. Election authority covers the process of conducting elections, not the qualifications for holding office. Shub v. Simpson, 76 A.2d 332 (Md. 1950), illustrates the line: an affidavit-of-non-subversion law was upheld because it implemented an existing constitutional qualification, not because it added one.

The opinion draws a parallel to the Twenty-Second Amendment, which limited the President's terms by constitutional amendment, not by statute. Both the House and Senate Judiciary Committees emphasized that an issue this important entitled the people to weigh in directly through ratification. Term limits in the 28 state and 4 territorial governorships that have them were imposed the same way: by constitutional amendment, not legislative fiat.

The bottom line: term limits on the DC Mayor require a Charter amendment, which under § 303 of the Self-Government Act (D.C. Code § 1-205(a)) requires a Council-passed act ratified by a majority of registered DC voters in a referendum. Ordinary legislation cannot do it.

What this means for you

If you are a DC Council member

This opinion is the Office of the Attorney General's binding view that constitutional-style qualifications for charter-created offices cannot be modified by statute. Your tools for term limits or other qualifying changes:

1. Pass a Charter amendment. Council passage plus voter ratification under § 303. Slow, requires public buy-in, but constitutionally clean.
2. Address conduct, not qualifications. Statutes can target ethics, financial disclosures, criminal history (within constitutional limits), and the election process itself, all without amending the Charter.
3. Encourage primary competition. Term limits are not the only check on incumbent advantage. Open primaries, public financing, and contested debates serve similar accountability functions.

If you are an advocate for term limits

Your campaign needs both Council passage and voter ratification. Plan a multi-year effort: drafting a Charter amendment, building Council support, then a ballot referendum. Several DC term-limit proposals have failed at one of these gates over the past 30 years, in part because the dual approval is hard.

If you are a DC voter or candidate

Mayoral qualifications are: registered DC voter, DC resident for at least one year before the election, and not holding other compensated employment or public office (with limited exceptions). There is no term limit for the Mayor as of 2026, and this opinion explains why one cannot be enacted without a Charter amendment.

If you are a constitutional law student or researcher

This opinion is a clean application of the expressio unius canon to constitutional qualifications. The 28-states-to-3-states split (with one anomalous state) shows the deep entrenchment of the rule. The opinion's careful distinction between qualifications (Charter-set, not modifiable by statute) and election process (Council-modifiable under § 752) is a useful framework for any state-constitutional analogue.

If you are an election administrator

When the DC Board of Elections receives a candidate filing for Mayor, the relevant qualifications check is § 421(b)'s three criteria. Term-limits checks are not applicable absent a successful Charter amendment.

Common questions

Q: Has there ever been a successful DC Mayor term limit Charter amendment?
A: As of 2026, no. DC has had unsuccessful term-limits proposals over the years. The Council has not passed and DC voters have not ratified a Mayor-specific term-limit Charter amendment.

Q: What about Council member term limits?
A: Same analysis. Council member qualifications are also set by the Charter (D.C. Code § 1-1303). Term limits on Council members would similarly require a Charter amendment.

Q: Did Bill 8-6 ever pass?
A: No. Bill 8-6 did not become law. Subsequent term-limit proposals have either been recast as Charter amendments or have failed.

Q: How is the District Charter "amended"?
A: Under § 303 of the Self-Government Act (D.C. Code § 1-205(a)), the Council passes an act, and a majority of registered qualified DC electors must ratify the act in a referendum.

Q: What does the President's term limit (Twenty-Second Amendment) have to do with this?
A: The opinion uses it as an analogy. The U.S. Constitution sets qualifications for President (Art. II, § 1). Congress could not impose a presidential term limit by statute; a constitutional amendment was required. The same principle applies to charter-created offices like the DC Mayor.

Q: What if the Charter is silent on a particular qualification?
A: The opinion notes a corollary principle from Estes v. Jones, 48 S.E.2d 99 (Ga. 1948): if the constitution sets no qualifications, the legislature can. So if the Charter were silent on Mayor's qualifications, the Council could presumably set them. But § 421(b) sets three explicit qualifications, which makes the list exclusive.

