Is the Interstate Voting Compact Unconstitutional?
Carroll Andrew Morse
Not exactly. There are, however, potential Electoral College ramifications for states that choose to participate.
The Interstate Voting Compact is an attempt to bypass the Electoral College and elect the President of the United States through a direct popular vote. A state legislature signing on to the compact agrees to disregard the choice made by its own state’s voters in a Presidential election and allocate the electoral votes under its control to the winner of the national popular vote. For example, had Rhode Island been a party to the compact in 2004, Rhode Island’s four electoral votes would have been given to national popular vote winner George W. Bush even though a majority of Rhode Islanders cast ballots for John Kerry.
This scheme is acceptable under Article II of the U.S. Constitution which gives state legislatures carte-blanche authority to choose their state’s Presidential electors…
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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
But does this really mean that the power of state legislatures to choose the President is absolute? Hypothetically, state legislatures might decide to cut voters entirely out of the process. A legislature could mandate, for example (and not entirely inconceivable in Rhode Island), that its electors vote for the nominee of the Democratic party, no matter the result of the vote at any level. Would this too be legal?
Under Article II, the answer is yes. However, any system that bypasses a state's voters brings another section of the Constitution into play. Section 2 of the Fourteenth Amendment also has something to say about electing Federal officials, President included…
Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
In extreme cases, this means that if no citizen votes are counted in a Presidential election process, then no citizens are counted towards a state’s total representation either; a state that ignores its citizens when allocating its electors loses representation in the Electoral College -- and possibly in the House of Representatives.
The problem with the Interstate Voting Compact is that it abridges the right of state voters to choose their Presidential electors nearly as egregiously as an ignore-the-voters-completely scheme does. To understand this, consider some other systems acceptable under the letter of Article II. The Rhode Island legislature could decide to allocate Rhode Island’s electoral votes according to the decision of a 10 member blue-ribbon commission of experts chosen in a nationwide search. But then the right of Rhode Islanders to select their Presidential electors would have been completely abridged and the Fourteenth Amendment would mandate that Rhode Island lose representation.
How about a hybrid system for choosing Presidential electors? The people of RI would get to cast ballots for their Presidential preference. A national blue-ribbon commission would also get to make a selection and the choice of the blue-ribbon panel would be awarded a certain number of “bonus” votes in the final tally -- perhaps more bonus votes than there are voters in Rhode Island! But since the wishes of Rhode Islanders would now be only one factor (and perhaps a very minor factor) in choosing Rhode Island’s Presidential electors, the right of Rhode Islanders to choose their Presidential electors would have been abridged, and the Fourteenth Amendment would mandate that Rhode Island lose representation.
The Interstate Voting Compact is no different from the above scheme, except in the size of the commission being used to award the bonus votes. Under the terms of the compact, every Rhode Islander’s voice in choosing Rhode Island’s Presidential electors is diluted by a factor of about 300. According to the Fourteenth Amendment, Rhode Island’s representation must be reduced correspondingly.
The exact nature of the reduction in representation is open to some interpretation. Here are a few possibilities…
- A state abridging the right of its citizens to choose its Presidential electors by joining the interstate voting compact could lose Electoral College representation in terms of its citizens counted towards the House of Representatives, but since no state can drop below one Rep, no state could be reduced below a minimum of 3 electoral votes.
- "Representation" in Section 2 of the Fourteenth Amendment could also be interpreted to directly apply representation in the Electoral College, so a state joining the interstate compact could conceivably forfeit all of its electoral votes.
- "Representation" could be taken to apply to representation in the Electoral College and the House of Representatives, so states joining the compact could have both their electoral votes and their number of Representatives reduced.
Whether opponents of the Electoral College like it or not, the Constitution mandates that Presidential electors are to be chosen by individual states (Article II) by a democratic process involving the people within those states (Amendment XIV). To reduce the voice the voters within any state have in choosing their Presidential electors by including factors from out-of-state is to abridge the Constitutionally specified value of their votes, which the Fourteenth Amendment states cannot be done without penalty.
