Should Kamala Harris participate in disputes over the counting of electoral votes in Congress?

Only twice since the Electoral Count Act of 1887 has Congress entertained formal objections to the counting of presidential electors. If a member of the House and a member of the Senate file a written objection to a state’s presidential electors, each house would separate and deliberate for two hours before voting on the objection.

Senator Kamala Harris of California is the vice president-elect. She can remain in the Senate until she resigns (presumably some time before January 20). The counting of electoral votes is January 6. Should she participate in any votes on any objections?

I say should because I think she can. It’s simply a political decision.

The Twelfth Amendment (and before that, Article II) puts the President of the Senate—the Vice President—in charge of opening electoral college certificates when the votes are counted in Congress. There’s obviously a conflict of interest where the vice president is a candidate—see Thomas Jefferson in 1800, for one, even before the Twelfth Amendment—but the Constitution firmly places this person in this position. Indeed, it’s perhaps made certain losses easier with a gracious loser—Richard Nixon in 1960 and Al Gore in 2000, to name two. Vice President Mike Pence will preside (in his absence, the responsibility would fall to Senator Chuck Grassley), and he, of course, has an interest in these objections, as many vice presidents have before him. But the vice president has played a fairly small role in recent years—Mr. Nixon’s request for unanimous consent to the counting of Democratic electors in Hawaii over a rival slate of Republican electors an outlier, but, one that was against his self-interest and one that expressly sought the consent of Congress.

In both objections lodged since 1887, however, we’ve seen Senators with a stake in the outcome potentially participate. One did participate, one deliberately chose not to.

First, in 1969, a faithless elector in North Carolina had voted for George Wallace instead of Richard Nixon. Members of Congress objected to determine whether to count the vote. Senator Edward Muskie was the losing vice presidential candidate, the running made of Hubert Humphrey. But it was Mr. Muskie, a member of the Senate, who actually signed the objection requesting that the vote for Mr. Wallace not be counted, on the grounds that it was not “regularly given.” In the end. Mr. Muskie voted on the losing side of the objection, as the objection failed in both chambers and the vote for Mr. Wallace was counted. (Incidentally, the losing presidential candidate, Hubert Humphrey, was the vice president and did not preside over the counting of electoral votes, as he was attending a funeral overseas.)

Second, in 2005, Senator Barbara Boxer and Representative Stephanie Tubbs Jones filed an objection that Ohio’s electoral votes were not regularly given. They would have refused to count the 20 electoral votes for George W. Bush and Dick Cheney. The losing candidate, Senator John Kerry, would have been the beneficiary of the objection. But, as reported in a statement printed in the Congressional Record, “I do not believe that there is sufficient evidence to support the objection and change the outcome of the election and I am not joining their protest of the Ohio electors.” It was printed, because Mr. Kerry did not attend the session and did not vote. (He opted to travel to the Middle East to meet with soldiers.) As Senator Mitch McConnell put it at the time, “Senator Kerry said that he would not participate in this petulant protest.”

One political principle, then, that unites these episodes is that Mr. Muskie voted in a way that would have been adverse to his interest as a candidate, and Mr. Kerry refused to participate in a process that would benefited his interests. (Of course, Mr. Kerry might have participated and voted “no” on the objection.) And it might be, then, that Ms. Harris should not participate in a vote that would be beneficial to her interests.

But, that’s for her to decide. This post is simply to note the political process as it’s played out previously. Again, Ms. Harris emphatically can vote on these objections on January 6. The Senate is closely divided on a partisan basis, but, like 2005’s vote that yielded a 74-1 rejection of the objection, I do not expect any votes to be particularly close.

But if she does participate, and if she votes in a way that benefits her candidacy, it would be a contemporary first under the Electoral Count Act.

Parsing the holdings in Texas v. Pennsylvania

There’s already been a lot written about the Court’s brief statement in Texas v. Pennsylvania, but I thought I’d offer my sense of the holdings. Here’s the Court’s order issued December 11, 2020:

The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

Statement of Justice Alito, with whom Justice Thomas joins: In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.

