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?
Thursday, February 05, 2009
Legislating Around The Constitution, Part One
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7 comments:
Gosh, twice in one day, and from opposite sides.
Well, I tried to post an admittedly snide response to Brian Griffiths' cow pattie post, but Sheriff Streiff decided to rustle me outta town. So I'll pretty it up and post it here.
The Constitution doesn't give "states lots of leeway in how it chooses its electors," Marc, it gives COMPLETE leeway. Here's the language of Article II, Section 1:
i>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...
While it's often assumed that there is a "right" to vote for president, t'ain't so. The state legislature has the right to decide how to pick the electors, and in the early years of the republic, often did so itself. While the more modern trend is for statewide elections, there's no constitutional requirement for elections.
The Supreme Court in Bush v. Gore, 531 U.S. 98 (2000), is clear about this.
i>The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U.S. Const., Art. II, §1. This is the source for the statement in McPherson v. Blacker, 146 U.S. 1, 35 (1892), that the State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. Id., at 28—33.
So the authority isn't just "wide," it's "plenary," which dictionary.com defines as "full; complete; entire; absolute; unqualified."
If the legislature can take away the vote altogether and choose the electors itself, why can't it take the less drastic step of allowing a vote and simply including a greater pool of voters (everyone in the country) in the determination of who actually gets the electoral votes?
Contrary to what you suggest, nobody is being deprived of the "right to vote," first, because per Bush v. Gore, there is no inherent federal constitutional right to vote, but second, because everyone still gets to vote, and nobody is disenfranchised.
As for the question of whether it "makes sense to legislate around entire sections of the Constitution," I have two responses.
First, as I demonstrate above, there are two sections that are in play here: the boundless discretion of state legislatures and the electoral college. Both are on equal footing, and neither is superior. NPV violates neither, because it is wholly consistent with Article II, Section 1 and doesn't change the Electoral College. Electors still are chosen, electors still meet, and the electoral college votes still get tabulated. The fact that a different result might occur after NPV than before its enactment is irrelevant, just as would be the case in a situation where a Republican state legislature chose to appoint electors even though its state voting population clearly favored a Democratic presidential candidate (that would suck, but it wouldn't make the process unconstitutional).
Second, legislation, unlike constitutional provisions, are more ephemeral in that they can be changed by subsequent legislatures if and when they choose to do so. If a future Maryland General Assembly doesn't like NPV, it can get rid of it by passing a law and convincing the future governor to sign the law into effect.
I am an NPV supporter, but I see the arguments against it: it puts more power in larger urban areas than in more remote, less populated rural areas, it dilutes the effectiveness of individual states within the electoral college, and the like (to move for a minute to the purely political, let me note that these "problems" actually benefit Democrats, tilting away from a bias in favor of smaller red states).
The sanctity of the Constitution, however, is not, IMHO, an effective argument against NPV. As noted, there currently is a bias in favor of smaller, more conservative states. Constitutionally speaking, why should that be? And if we can change it to make the system more balanced and fair, why shouldn't we do it?
The small states are the most disadvantaged of all under the current system of electing the President. Political clout comes from being a closely divided battleground state, not the two-vote bonus.
Small states are almost invariably non-competitive in presidential election. Only 1 of the 13 smallest states are battleground states (and only 5 of the 25 smallest states are battlegrounds).
Of the 13 smallest states, Idaho, Montana, Wyoming, North Dakota, South Dakota, and Alaska regularly vote Republican, and Rhode Island, Delaware, Hawaii, Vermont, Maine, and DC regularly vote Democratic. These 12 states together contain 11 million people. Because of the two electoral-vote bonus that each state receives, the 12 non-competitive small states have 40 electoral votes. However, the two-vote bonus is an entirely illusory advantage to the small states. Ohio has 11 million people and has "only" 20 electoral votes. As we all know, the 11 million people in Ohio are the center of attention in presidential campaigns, while the 11 million people in the 12 non-competitive small states are utterly irrelevant. Nationwide election of the President would make each of the voters in the 12 smallest states as important as an Ohio voter.
The fact that the bonus of two electoral votes is an illusory benefit to the small states has been widely recognized by the small states for some time. In 1966, Delaware led a group of 12 predominantly low-population states (North Dakota, South Dakota, Wyoming, Utah, Arkansas, Kansas, Oklahoma, Iowa, Kentucky, Florida, Pennsylvania) in suing New York in the U.S. Supreme Court, arguing that New York's use of the winner-take-all effectively disenfranchised voters in their states. The Court declined to hear the case (presumably because of the well-established constitutional provision that the manner of awarding electoral votes is exclusively a state decision). Ironically, defendant New York is no longer a battleground state (as it was in the 1960s) and today suffers the very same disenfranchisement as the 12 non-competitive low-population states. A vote in New York is, today, equal to a vote in Wyoming--both are equally worthless and irrelevant in presidential elections.