On Wednesday, the Rhode Island House Judiciary Committee voted to hold a bill that would have Rhode Island join the Interstate Voting Compact for further study.
"Further study" usually translates as "burial."
Let's hope so in this case.
I don't think that is a reasonable reading of the amendment. It seems to me that it must be read as saying, if there is a popular election for presidential electors, you can't deny the vote to certain citizens. It doesn't require a popular election for presidential electors any more than it requires popular elections for "judicial officers".
This attempt to circumvent the electoral college is in fact unconstitutional under Art. I, sec. 10, cl. 3, which prohibits states from entering into compacts with one another without the consent of Congress.
Further, like most any of the provisions of the Constitution, the grant of authority to legislators to designate the manner for picking electors is not unlimited. In addition to the reasons you cite, it violates the very structure of the Constitution itself, by allowing the big states to gang up against the small states to elect the President. Many of the most fundamental compromises made in the Constitution were provisions to protect the balance of power between the large and the small states.
We've discussed this in detail previously at StubbornFacts.us.
I think there is another aspect of this.
Article 1 Section 10: No state shall enter into any treaty, alliance, or confederation;
An alliance or confederation of states that seek to take control of the US presidency would potentially apply.
Imagine if the agreement was to vote for which ever candidate polled the best or received the most votes in the EU. That would clearly be out under section 10.
Now imagine if the larger states agreed they would only vote for someone who came from one of the larger states. That would violate the spirit of the great compromise between population and individual state representation.
Any alliance that would have one state give up its soverignty to others beyond what is in the constitution would seem to be against Article 1, section 10.
But.... but.... It could get a Democrat in office sometime. So, Constitution be darned, it'll get pushed hard.
Under the Interstate Voting Compact, as you pointed out, the electoral votes of a very blue state like R.I. or Maryland could end up going to a Republican candidate.
That will only need to happen once, and the IVC will be dropped like a hot potato stuffed with a live grenade.
1. I don't see how you get popular-elections-are-optional out of the text of 14th amendment. With respect to your example, the 14th Amendment says that if the right to vote for judicial officers is denied to any of the people of the state, there is a penalty to be paid. That means if you deny the right to vote to all of the people, the penalty applies. Ergo, popular elections are required.
2. The 14th goes beyond saying outright denial of the right to vote must occur to trigger the penalty, i.e. if the right to vote is "in any way abridged", the penalty applies. Consider this example in line with the usual historical context of 14th amendment discussions. Suppose a pre-civil rights era Southern state had said, sure we’ll let everybody vote. But we’ll also let of panel composed of the Governors of all of the Southern states award bonus votes to a candidate of their choice that will be used to determine the winner in each state.
Though not an outright denial of the right to vote, this would clearly be an abridgement right of a state’s citizens to vote for their Presidential electors, unless you take the pedantic position that the right to vote doesn’t imply that the winner of an election should be chosen through the votes that have been cast.
3. The only difference between the National Popular Vote Interstate Compact and the system described above is the size and the composition of the committee awarding out-of-state bonus votes.
So any state that does not elect its supreme court justices by popular vote should already be penalized?
There's also the guarantee of a republican form of government for the states. I'm not sure if that exists where a state awards its electoral votes to a candidate whom a majority of its own citizens voted against.
Do not forget about Article 4 Section 4 of the United State Constitution which states that every citizen is guaranteed a republican form of governement, ie a representative based form of governement. This type of legislation amounts to MOB-RULE which is so very unconstitutional. I can not trust the decision of a mob, especially the decision of a spooked mob during a 'planned' crisis by a candidate.
The relevant section of the Constitution is the third sentence of Article. I. Section. 10. "No State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State ..."
Hmmmm. You may have me on this point, DF. I had penciled in "Attorneys General" in my mind when I read "judicial officers", but a quick look around the web shows that in standard usage, "judicial officer" does mean "judge".
However, that does not alter the basic point. The right to vote in an election is devalued (and in the language of the 14th amendment, abridged) when state legislatures are allowed to specify conditions where they will ignore the results. The Fourteenth Amendment says that, when statewide elections are held, legislatures have no right to override the results on the grounds that some group other than the statewide electorate chose differently.