Texas filed three motions: a motion for leave to file a bill of complaint; a motion for preliminary injunction and temporary restraining order or, alternatively, for stay and administrative stay; and a motion for “expedited consideration of the motion for leave to file a bill of complaint and for expedition of any plenary consideration of the matter on the pleadings if plaintiffs’ forthcoming motion for interim relief is not granted.”

The Court, I think, had four holdings:

First, does 28 U.S.C. § 1251(a) allow the Court to decline a motion for leave to file a bill of complaint in an “original and exclusive jurisdiction” case? The Court divided 7*-2 on this issue in concluding that yes, it can decline. And it’s not a surprise, as I told a reporter last week: Justices Clarence Thomas and Samuel Alito have repeatedly in other cases argued that the Court may not decline the motion.

Second, if the Court is allowed to decline such a motion, should the Court grant the motion for leave to file a bill of complaint? By a 7*-0 vote (an issue Justices Thomas and Alito would not reach), the Court said no, and the Court declined the motion for leave. The Court did not need to give a reason, but here it did—because, the Court noted, Texas lacked standing.

Third, should the Court grant the motion for preliminary injunction and temporary restraining order or, alternatively, for stay and administrative stay? By a 9*-0 vote, the Court said no—7* justices because the answer to the Second holding (above) rendered the motion moot, and 2 justices (Thomas and Alito) because of unarticulated reasons (more on this in the closing thoughts below).

Fourth, should the Court grant the motion for expedited consideration, etc.? By at least a 7*-0 vote, the Court said no, as all other motions were “dismissed as moot.” It is not clear whether Justices Thomas and Alito thought so—the separate statement indicates they “would not grant other relief,” but expediting the proceedings is not really a request for “relief.”

One last wrinkle: did Justices Thomas and Alito, in their statement that they “would not grant other relief,” opine on whether they would grant relief requested in the complaint? I don’t think so. Granting the motion for leave to file a bill of complaint would open the process up to the ordinary rules of civil cases, including allowing the defendant States to file an answer, or a Rule 12 motion to dismiss, and so on. (No State filed such a motion.)

It’s possible that this ambiguity should be construed as Justices Thomas and Alito agreeing to grant the the motion, but turning around and sua sponte rejecting the relief sought in the complaint for lack of standing or on the merits (for unarticulated reasons). But the phrase, “I express no view on any other issue” suggests that this isn’t the case.

In closing, that’s how I parse this case at the moment. And I don’t think it tells us really anything about any justices’ thoughts on the merits. But it does suggest that even Justices Thomas and Alito saw no likelihood of success on the merits, as their denial of the motions for preliminary injunction, etc. suggest as much.

*UPDATE: Jon Endean in the comments helpfully points out that because the justices are not on the record, we do not know if all of them agreed. Some may have disagreed but were not on the record about it. So it could be only 5 or 6 justices instead of 7, or it could be 7 or 8 justices instead of 9. And it’s entirely fair to emphasize that the “shadow docket” does not formally record all of the justices’ positions. So my instinct is that if a justice disagreed, she might write separately; but that is not necessarily the case, and so I include the asterisks.

What's going on in the Colorado presidential elector case?

This July, the Supreme Court issued its decision in Chiafalo v. Washington, the “faithless elector” litigation. The Court concluded that Washington’s decision to fine its presidential electors who cast votes in violation of their promise to vote for the candidate they were pledged to support (i.e., the candidate who received the most votes in a statewide popular vote).

Colorado’s case—Baca v. Colorado Department of State—saw a slightly different fate. Because Justice Sonia Sotomayor recused due to a conflict of interest with the parties, the cases were not heard together. The Baca case presented some more complicated issues, procedurally and relating to the fact that the faithless elector was replaced, not fined.. And so the Supreme Court issued a per curiam decision sending the case back, for reasons stated in Chiafalo. Based on the slight record in the decision, however, it’s not quite clear to me that Baca would be so quickly resolved as Chiafalo.

