Talk:United States Electoral College/Archive4

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The 23rd Amendment and Congress

The Republican Congress controls three electoral votes under the 23rd amendment which is supposed to enfranchise the residents of D.C. but which, on a careful reading, grants Congress the plenary powers of a state legislature to appoint electors. The Republicans control Congress and 2004 is a very close presidential election. Somebody call Tom DeLay and Bill Frist, because Bush might need those three electoral votes. Surely the political downside of using them would be negligible since Congressmen aren't accountable in any way to D.C. residents (unlike state legislators which could face their voters' wrath for reassuming the power to appoint electors), and most come from safe Republican districts. Putting those three electoral votes to use would be a slam dunk for the Republicans. Pgva 19:32, 30 Oct 2004 (UTC)

You use the phrase careful reading, but then you misrepresent what it says. As with everywhere else in the United States, the electors are required by law to vote based on the populous vote of the state (or district for DC). South Carolina was the very last state to allow electors to vote in opposition to the populous vote. That was reversed back in the 1800's. So, while it is true that Congress chooses who the electors are, those electors are required to cast their vote for whomever wins the majority of the vote in DC. If the majority of DC voters choose Kerry, it doesn't matter if a Republican Congress chooses three Republican electors. Those Republican chosen Republican electors are required by law to vote for Kerry. Identically, if the majority of DC voters choose Bush and the Republican chosen Republican electors vote for Bush, it is not a conspiracy. It is simply law. I just get so irritated when people try to misrepresent the electoral system. It isn't complicated. It isn't a conspiracy. It is very simple. In all but two states, anonymous electors are chosen and required by law to vote for whomever the majority of the state voted for. In all reality, we have an electoral vote nationwide based on a populous vote withing each state (except the two weird ones). Kainaw 18:40, 2 Nov 2004 (UTC)

"Those Republican chosen Republican electors are required by law to vote for Kerry."

Your argument's assurance that election laws will ensure electors' fidelity to the popular vote is gravely mistaken. Whether presidential electors are, under the constitution, "free agents" -- in other words, whether those laws that seek to bind their votes are enforceable -- is a matter of genuine debate. Your position is implausible given the history of faithless electors including D.C. elector Barbara Lett-Simmons, who in 2000 actually did fail to cast a vote for her party's candidate. But how could that have happened? After all, wasn't there a law? In the example given, the electors are specifically chosen by Congress because they are expected to vote for the Republican candidate notwithstanding other considerations. In that case, I have every confidence that they would choose their party's candidate over any law. Pgva 02:43, 3 Nov 2004 (UTC)

There has never ever been a case where a faithless electoral voter had any impact of any kind on the election. Therefore, there has never been a need to enforce state laws governing electors. However, there has been a need to question the Constitutionality of state electoral laws. South Carolina's came up for debate over 100 years ago. It ended up adopting the same laws as all other states, not because all other states were unconstitutional, but because all other states were deemed constutitional. The real question that needs to be asked is what would happen if enough electors put in illegal votes to change the election results? Would the Supreme Court step in to counter it? Would that be Constitutional? Kainaw 14:42, 3 Nov 2004 (UTC)

"Would the Supreme Court step in to counter it? Would that be Constitutional?"

The Supreme Court would have no power to counter it. The 23rd Amendment enables Congress to choose the D.C. electors, and "they shall meet in the District and perform such duties as provided by" the 12th Amendment, which directs them to "vote by ballot for President and Vice President ... which lists they shall sign and certify, and transmit sealed to the seat of government of the United States, directed to the President of the Senate ...". After Congress counts the votes, "the person having the greatest number of votes for President, shall be the President..." So Congress chooses the electors, the electors vote as Congress wants, Congress counts their votes and their chosen candidate is elected President according to the constitution. The process is airtight and insulated from executive and judicial review. Manifestly, any law that seeks to bind the electors' votes cannot be enforced except by the sense of moral duty of the electors themselves and of the Congress in counting their votes. Should they follow the course suggested, the law would be a nullity and your argument, futile. Pgva 01:17, 4 Nov 2004 (UTC)