Q: Is this opinion still good law in 2026?
A: Yes. The Charter has not been amended to add term limits to the Mayor. The legal framework has not changed. Any contemporary term-limit proposal for the DC Mayor must take the Charter-amendment route.

Background and statutory framework

The DC Charter is the structural framework of DC government, set out in Title IV of the Self-Government Act (Pub. L. 93-198, 87 Stat. 774). Section 421(b) establishes the qualifications for Mayor:

An individual must be a qualified elector, a resident and domiciliary of the District for one year prior to election, and, with certain exceptions, may not be otherwise employed for compensation or hold other public office.

Charter amendments are governed by § 303 (D.C. Code § 1-205(a)): "The Charter may be amended by an act passed by the Council and ratified by a majority of the registered qualified electors of the District voting in the referendum held for such ratification."

The Council's authority over elections comes from § 752 (D.C. Code § 1-1307), which lets the Council legislate "with respect to matters involving or relating to elections in the District." That authority is broad over the process of elections (who can vote, how votes are counted, what registration is required, what disclosures candidates must make), but it does not extend to qualifications for charter-created offices.

The "constitutional qualifications are exclusive" rule has deep roots. The leading early statement is from Thomas v. State ex rel. Cobb, 58 So. 2d 173 (Fla. 1952), which the opinion quotes at length:

[I]f the Legislature possesses the power to vary the constitutional qualifications for office by adding new requirements or imposing additional limitations, then eligibility to office and freedom of elections depend, not upon constitutional guaranties, but upon legislative forbearance.

The annotation at 34 A.L.R.2d 155 (1954) collected the cases and reported that 28 of 32 ruling states had adopted the rule. The opinion draws particularly on Maryland authority because of Maryland's continuing influence on DC law (Watkins v. Rives; Gerace v. Liberty Mutual). Maryland's Davidson v. Brice (oath of office), Humphreys v. Walls, Quenstedt v. Wilson, and Kimble v. Bender (residency for justice of peace) all hold that constitutional qualifications are exclusive.

Term-limit specifics are addressed in Buckingham v. State ex rel. Killoran, 35 A.2d 903 (Del. 1944), where the Delaware Supreme Court invalidated a statute disqualifying a state judge from running for elective office during his term and for six months after, on the ground that the statute "just as effectively added to the qualifications of office" and was beyond legislative authority. Estes v. Jones, 48 S.E.2d 99 (Ga. 1948), upholds a school-board term limit but only because the Georgia constitution set no qualifications for the office.

The Council's elections authority does not save Bill 8-6. Shub v. Simpson, 76 A.2d 332 (Md. 1950), drew the line clearly: a statute requiring candidates to file a non-subversion affidavit was upheld because the Maryland constitution itself disqualified subversive individuals; the affidavit was a tool to identify those already disqualified, not an additional qualification. Bill 8-6 went the other way: it added a qualification not present in the Charter.

The Twenty-Second Amendment analogy underlines the point. When Congress wanted to limit the President's terms, it proceeded by constitutional amendment (H.J. Res. 27, ratified 1951). The House and Senate Judiciary Committees emphasized that "an issue as important as this entitles the people to have a voice in its resolution" through ratification. The same democratic legitimacy concern applies to Charter-amendment ratification by DC voters.

The conclusion: Bill 8-6, as drafted, exceeded the Council's authority. Term limits on the Mayor require a Charter amendment with voter ratification, not ordinary legislation.

Citations and references

Statutes:
- DC Self-Government Act, Pub. L. 93-198 (Title IV, Charter; § 303 Charter amendment; § 421 office of Mayor; § 421(b) qualifications; § 752 elections authority)
- D.C. Code §§ 1-205(a), 1-241, 1-1307