The Interstate Voting Compact would clearly abridge the right of citizens of a state to vote for their own representatives, just as would a system that declared the winner in a Congressional election to be the candidate from the party that received the most national Congressional votes.
I don't find the 14th Amendment argument to be very persuasive, since the voters of smaller states in the compact would still count equally towards the determination of the winner of the nationwide popular vote. Their votes are "diluted" but so are other votes.
Yes, Rhode Island (for example) starts out with more electors per voter than California, but the Fourteenth Amendment doesn't guarantee Rhode Islanders the maintenance of that percentage, it guarantees them the "right to vote". As long as all Rhode Islanders still have that right to vote in the same proportion to the whole number of their adult male citizens, their representation is not going to be reduced.
A much stronger argument against the Interstate Voting Compact remains Article I Section 10. I believe the individual states could get around this if they didn't try to make the pact binding. If each state legislature simply pledged to choose its own state's electors based on the national popular vote but only when other states totalling 270 electoral votes had similarly so pledged, it would not be a true compact subject to Congressional approval. Of course it would also be easier for any state to renege, but there would be strong political pressures not to do so.
Suppose such a non-binding set of state pledges was implemented, and the first two or three Presidential elections produced unambiguous results in both the popular vote and the traditional electoral college. Suppose further that several states nonetheless cast their electoral votes for the national vote winner even if that candidate lost in their state. Pretty soon that would become a firmly established and effectively unchallengeable tradition, and we would indeed have a de facto national vote selection process.
That what the proponents should have aimed for. Instead they got greedy and are pushing a binding compact which they know is highly unlikely to pass Supreme Court muster in the absence of Congressional approval. Maybe they think they can "compromise" with a non-binding version later on.
Still, even with the Congressional approval requirement, that is a lower threshold than a Constitutional amendment. A Constitutional Amendment requires a 2/3 vote of both houses, plus ratification by 3/4 of the states. Whereas a compact only requires approval by a majority of both houses (and perhaps 60 votes in the Senate to overcome a filibuster).
I have to say that overall it is a clever strategy. It does offer a possible way of getting around the present electoral college system without a Constitutional Amendment which is virtually impossible to achieve against the self-interests of 1/3 of the Senate and 1/4 of the states.
I congratulate the proponents on their cleverness, even while I confidently hope that it will fail miserably anyway.
This is yet another case where the composition of the Supreme Court will be the deciding factor. If this compact passes (better than 50% odds, I would say) and then gets appealed to the Supreme Court (a certainty), a fair hearing of the constitutional arguments will lead to its being struck down... if, that is, a majority of the justices rule according to the Constitution with an eye on original intent. If, on the other hand, a majority of the justices are more concerned with the "correct" outcomes than with the law and have no compunctions about ruling by judicial fiat, the compact will be upheld. Unfortunately, that's almost always what it comes down to these days.
What about the "Maine Plan"?
As I understand it, Maine apportions their electors based on that state's popular vote. This would be more in keeping with the 14th admendment than the "winner take all" system most states use.
While it may not guarantee that the most popular in the country would win, it would come closer, and could be done w/o a compact between the states.
What if a state legislature decides that the popular vote in one of the states, say, Florida or Ohio or North Wherever, was rigged? In a state with a strong political bias one way or the other, say, Massachusetts or Utah, the pressure on the legislature to make "findings" of vote fraud would be intense. And I'm not sure a legislative decision about such things would be able to be challenged in court, because it could be a non-justiciable political question.
I think Maine apportions its votes based on the popular vote with a twist:
The winner of the popular vote in a congressional district wins that congressional district's electoral vote.
The winner of the overall popular vote in the state wins the two electoral votes for the senate seats.
This seems like a reasonable plan and would make it possible for a candidate to harvest some votes from a state that overall goes to the opposing candidate. It doesn't dilute the value of a state to just a 1-2 electoral vote net value as a proportional distribution based on popular vote breakdown.