The concept of a national popular vote for President is far from being politically “radioactive” in small states, because the small states recognize they are the most disadvantaged group of states under the current system.
The National Popular Vote bill already has been approved by a total of seven state legislative chambers in small states, including one house in Maine and both houses in Hawaii, Rhode Island, and Vermont. It has been enacted by Hawaii.
The normal way of changing the method of electing the President is not a federal constitutional amendment, but changes in state law. The U.S. Constitution gives "exclusive" and "plenary" control to the states over the appointment of presidential electors.
Historically, virtually all of the previous major changes in the method of electing the President have come about by state legislative action. For example, the people had no vote for President in most states in the nation's first election in 1789. However, nowadays, as a result of changes in the state laws governing the appointment of presidential electors, the people have the right to vote for presidential electors in 100% of the states.
In 1789, only 3 states used the winner-take-all rule (awarding all of a state's electoral vote to the candidate who gets the most votes in the state). However, as a result of changes in state laws, the winner-take-all rule is now currently used by 48 of the 50 states.
In other words, neither of the two most important features of the current system of electing the President (namely, that the voters may vote and the winner-take-all rule) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation's first presidential election.
In 1789, it was necessary to own a substantial amount of property in order to vote; however, as a result of changes in state laws, there are now no property requirements for voting in any state .
The normal process of effecting change in the method of electing the President is specified the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes. The abnormal process is to go outside the Constitution, and amend it.
What the current U.S. Constitution says is "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . ." The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as "plenary" and "exclusive."
Evidence as to how a nationwide presidential campaign would be run can be found by examining the way presidential candidates currently campaign inside battleground states. Inside Ohio or Florida, the big cities do not receive all the attention. And, the cities of Ohio and Florida certainly do not control the outcome in those states. Because every vote is equal inside Ohio or Florida, presidential candidates avidly seek out voters in small, medium, and large towns. The itineraries of presidential candidates in battleground states (and their allocation of other campaign resources in battleground states) reflect the political reality that every gubernatorial or senatorial candidate in Ohio and Florida already knows--namely that when every vote is equal, the campaign must be run in every part of the state.
Further evidence of the way a nationwide presidential campaign would be run comes from national advertisers who seek out customers in small, medium, and large towns of every small, medium, and large state. A national advertiser does not write off Indiana or Illinois merely because a competitor makes more sales in those particular states. Moreover, a national advertiser enjoying an edge over its competitors in Indiana or Illinois does not stop trying to make additional sales in those states. National advertisers go after every single possible customer, regardless of where the customer is located.
Lefty,
Great points. And I'm a little nervous that Red Maryland and I have have posts on the same issue.
I was a bit vague in my use of "the constitution does give states lots of leeway in how it chooses electors." You are right that the Supreme Court has never found a constitutional right to vote for president and if you look back at how it was done until I think as late as the 1820s, many states determined their electors through the legislature.
That said, the right to vote in general has developed quite a bit throughout our history. In the 1790s, it was constitutionally permissible to limit the right to vote to property owners. Until the 20th century, if memory serves, literacy tests were found constitutional. Now, there would likely be a 9-0 decision by the Supreme Court finding laws like that unconstitutional.
You point to dicta in Bush v. Gore (a case that specifically says it does not set precedent for future cases, which is a whole other argument) which quotes an 1892 case. My argument to you is that if the issue went before the Supreme Court today, they would be viewing the issue through a different prism than in 1892, Bush v. Gore's dicta notwithstanding. Despite what strict constructionist would argue, rights do develop and change over time and historical context matters. I chose the words "lots of leeway" because I think there is a good chance a court in this era would not find it so complete. But, I could just as easily be wrong.
As I said in the post, I support elimination of the Electoral College and if this is the way it has to get done, then I guess I'll take it. But I think a cleaner approach is a constitutional amendment.
Thanks for the great comments.
-Marc
P.S. the founder of this blog has an interesting op-ed on the topic from the Washington Post: http://voices.washingtonpost.com/annapolis/2009/02/kramer_and_navarro_set_to_run.html?wprss=annapolis
Or rather, here's the Lublin op-ed: http://www.washingtonpost.com/wp-dyn/content/article/2007/07/15/AR2007071501108.html
But feel free to talk about Ben Kramer and Nancy Navarro too.
Mvymvy,
You raise some good points and I really like your discussion of the small states.
I'm not sure I agree that the state legislatures are where all the action is. Constitutional amendments have lowered the voting age, enfranchised women, enfranchised African Americans, and given DC electoral votes. While in some of those cases states acted individually to reach the same result, I think a federal standard makes a lot more sense.
Also, when states have acted they have not been acting around the Constitution. The Constitution does not mention ownership of property or oppose winner take all. The states were operating in a completely uninhibited sphere. In the case of the Electoral College, that isn't the case.
-Marc
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