The case was sent back to the Tenth Circuit, where it languished for a couple of months before being sent back to the District Court. As litigation proceeds, stuff happens in the interim. To start, the district court judge in Colorado who heard the case, Wiley Young Daniel, passed away in May 2019. It’s been reassigned. Today, the new judge issued an order (cleaned up):

ORDER: This matter is before the court sua sponte. The Supreme Court has resolved the appeal and reversed the judgment of the Tenth Circuit Court of Appeals. The Tenth Circuit has vacated its August 20, 2019 judgment and recalled its September 11, 2019 mandate. The Tenth Circuit has remanded to resolve any remaining issues in the case. To facilitate the court's just and speedy determination of this action, on or before November 20, 2020, the parties shall file a joint status report addressing the following: (1) the issues, if any, that this court must resolve on remand; (2) the prospects for settlement; and (3) anything else the parties wish to bring to the court's attention. This case shall be REOPENED. Status Report due on or before 11/20/2020. SO ORDERED by Judge Daniel D. Domenico on 10/19/2020.

Now, I may simply overread things—the parties may simply agree that Chiafalo is on point and dismiss the case. Or the district court agrees and tidies it up. Nevertheless, Colorado’s faithless elector law technically remains under litigation dispute under at least November 20—after Election Day, and before the Electoral College convenes….

Brief thoughts on court packing

First, some terms are negative and, no matter how much they’re used, never, at least in my ears, become positive. The phrase “going viral” is one. “Court packing” is another. I’m not a legal historian, but my understanding is that President Franklin Roosevelt proposed—admittedly, with some level of disingenuity—expanding the membership of the Supeme Court to assist aging justices hear cases and increase workload opportunities for the Court to hear more cases. “Court packing” was the critical term for the act, to suggest that his true motivation was to “pack” the Court with justices sympathetic to his political causes. So I’m not really a fan of using this phrase as a political rallying cry, as, I think, it’s a negative take. But maybe that ship has sailed, or maybe I’m idiosyncratic.

Second, it’s interesting to think about the procedural hurdles to clear. Expanding the Court requires legislative from the House and the Senate, including abolishing or surviving the legislative filibuster, and a presidential signature, followed by nominees from the president confirmed by the Senate. It’s a several stage process that takes all of government. It’s entirely achievable, of course, but it’s worth considering that the process may take some time.

Third, if “court packing” is the express goal—bringing on justices to the Court sympathetic to the expanding party’s political views—I wonder about the next question, the number of justices. In the event that a “conservative” jurist (for lack of a better descriptor) replaces the late Justice Ruth Bader Ginsburg, the “median” justice on the Court (again, imperfect as it may be) may well be someone like Justice Brett Kavanaugh. Currently, it might be deemed Chief Justice John Roberts. Before that, it was Justice Anthony Kennedy. Those are fairly significant moves in the last couple of years.

Replacing a sitting justice with one at the other end of the ideological spectrum is essentially a two-step move: subtracting a vote on one end, and adding a vote on the other. So any “court packing” requires two justices to “make up” for a one-justice switch. (And of course there’s no requirement for an even number of justices.”) If left-of-center parties expand the Court to eleven and secure two more Supreme Court justices, the median justice shifts back to Chief Justice Roberts. If they expand to thirteen and secure four more justices (and four more confirmation hearings!), the median justice shifts to, say, Justice Stephen Breyer or Justice Elena Kagan (or maybe one of the newly-confirmed justices). Fifteen, and move it farther still.

In short, another important question is what one wants to achieve in “court packing.” One might want to restore “balance.” One might want to move the “median” vote. One might say, “they got three in the last four years, we want three.” Whatever it might be, there are political arguments that would need to be raised, then legislation to be drafted.

I confess, I think it’s exceedingly unlikely that “court packing” occurs for any number of reasons. But if it does, these are the questions that come to mind—and I’m sure some others have thought more deeply about them before, but I plead mostly ignorance on that point!

Justice Kagan wrote on behalf of eight justices—not seven—in Chiafalo v. Washington

I’ve seen several versions of the claim that Justice Elena Kagan’s opinion in Chiafalo v. Washington was “on behalf of seven justices,” with Justice Clarence Thomas concurring in the judgment, joined in part by Justice Neil Gorsuch.