Cases:
- Thomas v. State ex rel. Cobb, 58 So. 2d 173 (Fla. 1952), leading statement of constitutional-qualifications rule
- Buckingham v. State ex rel. Killoran, 35 A.2d 903 (Del. 1944), term limits invalid as added qualification
- Estes v. Jones, 48 S.E.2d 99 (Ga. 1948), term limits upheld where constitution silent on qualifications
- Shub v. Simpson, 76 A.2d 332 (Md. 1950), election-process authority does not extend to adding qualifications
- Davidson v. Brice, 91 Md. 681 (1900); Humphreys v. Walls, 169 Md. 292 (1935); Quenstedt v. Wilson, 173 Md. 11 (1937); Kimble v. Bender, 173 Md. 608 (1938), Maryland line on additional qualifications
- Thomas v. Owens, 4 Md. 189 (1853), Maryland origin of the rule
- Watkins v. Rives, 75 U.S. App. D.C. 109, 125 F.2d 33 (1941); Gerace v. Liberty Mutual Insurance Co., 264 F. Supp. 95 (D.D.C. 1966), Maryland decisions entitled to weight in DC
- Techworld Development Corp. v. D.C. Preservation League, 648 F. Supp. 106 (D.D.C. 1986), substantial deference to Corporation Counsel opinions

License

This opinion is published by the Office of the Attorney General for the District of Columbia. Per the DC.gov terms of use, content is licensed under Creative Commons Attribution 3.0, which permits commercial use, redistribution, and modification with attribution.

Source

• Original PDF: https://oag.dc.gov/sites/default/files/2018-02/Opinion-July-2014-Mayoral-Term-Limits.pdf

Original opinion text

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OFFICE OF THE CORPORATION COUNSEL
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February 8, 1989

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REPLY REFER TO:

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OPINION OF THE CORPORATION COUNSEL
SUBJECT:

Authority of the Council of the District of
Columbia to limit the number of terms an
individual can serve in the office of Mayor.

Dwight S. Cropp
Director
Office of Intergovernmental Relations
District Building
Washington, D.C.
20004
Dear Mr. Cropp:
As you know, Bill 8-6, the "Election Amendment Act of
1989," currently pending before the Council of the District of
Columbia, would amend the District's elections law to prohibit an
individual from serving more than two consecutive terms as Mayor.
The office of Mayor is established in the District Charter, set
out in Title IV of the District of Columbia Self-Government and
Governmental Reorganization Act (Self-Government Act), 87 Stat.
774, Pub. L. 93-198 (codified in scattered sections of the D.C.
Code). A limitation on the number of terms one can serve in the
office of Mayor is in effect an additional qualification for that
office. In my opinion, any change in the qualifications for
holding the office of Mayor requires an amendment to the District
Charter and cannot be accomplished by ordinary legislative act of
the Council.
I have expressed my views to the Council's Committee on
Government Operations on two occasions. 1 However, because Bill

1 See Statements of Frederick D. Cooke, Jr. on Bill 7-338
and Bill-a=6 at public roundtables before the Committee on
Government Operations held January 28, 1988 and February 2, 1989.

2
8-6 raises significant Charter concerns, I am transmitting this
formal opinion in order to layout the legal support and analysis
which formed the basis for the position previously taken. 2
It is a well established principle of law that where a
constitution creates an office and sets forth the qualifications
for that office, a legislature has no power to vary those
qualifications, absent an explicit or implied grant of
authority. 3 As explained in Thomas v. State ex rel Cobb, 58 So.
2d 173 (Fla. 1952), (cited at 34 A.L.R.2d 140, 152 (1954):
. • . [I]f the Legislature possesses the
power to vary the constitutional
qualifications for office by adding new
requirements or imposing additional
limitations, then eligibility to office and
freedom of elections depend, not upon
constitutional guaranties, but upon
legislative forbearance.
If the Legislature
may alter the constitutional requirements,
its power is unlimited, and only such persons
may be elected to office as the Legislature
may permit.
In our judgment, when the
2 Opinions of the Corporation Counsel have been accorded
substantial deference by the courts. See Techworld Development
Corp. v. D.C. Preservation League, 648 F. Supp. 106 (D.D.C. 1986)
(" . . • opinions rendered by the Corporation Counsel concerning
the application of the [Height of Buildings Act of 1910] are
entitled to substantial deference, and should only be overturned
by this court if they are plainly unreasonable or contrary to
legislative intent.")
Administratively, the written opinion of
the Corporation Counsel "in the absence of specific action by
the [Mayor] or Council to the contrary, or until overruled by
controlling court decision, shall be the guiding statement of
law, to be followed by all District officers and employees in the
performance of their official duties." See Reorg. Order No. 50
(June 26, 1953), D.C. Code Title 1 App. (1973).
3 A corollary principle of law is that a state constitution
is a limitation on the exercise of power not a grant of power.
Therefore, the state legislature may enact any law not expressly
or impliedly forbidden by the state constitution or prohibited by
the United States constitution.
See 11 Am. Jur. 2d
Constitutional Law § 194.
Howeve~a state constitution cannot
be changed, modified, or amended by legislative fiat.
It
provides within itself the only method of amendment, which
operates as an express limitation on the power of the state
legislature.

