Election law, voting rights, legal education, and miscellany written by Derek T. Muller, Professor of Law, University of Notre Dame Law School
Posted in: Electoral College
I have an op-ed in last week's Detroit News, "Don't force electors to vote for Trump or Hillary." It begins:
Imagine a place where it’s illegal to vote for anyone but a single presidential candidate this fall.That place exists in Michigan.
I have a new opinion piece at Washington PostEverything: "If no one else stops Trump, the Electoral College still can. It’s in the Constitution." It calls for states to consider selecting presidential electors for themselves this cycle, rather than leaving the selection of electors to a popular vote. It includes the following idea:
“State legislatures should consider whether to retake this authority in the 2016 election in an effort to stop Trump. Republicans control 31 state legislatures. Many could consider this proposal, but the Texas state legislature is a natural place to start. It could easily pass a law returning power to the legislature. After Election Day, the legislature could decide whether to vote for Trump or Mitt Romney, the prior Republican nominee; former Texas Gov. Rick Perry, who dropped out of the 2016 race early on; a popular GOP figure like Condoleezza Rice, whose name has recently been floated as an alternative; or their own junior Sen. Ted Cruz, presently trailing Trump in the Republican Party delegate count.”
Setting aside the extremely low likelihood of doing so or political outcry, I wanted to emphasize the possibility--one that had not yet been examined anywhere (as far as I saw). Indeed, it also has the virtue of being a measure that a state legislature could enact at any time before the election day--and perhaps even after.
There are three extra wonky things to consider that I couldn't fit into the piece and are better examined in detail here.
First, would the Voting Rights Act prevent states from passing such a law? It is hard to say that Section 2 would prevent states from passing such a law--that is, it's not immediately obvious that transferring the selection of electors from the people to the state legislature would necessarily "result[] in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." There is likely much that could be written on the subject, but I simply flag the matter as a possible complicating factor.
Second, would a state legislature need to pass a law? Strictly speaking, the task is left to the "legislature" of the state to decide the "manner" of the selection of electors. The governor has no role in that selection process. So could a state pass a law (signed by the governor) that would bind future legislatures in how they select presidential electors? Or could the state legislature simply choose to ignore any gubernatorial veto and select the electors themselves? My inclination is that the legislature could do it without gubernatorial interference--despite recent Supreme Court suggestions that "legislature" might not always mean "legislature.
Third, would the state legislature have to do so before the election, or could it do so after the election and effectively nullify the results? That would be an even more radical version of my proposal. Recall that the Florida legislature was preparing to select its own electors in mid-December as Bush v. Gore was pending before the courts. But that was a case in which there was a dispute over which slate of electors should be certified, and the legislature needed to at to comply with the "safe harbor" provision of federal law concerning the selection of electors. It might be the case that a state legislature could simply select its own elect its own slate and send the competing slate to Congress for its own examination of who "won" the election. (EDIT: probably not, given that the time is fixed by federal law for selecting electors--it would have to occur in the legislature on Election Day.)
In any event, it's a controversial--but creative!--idea I've been kicking around and thought it would be interesting to float to a broader audience.
The New York Times recently reported on comments by Hillary Clinton in Puerto Rico about the territory's status in presidential elections:
But she also has an eye on the general election. Puerto Ricans are increasingly moving to Central Florida, where they are a key voting bloc in the swing state. In the past two elections, they have turned out in large numbers, helping hand President Obama his two victories in Florida.
And she hinted at as much as she closed her remarks in Puerto Rico.
“It always struck me as so indefensible that you can’t vote for president if you live here,” she said with a slight smile. “But if you move to Florida — which, of course, I’m just naming a state — you can vote for president.”
What may be "so indefensible" is, perhaps, simply a misunderstanding of what the Electoral College is, and has been for over 200 years. The President is elected by the electors of the several States--and, as Puerto Rico is not a State, just as the District of Columbia (prior to a special exception in the Twenty-Third Amendment), or just as many of the western continental territories prior to states, it is not entitled to vote for the President. The inability to vote, then, is wholly defensible if one understands the Electoral College as a decision of several States, and not simply of citizens (or nationals) of the United States.
That, of course, may raise an important issue of Electoral College reform, and whether such a system should exist. It's worth noting (for this is rather underdiscussed) that there's a very real difference between some of the more modest proposals (of dubious constitutionality, as I've written) to turn the present Electoral College into a functional national popular vote, and a proposal that might establish an actual national election for the President.
The National Popular Vote ("NPV") builds upon the existing system we have. It would continue to state-by-state elections, and compacting states would pledge to give their electoral votes to the winner of a plurality of the national popular vote, once we assembled all those state-by-state elections into a national tally. But it would not extend the right to vote for president to United States citizens or nationals living in other territories--the system builds on the existing electoral system. (It's also worth noting that some Americans living overseas are entitled to vote in federal elections through the Uniformed and Overseas Citizens Absentee Voting Act, but Brian Kalt has forthcoming article in the Brooklyn Law Review expressing serious doubts about its constitutionality and specifically citing disparate treatment with citizens living in other American territories as one concern.)
But if one were to conclude that the presidential election should look like a truly national election--a uniform set of standards governing all Americans who get to cast a ballot--one major question would be the qualifications of voters for that federal election. I've written about this in the Arizona State Law Journal, and the complications that would arise in taking our federalist system, of state-based rules for voter qualifications, and trying to cobble together a uniform national standard. But part of that debate might include a discussion as to the status of citizens or nationals living in the territories. Should they vote for the office of president in a national election? Such a reform effort would be much more significant in this, and other, voter qualifications areas than proposals like the NPV.
So while there are efforts to reform the Electoral College, then, it's worth mentioning that some rather significant issues in this area--such as the one Ms. Clinton referred to in Puerto Rico--would remain unresolved absent a larger conversation about what our presidential election system should look like.
After perceived shortcomings in the electoral college in the 2000 election, and after Bush v. Gore, the National Popular Vote ("NPV") was introduced as a mechanism to convert the election of the president from the electoral college to popular vote. The goal was to avoid federal involvement: rather than enact a constitutional amendment, the NPV could garner support from individual states to give their electoral votes to the winner of the national popular vote, rather than the winner of their own state's popular vote.
Such unilateral disarmament would not be politically feasible, so the NPV included a trigger that conditioned it taking effect only when states comprising a majority of the electoral college's votes (at least 270) had enacted the legislation.
There was a flurry of enactments several years ago, but the pace slowed. That said, progress continues. Yesterday, New York's assembly joined its senate in supporting the interstate compact. The NPV is halfway toward taking effect; 136 electoral votes' worth of states have passed it. If signed by Governor Andrew Cuomo, it would push up to 165 votes.
As the proposal has been more popular in Democratic-controlled state legislatures, there are few big prizes left for NPV supporters, as California (55 electoral votes) and Illinois (20) have already enacted it. It has made progress previously in Pennsylvania (20). This year, it remains actively pending in Arizona (11), Connecticut (7), Nebraska (5), and Oklahoma (7). (The Wikipedia entry has excellent citations to the pending legislation.)
I've written extensively about the electoral college. I've concluded that the NPV likely fails absent congressional consent because it runs afoul of the Compact Clause, which prohibits states from entering agreements with each other that shift the balance of political power toward compacting states. I've also written about the "invisible federalism" undergirding presidential elections and explained that complications would arise should we decide to have 50 states' individual elections commingled into a single nationwide election.
Several more states would need to enact the compact before it takes effect, but New York's support shows that the issue is not over yet.