That’s not accurate. Justice Kagan’s opinion is on behalf of eight justices, all but Justice Thomas. This comes from the case syllabus:

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined as to Part II.

Admittedly, one’s eyes might glaze over the caption to see that Justice Thomas concurred in the judgment, in which Justice Gorsuch joined, and conclude that Justice Gorsuch did not join Justice Kagan’s opinion. But according to the case caption, he joined Justice Kagan’s opinion in full, and he joined part of Justice Thomas’s opinion.

This is a curious move, to say the least, and feels a little belt-and-suspenders for Justice Gorsuch. Justice Kagan’s opinion relies on states having power under Article II and the Twelfth Amendment, which “give[s] States broad power over electors.” Justice Thomas’s opinion relies on states having power under the Tenth Amendment: “When the Constitution is silent, authority resides with the States or the people. This allocation of power is both embodied in the structure of our Constitution and expressly required by the Tenth Amendment.” He continues, “Put simply, nothing in the text or structure of Article II and the Twelfth Amendment contradicts the fundamental distribution of power preserved by the Tenth Amendment.”

Justice Gorsuch didn’t join Justice Thomas’s part of the opinion describing Article II and the Twelfth Amendment as simply an obligation on the states rather than a source of power to the states. So he might agree that there’s power in Article II and the Twelfth Amendment, and he wants to emphasize the structural point of the Tenth Amendment.

But there might be another reason. Might. Justice Gorsuch might have sought to protect this line of Justice Thomas’s opinion from attack by Justice Kagan’s majority opinion, which did, after all, secure eight justices. Justice Kagan did attack Part I of Justice Thomas’s opinion, but she didn’t make any mention of the Tenth Amendment—and for that, Justice Gorsuch could join in full. Indeed, it might be a reason why Justice Gorsuch didn’t need to identify a separate endorsement for Justice Thomas’s position in Baca. It preserves a line of Tenth Amendment reasoning for future cases that hasn’t been expressly dismissed by a majority of the Court.

Maybe it’s too much speculation at this point. But the opening point of this post still remains—eight justices, not seven, joined in the principal opinion in Chiafalo.

 I revised the title because the post was confusing. My apologies!

A puzzle to consider in Colorado Department of State v. Baca

The two “faithless elector” cases were originally consolidated to be heard together. But Justice Sonia Sotomayor late in the process discovered she knew one of the parties in the Colorado case and withdrew. That may have been a fortuitous act and provided a clean opinion in Chiafalo v. Washington—and the per curiam opinion in Colorado Department of State v. Baca gives us a hint why.

Many have focused on the substantive difference between the Washington and Colorado laws—Washington counts a faithless vote but fines faithless electors; Colorado does not count a faithless vote and replaces a faithless elector.

But there were material procedural differences, too—specifically, multiple material problems with the Colorado plaintiffs’ case in Baca. In Washington, the electors were fined and contested that in state court. Easy injury to provide (a $1000 fine), easy remedy to seek, easy cause of action to raise.

In Colorado, however, plaintiffs faced several challenges. Were their claims moot? Could they sue a state under Section 1983—or, really, could the state waive this argument when sued for damages?

At oral argument in Baca, Justice Stephen Breyer in particular with concerned about these procedural wrinkles in the Colorado case. Justice Samuel Alito and Neil Gorsuch also raised versions of such concerns.

Now, because Justice Sotomayor was recused from Baca, the principal case became Chiafalo, because all nine justices could participate. Eight justices joined Justice Elena Kagan’s opinion; Justice Clarence Thomas concurred in the judgment, which Justice Gorsuch joined in part.

Now, to the entirety of the Court’s per curiam opinion in Baca:

PER CURIAM.

The judgment of the United States Court of Appeals for the Tenth Circuit is reversed for the reasons stated in Chiafalo v. Washington, ante, p. ___.

It is so ordered.

JUSTICE SOTOMAYOR took no part in the decision of this case.