3

constitution undertakes to prescribe
qualifications for office, its declaration is
conclusive of the whole matter, whether in
affirmative or in negative form. . . . The
expression of the disabilities specified
excludes others. The declaration in the
Constitution that certain persons are not
eligible to office implies that all other
persons are eligible.
The overwhelming majority of state courts that have
considered the question have held that where a constitution fixes
specific eligibility requirements for an office, those
requirements are regarded as exclusive. See' cases collected at
Annotation, Legislative Power to prescribe-Qualifications for or
Conditions of Eligibility to Constitutional Office, 34 A.L.R.2d
155 (1954). Of those 32 states that have ruled on the issue, 28
states have adhered to this rule.
In 3 states an opposite
conclusion was reached on the facts but it was unclear to what
extent the cases represented a disagreement with the general
rule. A single decision repudiated the rule in dictum.
District of Columbia courts have never addressed this
question. However, Maryland courts have considered the issue,
and Maryland decisions are often looked to for assistance by
courts in the District of Columbia, since Maryland law predating
the organization of the District of Columbia continues to have
force in the District. See,~, Watkins v. Rives, 75 U.S. App.
D.C. 109, 125 F.2d 33 (1941); Gerace v. Liberty Mutual Insurance
Co., 264 F. Supp. 95 (D.D.C. 1966) (Maryland decisions entitled
to great weight).
The general principle -- that where a constitution sets
forth qualifications for an office, the legislature may not add
to those qualifications -- was first recognized in Maryland in
dicta in Thomas v. OWens, 4 Md. 189 (1853) (cited at 34 A.L.R.2d
200 (1954)), construing a constitutional provision permitting the
legislature to prescribe the oath and bond required for holding a
particular constitutional office. In that case the constitution
had specifically authorized the legislature to prescribe the oath
and bond requirements. The court explained that without such a
provision, the legislature would have been prohibited from
imposing that additional qualification, and noted the foresight
of the framers of the constitution in permitting the legislature
to deal with the issue as necessary through enactment of a
statu~e, rather than being restricted to seeking a constitutional
amendment to add those requirements.
Later Maryland cases have uniformly held that the
legislature may not prescribe additional qualifications where the
qualifications for office are set forth in the constitution."
These cases dealt with imposition of a residency requirement and