I am delighted to know others believe this is an important endeavor.
You are correct about Maine's system. Personally, I like it. As you said, it means that a state can "split" its vote (Bush got one of Maine's electoral votes in 2000, while Gore got the rest), and it's completely constitutional. It would also, by the way, be constitutional for a state to allocate its electoral votes according to the popular vote in the state (i.e., if Bush beat Kerry 60%-40% in Alabama, the state could award four of its nine electoral votes to Kerry and five to Bush).
But few want to go with such schemes unilaterally because, until everyone does it, it dilutes a state's significance in the Electoral College. For example: New Mexico and Wisconsin are relatively small states, but they have become prime battlegrounds in recent presidential election cycles because the electorate is so closely divided there. If these states were to abandon the winner-take-all format, candidates would stop campaigning so hard there because the payoff would be, at most, one additional electoral vote in each state.
Donald Campbell (above) and I came up with the same plan using the same reasoning. Great minds obviously think alike :-)
If this compact were to be implemented, the smaller states would find that candidates would no longer campaign there, because their electoral votes could be had by campaigning in high-population states. The nature of political strategy would change and the political leverage of the small states would be reduced. I think a sensible small state would withdraw from the compact after a little experience.
The problem with the national popular vote interstate compact is not that Rhode Island’s number of electors per voter is being changed. The problem is that the Rhode Island legislature is looking to sources other than Rhode Island to decide how to allocate Rhode Island’s electors, meaning they're devaluing the votes of their own citizens.
Consider a few other examples that illustrate why this is problematic. First, step one civic level down. Suppose the Rhode Island legislature decides that the winner in Mayoral elections in each RI municipality will be the candidate from the political party that wins the most Mayoral votes statewide. Given how the value of a vote is defined in the American system of government, that would clearly be an abridgement of the right of voters in cities and towns to choose their own Mayor -- even though no individual’s vote has been weighted more or less than anyone else’s.
Next, step back up to the Federal level and head one state west. Suppose, after having read the tracking polls last year, the Connecticut legislature passed a law saying CT Congressional races would be decided using a party-based winner-take-all system; the winner in each Congressional race would be the candidate from the political party that won the most Congressional votes statewide. Again, the right of each district’s citizens to vote for their own Congressman would clearly have been diluted, devalued, and, yes, abridged.
Now head south. Louisiana currently has 5 Republican and 2 Democratic Congressmen. Suppose, for the 2008 elections, the LA legislature passes a law saying the winner in each district will be the candidate from the political party that receives the most Congressional votes statewide. Don’t the voters in District 2 and 3 have a reasonable case that the state legislature is trying to find a way to reduce the impact of their votes and override their choices?
In exactly the same way as in each of the above cases, a process for choosing Presidential electors that involves factors outside of an elector’s constituency abridges the right of citizens within a given constituency to vote for their own representatives.
The potential to win the Electoral College, but lose the popular vote for President only exists because of the fixed number of seats in the Senate, which is Constitutionally mandated at two per State. Historically this sort of mismatch happens once every century or so, but if that is too often then there is no need for interstate compacts or Constitutional Amendments, by changing one law we could substantially reduce the possibility.
The simple fix is to increase the number of seats in the U.S. House from 435 to twice that number or more. Those seats would be apportioned by population and the weight of the Senate votes in the Electoral College would be reduced proportionally.
If half the current weight for each State's two votes is not sufficiently improbable in your mind, then add more to the House and viola the problem is solved to whatever your level of satisfaction.
Well, there is a limit, a Representative must have at least 30,000 constituents, but with 300 million Americans, that would put the upper bound on the size of the House at 10,000. At that point the 100 Electoral votes from the Senate would be diluted by more than a factor of 20 from today's level.
An unfortunate side effect of this plan for the current lawmakers passing it would be that the value of the vote of any individual House member on every matter before the House would be diluted by the same factor. Of course as all reasonable people can agree, since the whole purpose of these plans to change the Electoral College was to assure a more popular outcome for President, probably it would be good for the House to better reflect popular opinion too.