JUSTICE THOMAS concurs in the judgment for the reasons stated in his separate opinion in Chiafalo v. Washington, ante, p. ___.

I looked at this opinion a few times wondering what happened. Specifically, what happened to Justice Gorsuch? He agreed with Justice Thomas’s Tenth Amendment argument in Chiafalo. What about here? Is the Tenth Amendment no longer in play?

And then I considered another possibility—as a per curiam opinion, we don’t see the lineup of justices. Some justices may not agree with the outcome but may choose not to note their dissenting opinion. It might be the case that Justice Gorsuch (and perhaps another, like Justice Breyer) didn’t agree to reverse for the reasons stated in Chiafalo. It might be that the procedural wrinkles would have been a reason to reverse, but they opted not to publicize that here and now, saving the issue for another day.

I don’t know. I would, however, resist the urge to call Baca a “unanimous” decision of the Court. It certainly appears unanimous. But there are reasons to think that some of the procedural wrinkles would lead some members of the Court to come out differently if they couldn’t hide behind the per curiam opinion here.

Avoiding the temptation to overread Chiafalo v. Washington

I’ve taken a day to chew over the Supreme Court’s decision in Chiafalo v. Washington, the “faithless electors” case. I’ve read a lot of commentary and talked to a lot of people who’ve wondered about broader implications of this case. My reaction is: it might be best not to overread this case.

This is, in one sense, an extraordinary case, but in another, and perhaps more significant, sense, a narrow case. The case is really about one set of facts: the state power to penalize or replace electors who cast a vote contrary to statewide popular vote winner.

I think some of the Court’s language could plausibly be used in other contexts. For instance, when it talks about the “State’s popular vote,” could that preclude a pledge for the national popular vote winner? Maybe—but, then again, maybe because that’s the way states do it now, and that’s what Washington and Colorado do, so that’s the language used. When the Court says that the Equal Protection Clause binds legislative decisionmaking, does that mean the legislature no longer has the power to select electors itself? Maybe—but, then again, the Court elsewhere favorably cites the deferential approach in McPherson v. Blacker. Could Congress be bound by the Court’s reasoning? Maybe—but, then again, it favorably cited “Congress’s deference to a state decision” elsewhere.

In short, my instinct in a decision with an eight-justice majority is to closely heed the narrow holding—states, I think, are free to run with statutes that bind presidential electors—and to loosely consider the Court’s reasoning for later application. It might be persuasive to a five-justice majority considering a later issue, but it’s just as easily distinguishable for some of the reasons I identified. The context matters, and the context here—again, while extraordinary—is narrow. So, in short, the reasoning is as persuasive to later courts as later courts deem it—no more, no less, and, really, hardly binding. The “mays” are just mays, not musts.

That’s my sense of how to read this case, anyway.

Analysis of the Supreme Court's decision in the "faithless electors" cases

The Supreme Court has issued its decision in Chiafalo v. Washington and Colorado Department of State v. Baca. The primary opinion in Chiafalo is here. A brief per curiam in Baca is here. Justice Elena Kagan wrote the principal opinion joined by all justices except Justice Clarence Thomas; Justice Thomas filed an opinion concurring in the judgment, joined by Justice Neil Gorsuch in part. The power of the state to regulate “faithless electors”—either fining them or replacing them—was affirmed.

In Chiafalo, three electors cast votes for Colin Powell for president and assorted candidates for vice president instead of Mrs. Clinton and Tim Kaine. Congress counted those votes for Mr. Powell. Those electors were each ultimately fined $1000.

In Baca, an elector who attempted to cast a vote for John Kasich for president instead of Hillary Clinton was deemed to have vacated his office. He was replaced, another elector voted for Mrs. Clinton, and that vote was counted in Congress. (Justice Sonia Sotomayor was recused from this case because she had a friendship with one of the parties.)

Justice Kagan’s opinion relies heavily in part on Ray v. Blair, the 1952 Supreme Court decision that permitted states to require a pledge to support the candidate, but it reserved on the enforceability of that pledge. The “longstanding practices” of electors weighed against the challengers in Ray v. Blair, and it’s the same here in Chiafalo. Justice Kagan’s opinion also relies on the NLRB v. Noel Canning decision (slip op. at 13) to emphasize longstanding practices.