It took a lot of searching, but I haven't found the specific law stating that Washington DC follows the same law as all other winner-take-all states. In all other states, the Democrats and Republicans gather up their elector list before the election. Then, when one party wins the state, that party's list becomes the list of electors for that state. I've found many references that state Washington DC uses the same practice. That means that the Democrats in DC choose 3 electors. The Republicans choose 3. Then, when the voters choose the Democrat for President, they use the 3 electors chosen by the Democrats.

It seems that you are stuck on the last line of the amendment that enables Congress to enforce the law. That line (or something similar) is at the end of every amendment. It means: The preceding is a law enforceable by Congress. In other words, it gives Congress the right to enforce the law allowing DC to have 3 electors. It does not give Congress the right to choose those electors for DC. Kainaw 17:45, 4 Nov 2004 (UTC)

"It seems that you are stuck on the last line of the amendment..."

My argument rests on the text of Section 1, not Section 2, specifically the phrase "in such manner as the Congress may direct" (emphasis added). Pgva 18:24, 4 Nov 2004 (UTC)

Kainaw's argument doesn't work. The constitution allows electors to vote for anyone they want to. Some states do have laws that recall "faithless electors", but these might well be declared unconstitutional if challenged. In any case, for DC it would presumably be Congress that had the power to make such a law, so the point is moot.

However, I question this interpretation of the 23rd Amendment on other grounds. The amendment says that The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct.... I am not a lawyer, but I suspect that Congress choosing the electors would not qualify as a manner for DC to appoint them. "We direct that the way that DC shall appoint its electors is that we shall appoint them" or "that they shall be Smith, Jones, and Wu" might well not cut it. I any Constitutional scholar on record as interpreting the amendment this way? Josh Cherry 14:05, 4 Nov 2004 (UTC)

"Congress choosing the electors would not qualify as a manner for DC to appoint them."

Two points. First, the 23rd Amendment makes no reference to D.C. residents and D.C. is not a state (a sovereign, organized body of persons) but merely a seat of government (a place) under the exclusive legislative control of Congress (Const. Article I, Sec. 8). Literally, D.C. has no legal identity of its own except by reference to Congress, which functions as its legislature. Indeed, this fact readily explains why the 23rd Amendment granted Congress the power analogous to state legislatures in determining the manner of appointing electors. I am left wondering what other identity you imagine for D.C. that would contradict this plain reading of the constitution (accepting the Amendment's obvious absurdity in empowering a place rather than persons to appoint electors). Second, even if that were not correct, to whom would the power of deciding fall? Not the Supreme Court, whose intercession in the process is rendered moot by the 12th Amendment as I illustrated; not by the President, who likewise has no role in the process; no, it is Congress and Congress alone that decides. My argument is not so much about which interpretation is correct as about who gets to decide. That Congress is so empowered while also having the ability to cast three electoral votes should concern anyone favoring executive independence; it also illustrates the dangers of unintended consequences in altering the constitution's original design for the sake of good intentions. Pgva 17:55, 4 Nov 2004 (UTC)

You are correct in that it does not say D.C.. Instead, it says The District constituting the seat of government of the United States, which is currently Washington DC. That may change. Congress might decide to move the district to Omaha. In that case, who wants to rewrite the 23rd amendment.

Now, I can see where you are coming from. In plain English, the amendment states: Washington DC gets 3 electors (that number may vary as the amendment specifies) as directed by Congress. You appear to be reading: Washington DC gets 3 electors appointed by Congress. Am I understanding it correct (finally)?

