Legislating Around The Constitution, Part One

By Marc Korman.

Maryland is at the forefront of two pieces of legislation, one state and one federal, which creatively use statutes to deal with issues that are arguably constitutional. Maryland is one of four states to have adopted the National Popular Vote legislation into law, part of a reform effort to eliminate the Electoral College. Nationally, Maryland Congressman Steny Hoyer is leading the effort to give Washington, DC a voting member of the House of Representatives. In Part 1, we will examine the National Popular Vote. In Part 2, we will take a look at the DC House member reform effort. While I support both statutory efforts because of their noble goals, I hope they launch a constitutional amendment process that settles these issues more decisively.

The National Popular Vote would effectively eliminate the Electoral College without amending the Constitution. Four times in US history the winner of the popular vote did not win the Electoral College, most recently in 2000. That election has led to sustained efforts to reform or eliminate the Electoral College. Many, including myself, view the Electoral College as an anachronistic institution that can subvert the democratic result of the only national election we hold. Of course, there are forceful arguments on the other side that the Electoral College ensures small states get a voice in presidential elections. I’m not sure Delaware, Rhode Island, Vermont, Hawaii, Wyoming, North Dakota, South Dakota, Alaska, Montana, and Maine, nine of the ten smallest states by population, would agree. I’m not sure a presidential candidate has visited those states during a general election in my lifetime.

Constitutional Amendments have been proposed in Congress to move to a national vote. But an amendment requires 2/3 of both the House and the Senate (or 2/3 of special state conventions that have never been used) to pass it and then three quarters of the states must ratify it. No Electoral College amendment has ever come close to that threshold.

The National Popular Vote proposal provides that states pledge their electoral votes to the winner of the national popular vote. It does not require every state to join, but rather becomes effective once states with electoral votes totaling 270 sign on. Of course, 270 is a majority of the electoral votes, the amount needed to win the Electoral College. That ensures that the participating states would be able to swing the election. To explain how this would work in practice, if the agreement had been in force in 2004, the electoral votes of Maryland would have gone to President Bush since he won the popular vote. That would happen regardless of how President Bush did in Maryland.

Thus far, Maryland, Illinois, New Jersey, and Hawaii have put the proposal into law. But it has also passed through twenty-two different legislative chambers and received the endorsement of 1,246 state legislators. In Maryland, the legislation passed the Senate 29-17 and the House 85-36 before being signed by the Governor. In Montgomery County, Senator Mike Lennett and Delegate Luiz Simmons were the only nay votes. Then Delegate Marilyn Goldwater was absent from the vote.

The proposal is clever and provides a method to eliminate the Electoral College while avoiding the timely, and possibly futile, Constitutional amendment process. Of course, a court could potentially find the law unconstitutional. The Constitution does give states lots of leeway in how it chooses its electors, but there is also a substantial body of voting rights law that may clash with state electoral votes going for a candidate the state did not vote for. There is also an open constitutional question as to whether states can bind those chosen as electors by law, or whether they can act independently.

But even if the law is constitutional, as legal scholar and State Senator Jamie Raskin has argued, what type of precedent does it set? Does it make sense to legislate around entire sections of the Constitution? What other creative ways will state legislature’s find to ignore Constitutional provisions?