Justice Kagan’s decision really relies on a phrase she notes on p.10 of the slip opinion, “The Constitution is barebones about electors.” This gives states broad power over electors.

Justice Kagan is less than impressed with the argument that “vote” or “ballot” necessarily implies choice. She explains, “But those words need not always connote independent choice. Suppose a person always votes in the way his spouse, or pastor, or union tells him to. We might question his judgment, but we would have no problem saying he 'votes' or fills in a 'ballot.'" (Slip op. at 11, with more onto 12.)

Justice Kagan also situated the Twelfth Amendment as an important qualification to the original understanding of the scope of elector discretion. She emphasized, “The Amendment thus advanced, rather than resisted, the practice that had arisen in the Nation’s first elections,” that is, party-line voting. (Slip op. at 14-15.)

Congressional deference matters some, but not the way the electors suggested: “Congress’s deference to a state decision to tolerate a faithless vote is no ground for rejecting a state decision to penalize one.” (Slip op. at 17.)

To my mind, of note includes footnote four, which provides, “And if a State adopts a condition on its appointments that effectively imposes new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause.” That’s a view suggested in Term Limits v. Thornton and which I get at in Weaponizing the Ballot, about whether states have the power to add qualifications to presidential candidates—yes, there’s a “may,” but the suggestion continues that states may not do so.

Footnote eight also concedes questions about how to handle candidates who die between Election Day and the meeting of the Electoral College. In my mind, there are interesting Twentieth Amendment questions in such circumstances, too, that may lessen the concern—but, as the Court notes, it’s not something for the Court to confront at this time.

Justice Thomas filed an opinion concurring in the judgment, joined in part by Justice Gorsuch. Justice Thomas returned to his dissenting opinion in Term Limits v. Thornton (1995)—he views the Constitution’s elections clauses not as granting power to a state, but requiring states to perform a duty. He returned to a more vigorous view of the Tenth Amendment (this is the portion of the opinion Justice Gorsuch joined). The Constitution’s silence on the power to control electors should lean toward the state’s reserved powers under the Tenth Amendment to regulate them. His views didn’t carry the day, obviously, but they do get to the same place as the majority opinion.

In short, all nine justices agreed that states may fine faithless electors or replace them. I anticipate more states will enact statutes doing so just in the years ahead.

This post has been updated.

Related reading:

No, the Electoral College will not give the presidency to Hillary Clinton, Nov. 13, 2016

New effort (doomed to fail) calls for presidential electors to collectively exercise independent judgment, Dec. 6, 2016

The Electoral College won’t stop Trump—but it may change how political parties pick electors in 2020, Dec. 11, 2016

Faithless electors: Now it’s up to Congress, Wall St. J., Dec. 21, 2016

Status of 2016 faithless presidential elector litigation, Dec. 19, 2017

Washington State Supreme Court upholds finds for 2016 faithless electors, May 23, 2019

Analysis: 10th Circuit finds Colorado wrongly removed faithless presidential elector in 2016, Aug. 21, 2019

Why “faithless electors” have little power to change the winner of presidential elections, Oct. 14, 2019

Symposium: Leave courts out of presidential elector dispute, SCOTUSblog, Apr. 20, 2020

Brief of Professor Derek T. Muller as amicus curiae in support of neither party, Chiafalo v. Washington & Colorado Department of State v. Baca

Oral argument analysis: Will the Tenth Amendment make a comeback in the faithless electors cases?, May 13, 2020

Voting rights problems with the District of Columbia statehood bill

I’ve previously discussed the District of Columbia statehood bill, H.R. 51, and how, I think, D.C. statehood (or retrocession of D.C. to Maryland) should be contingent on a repeal of the Twenty-Third Amendment. The bill would carve out most of D.C. as a new state, but the remaining tiny enclave of federal buildings would remain, and that enclave would be entitled to three electoral votes.