If you and Josh agree, can this conversation be reorganized in a more chronological fashion to it is easier to see who replied last? Kainaw 21:08, 4 Nov 2004 (UTC)

I continually hear the argument that states cannot legally bind an elector to a specific vote and that if it were attempted, the Supreme Court would step in. I find it frustrating because it already happened: Ray v. Blair, 343 US 214. The Supreme Court empowered states to allow them to legally bind an elector to a pledged vote and punish them if they do not vote as pledged. The reason the state laws are all nearly identical in this case is because they came out of that Supreme Court ruling. That is why I cannot see it reasonable to assume that the Supreme Court would question the constitutionality of a law that the Supreme Court assisted in creating. Kainaw 16:13, 4 Nov 2004 (UTC)

First, as illustrated above, the Supreme Court can interpret the law however it wants and still be left entirely out of the electoral process under the 12th Amendment. Second, even if electors can be required to sign pledges and punished for violating those pledges, their votes can still be counted by Congress. Again, election laws may try to bind electors' actual votes, but to that extent the laws are a nullity. Pgva 18:15, 4 Nov 2004 (UTC)

Instead of simply bringing up items here, I thought it better to fill out the section on faithless electors. I added the exact number of faithless electors before now. I also added the description of the Ray v. Blair ruling. Cool? Kainaw 16:31, 4 Nov 2004 (UTC)

Resuming our discussion in a chronological fashion: There is no question that a state legislature's power to direct the manner of appointing electors is plenary and encompasses the power to select the electors itself. I cannot discern any difference between the example of a state legislature with respect to its state (empowered by Article II, Sec. 1) and Congress with respect to the District (empowered with identical language by the 23rd Amendment). Contrary to the assertion that the phrase "the District ... shall appoint" limits Congress' range of choices (""We direct that the way that DC shall appoint its electors is that we shall appoint them" or "that they shall be Smith, Jones, and Wu" might well not cut it."), I read that phrase as requiring the District to appoint electors in whatever manner Congress directs, i.e. it is a mandate upon the District rather than Congress. This is true whether the District happens to encompass the city of Washington, the city of Omaha, the U.S. Capitol grounds only, or one unoccupied acre of farmland somewhere in Kansas, which illustrates the problem with the Amendment as well as the "D.C. voting rights" persuasion generally: the District is not principally intended as a residence for citizens but rather a place, limited to ten miles square, where the government does business. The proper answers for those in D.C. demanding the right to vote in federal elections has always been to vote in Maryland's elections (their portions of the District being retroceded to Maryland if necessary) or for disaffected individuals to exercise their right of travel and move elsewhere. The failure to grasp these simple concepts and accept their implications has now resulted in a constitutional incongruity known as the 23rd Amendment. Nothing would be more fitting than for a partisan Congress to exercise precisely the power granted by the Amendment and arrogate to itself three electoral votes and reverse the outcome of a Presidential election to demonstrate that the Amendment corrupted core constitutional principles. Pgva 22:19, 4 Nov 2004 (UTC)

The difference that I see (states vs. DC) is that the New Jersey legislature's choosing electors can reasonably be seen as a means of New Jersey appointing electors, whereas the Congress's choosing electors cannot be reasonably seen as a means of DC appointing electors. I am not a lawyer and I am not insisting that this interpretation is correct. However, I don't think that your interpretation is as obviously correct as you say. Has any constitutional scholar interpreted the Amendment this way? If you can produce evidence of this, I will take this interpretation seriously. Otherwise, as far as I know it's just the idiosyncratic view of a non-expert. Josh Cherry 23:01, 4 Nov 2004 (UTC)

"The New Jersey legislature's choosing electors can reasonably be seen as a means of New Jersey appointing electors, whereas the Congress's choosing electors cannot be reasonably seen as a means of DC appointing electors."

Fair enough. Because it is absurd that the 23rd Amendment empowers a place (the seat of government) rather than persons to appoint electors, I am willing to concede that point (although letting Congress speak for its own seat of government seems eminently reasonable, rather like letting a state legislature speak for the capitol building in which it resides). It is the District, however defined, and not Congress, that must appoint the electors. However, I must stand behind the remainder of my argument and reach the same result for the following reason.