4
imposition of an additional oath of office. See Davidson v.
Brice, 91 Md. 681 (1900) (constitution set forth oath of office
and expressly prohibited legislature from prescribing additional
oath as qualification for office; additional oath prescribed by
legislature for statutory office unconstitutional); Humphreys v.
Walls, 169 Md. 292, 181 A. 735 (1935); Quenstedt v. Wilson, 173
Md. 11, 194 A. 354 (1937); and Kimble v. Bender, 173 Md. 608, 196
A. 409 (1938) (all holding unconstitutional statutory residency
requirements for justice of the peace where residency was not
among the qualifications specified in the constitution).
The specific issue of limiting the successive number of
terms an officer may hold has been construed by several courts.
In Buckingham v. State ex reI. Killoran, 35 A.2d 903 (Del. 1944),
the Delaware Supreme Court invalidated a statute disqualifying a
state judge from being a candidate for elective office during his
term of office and for six months after leaving office, observing
that where a constitution creates an office and prescribes the
qualifications that the incumbent must possess the legislature
has no power to add to these qualifications, and found that the
statute just as effectively added to the qualifications of
office, and as such was beyond the authority of the legislature.
Even where a statute prohibiting certain school board
members from succeeding themselves or being eligible for another
term for a period of two years following the expiration of their
terms was upheld, the Supreme Court of Georgia relied on the
general principle that a legislature may not add to the
qualifications of office where the constitution sets forth the
qualifications. In Estes v. Jones, 48 S.E.2d 99 (Ga. 1948), the
Court ruled that the legislature's imposition of this additional
qualification was valid specifically because the constitution set
forth no qualifications for the office, thus leaving that
authority to the legislature.
The District Charter, enacted as part of the SelfGovernment Act, is analogous to a state constitution. Section
421 of the Charter, D.C. Code § 1-241 (1987), establishes the
office of Mayor of the District of Columbia. Section 421(b)
establishes three qualifications for holding the office of Mayor:
An individual must be a qualified elector, a resident and
domiciliary of the District for one year prior to election, and,
with certain exceptions, may not be otherwise employed for
compensation or hold other public office. Bill 8-6 would
essentially add a fourth qualification:
that an individual has
not served two successive terms immediately preceding the
election. The District Charter does not empower the Council of
the District of Columbia to vary these requirements, either by
adding additional requirements or dispensing with existing
requirements, without going through the Charter amendment

5

procedure outlined in the Self-Government Act. 4
The authority of the Council under section 752 of the SelfGovernment Act, D.C. Code § 1-1307 (1987), to legislate "with
respect to matters involving or relating to elections in the
District" extends to the process of conducting elections. The
fact that Bill 8-6 is drafted as an amendment to the District's
elections law rather than an amendment to the charter does not
change its basic character, which is a modification to the
qualifications for holding office. The amendment in no way
addresses the conduct of the election but defines who may hold
office without reference to the procedures for attaining that
office.
A Maryland case illustrates the difference.
In Shub v.
Simpson, 76 A.2d 332 (Md. 1950), the Court of Appeals of Maryland
upheld a statute requiring a candidate for office to file an
affidavit stating that he is not subversive, notwithstanding a
lack of legislative authority to require an oath of office in
addition to that prescribed by the Maryland constitution. The
Court held that the affidavit was not an oath of office. The
constitution itself disqualified subversive individuals from
holding office. The candidate's affidavit was merely a tool for
identifying persons disqualified from holding office, and was
thus within the legislature's authority to protect the integrity
of the election process. The provision before the Council, to
the contrary, goes not to the process (i.e., how a qualified
individual may attain office), but to the individual's
eligibility to hold that office under any process. This is
beyond the Council's authority, notwithstanding its clear
authority to legislate with respect to elections.
Finally, I note that the terms of the President of the
United States were limited by amendment to the Constitution, not
by legislative act of the Congress of the United States. In the
legislative history of the joint resolution of Congress proposing
the amendment (H.J. Res. 27), both the House and Senate
Committees on the Judiciary expressed the view that an issue as
important as this entitles the people to have a voice in its
resolution. See H. REP. No. 17 (Feb. 5, 1947), and SEN. REP.
No. 34 (Feb. 21, 1947), 80th Cong., 1st Sess., reprinted in u.S.
CODE CONGo & ADMIN. NEWS 1013, 1014.
In addition, each of the 28 states and 4 out of 5 United
States Territories that have imposed upon its governor a
4 The Charter "may be amended by an act passed by the
Council and ratified by a majority of the registered qualified
electors of the District voting in the referendum held for such
ratification." See section 303 of the Self-Government Act, D.C.
Code § 1-205(a) (1987).

\

6

limitation on serving successive terms have done so by
constitutional amendment.
Since Bill.8-6 does not provide for ratification by a
majority of the registered qualified electors of the District, as
required under the Charter amending procedures, it exceeds the
scope of the legislative authority granted the Council under the
Self-Government Act.
Sincerely,

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Frederick D. Cooke, Jr.
Corporation Counsel

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