One problem is a politically sticky first-mover question. If you condition statehood on repeal, a handful of states can effectively block statehood; if you grant statehood and hope for repeal, it may never happen.

I’ve tried to figure out what the remaining enclave looks like. The D.C. planning commission offers a sketch of that proposed residual district as of 2016. It mostly (but not entirely!) tracks with Census Tract 62.02, which, as of the 2010 census, had 33 inhabitants, and around 60 inhabitants as of 2018. This is imperfect, because it’s not entirely aligned with the census tract. And it doesn’t tell us how many are eligible voters. But it’s my start. And a 60-person jurisdiction receiving 3 electoral votes is, shall we say, suboptimal.

Under the Twenty-Third Amendment, Congress has power to choose how to award D.C.’s electors. So some have proposed interesting alternatives: give the votes to the winner of the Electoral College, or the winner of the national popular vote (if there’s such a thing). Another suggestion is that Congress doesn’t have to award them at all, which might lead to denominator problems in ascertaining a “majority” of the Electoral College. Now, the Twelfth Amendment says “majority of the whole number of electors appointed,” so perhaps those three aren’t counted as “appointed,” and we have (at least here) no problem.

But what Congress says it will do today isn’t necessarily what it’ll do tomorrow. There remains the possibility of Congress choosing three electors on its own, which seems to open up opportunities for mischief if we invite Congress to decide what to do with those electors. Since the Twenty-Third Amendment, Congress has assumed the people of D.C. vote for those electors. Shifting the power back to Congress invites a parliamentary-style choice. Only three electoral votes, but nevertheless congressional influence.

Section 206 of the bill anticipates this problem and provides for expedited repeal of the Amendment. But, there’s no guarantee that 2/3 of each house of Congress and 3/4 of the states would agree—or agree in time for a least one presidential election.

H.R. 51 also anticipates that there will be eligible voters remaining in the seat of government. Section 204 anticipates giving the remaining residents (33, 60, or some other tiny figure) the power to vote in federal elections. It says those residents are permitted to vote by absentee in the state where they last resided. (No word on what happens to those who never resided in another state.)

But this remedy in Section 204 is, in my view, constitutionally suspect. Congress has no power to establish voter qualifications—certainly not under the Elections Clause, as the Supreme Court said in Arizona v. Inter Tribal Council of Arizona, Inc., and perhaps not elsewhere. Of course, other Supreme Court precedents, like Oregon v. Mitchell, have approved congressional rules on voter qualifications, like reducing the federal voting age to 18 and establishing minimum residency rules for presidential elections. The Uniformed and Overseas Citizens Absentee Voting Act does the same, but, as Professor Brian Kalt has, in my view, persuasively argued, is likely unconstitutional (even if exceedingly popular).

For Congress to extend this residual group of inhabitants voting rights—and by compelling states to accept them as voters—would raise, I think, a significant constitutional question. Granted, there’s case law on Congress’s side, as well as a similar (and exceedingly popular) statute for uniformed and overseas citizens—litigation challenging Section 204 might sweep away much more than Section 204. But it remains, I think, a challenge to consider.

Finally, Section 205 is misleadingly titled, “Repeal of law providing for participation of District of Columbia in election of President and Vice-President.” All this does is repeal a conforming amendment to the Electoral Count Act of 1887, which sets the rules for Congress counting electoral votes from the states. It treats D.C. as a “state” for purposes of the rule. Repealing this statute doesn’t really do anything. Congress still has to count votes from D.C. under the Twenty-Third Amendment, if cast; if Congress casts those votes, then it has to count those votes, too, regardless of whether the Electoral Count Act gives express guidance of how to do so. Prior to the Electoral Count Act, Congress built up its own body of rules that, well, collapsed in the Election of 1876. The Electoral Count Act doesn’t “provid[e]” for D.C.’s participation in federal elections, and this section is only a technical provision that helps after the Twenty-Third Amendment is repealed.

In short, there are some election law problems with D.C. statehood absent a repeal of the Twenty-Third Amendment, and other problems that persist for the remaining few inhabitants in the residual district.