The "manner" by which the District appoints electors specifies the particular process for the District to follow. But the process might simply be: "Step one: Appoint Smith, Jones, and Wu." There, that's the process. Easy. The meat of the argument remains, regardless of the specific form required for Congress to exercise its power, that the substance of that power is plenary and most certainly includes choosing specific persons as electors.

As to the matter of consulting experts, it is useful to recall that members of Congress are the final arbiters of the presidential election process. In that sense, they are the experts, and a resort to the opinions of legal scholars amounts to a fallacious argument ad verecundiam. Pgva 00:51, 5 Nov 2004 (UTC)

The members of Congress are not the final arbiters of the constitutionality of the way they direct the appointment of electors for DC any more than they are the final arbiters of the constitutionality of any other legistlation that they pass. Suppose that Congress directed that the DC electors be chosen by a vote among white male residents of the District who are at least 21 years old. This would be struck down by the judiciary as a violation of several constitutional provisions. If Congress's choosing the DC electors itself is a violation of the 23rd Amendment, surely the judiciary has the power to intervene. Asking how legal scholars view the constitutional issue, and how they think the courts would rule, is entirely appropriate. Josh Cherry 01:29, 5 Nov 2004 (UTC)

"Surely the judiciary has the power to intervene."

Yet the character of that power must be very carefully examined in light of the 12th Amendment to determine its effects. Suppose that the Court, acting under the judicial power pursuant to the constitution and laws of the United States, did hear the case and render an opinion declaring the actions of Congress unconstitutional. How, under the 12th Amendment, would that opinion be enforced? As I already demonstrated, the process given in the 12th Amendment is purposefully not susceptible to judicial intervention (unless one entertains the idea of robed Supreme Court justices running the halls of Congress wielding pistols, a dangerous prospect given their age). Political consequences might very well result from ignoring the court's opinion, a factor that each member of Congress would be sure to consider in making their decision. But it would still be their decision.

I am led to recall the famous phrase from Marbury vs. Madison, "it is emphatically the province and duty of the judicial department to say what the law is in deciding justiciable cases and controversies." Okay, I added that last part, to illustrate the limitations of the principle. Congress might equally insist that it is the province and duty of the legislative department to say what the law is in performing the functions assigned to Congress by the constitution. Which department has the final say on constitutionality depends upon the nature of the situation, and it is not always the judicial department. It was entirely appropriate for the Marshall Court to exercise judicial review (against the determination of constitutionality made by Congress) to deny Marbury's writ of mandamus, for to do so was entirely within the Court's power in that case. By contrast, the Court has no power whatever in the 12th Amendment process that elects a President. The power belongs to Congress, which is free to use its own determination of constitutionality (against the one given by the Court) in choosing how best to act. If it is right for the Court to second guess Congress in performing its functions, then it is no less right for Congress to second guess the Court in performing its. Because of the 12th Amendment, the matter is genuinely nonjusticiable in that the Court's actions would be moot. Pgva 03:27, 5 Nov 2004 (UTC)

I would like to take leave of this with the statement that I disagree with your interprettion of the 23rd Amendment. I do not read it as giving Congress the power to choose electors for DC. I see it as Congress giving the power for DC to choose electors. You can read one amendment after another and you see the same phrases over and over: "will be enforceable by Congress", "as Congress may direct", "within the limits of the power of Congress"... The whole point is that Congress is not the ruling monarch of the US. When it passes a bill, it has to go to the President. Because of that, Congress cannot pass a law. They can only pass a law limited to the power that Congress has. If the President accepts it, it becomes a temporary law. It is temporary because the Supreme Court can still toss it out - meaning that it is still limited to the power that Congress has. Therefore, the 23rd Amendment is Congress giving DC the right to have electors as long as everyone agrees that Congress has the right to do so.

I would also like to say that I agree with Pgva about the needlessness of this amendment. DC is a district, not a state. People claiming to live in DC either live in Maryland or Virginia. That is where they should vote. I worry about two things. First, those people are counted in the population of Maryland, giving it extra electoral votes. So, if DC gets a free elector, that one should be taken away from Maryland. Second, what stops these people from voting both in the DC elections and the Maryland elections? Kainaw 13:21, 5 Nov 2004 (UTC)

This is factually incorrect. DC is not in any sense a part of Maryland. Residents of DC are not counted toward the population of Maryland for the purpose of determining the number of Maryland representatives or electors. Residents of DC cannot vote in Maryland elections any more than residents of Virginia or California can vote in Maryland elections. Josh Cherry 16:05, 6 Nov 2004 (UTC)

I would like say "thanks" to Josh for offering a point of view that I hadn't considered. Although my personal view is that to "appoint" amounts to nothing more than to formally name, leaving the actual choice to be determined by the process directed by Congress, I am willing to see his opinion as a reasonable interpretation. I am less sanguine about the assurance that the judiciary can interpose itself in the Presidential election process under the 12th Amendment. That the court cannot, even if it wanted to, interfere in that process seems crystal clear. To suggest otherwise admits of a grade-school understanding of judicial review in which the Supreme Court simply trumps all. This view would have surely astonished our Founding Fathers, for whom the judiciary "may truly be said to have neither FORCE nor WILL, but merely judgment ... is beyond comparison the weakest of the three departments of power ... [it] can never attack with success either of the other two ..." (Federalist 78). A faithful understanding of separation of powers must admit the possibility that the Supreme Court does not always get its way and is not the final arbiter of all things, that its edicts really can be disobeyed by the other branches, that in fact such disobedience is the only way that separation of powers can be ultimately realized in cases of judicial overreach. But I digress. The 23rd Amendment, in treating the seat of government as a body of persons, remains a constitutional incongruity. It could arguably be exploited by a determined Congress in a close presidential election. It should serve as a warning of the dangers of unintended consequences in attempting to improve upon the constitutional design, even with the best of intentions. Pgva 18:59, 5 Nov 2004 (UTC)

Thank you for being so gracious. I'm still not clear on why you think the 12th Amendment immunizes Congress from judicial review in these matters. The powers given to Congress there involve counting electoral votes, not choosing electors. But there's a more important point. How is it different from any other part of the Constitution that gives Congress or anyone else certain powers? Section I clearly gives legislative powers to Congress. It does not follow that the courts cannot rule their legislative actions unconstitutional. Josh Cherry 16:12, 6 Nov 2004 (UTC)

"The powers given to Congress there involve counting electoral votes, not choosing electors."

The power to count must imply the power to decide which contested electoral ballots to include when counting (for support of this view, see 3 U.S.C. 15). I simply assume that were Congress to interpret its 23rd Amendment power as inclusive of choosing its own slate of electors, then it would also choose to resolve any contest in favor of its own electors' ballots.

"How is it different from any other part of the Constitution that gives Congress or anyone else certain powers?"

The difference I see is that when Congress counts electoral votes under the 12th Amendment, it is performing a function different in kind from the ordinary act of legislating that requires no judicial assent to achieve its purpose. Even were the Supreme Court to issue a declaratory judgment in the matter, it would still be Congress counting the votes and the winner of that count would go on to be President according to the Amendment. To be clear, the courts could rule it unconstitutional, but that ruling would have only the force or effect that Congress would choose to give it - in my scenario, they would ignore the ruling. Pgva 18:02, 6 Nov 2004 (UTC)

Squeezing a direct popular election out of the current system

Should this be on its own page? This article is about the Electoral College, not ways to circumvent it. Dubc0724 18:57, 31 May 2006 (UTC)

Squeezing a national popular vote out of the current system by changing state election law no more "circumvents" the Electoral College than any other proposal for a national popular vote. I am more sympathetic to the view that all reform proposals be split into another article, since there are so many and since there continues to be a fair amount of controversy surrounding which ones to include here. I am, however, steadfastly opposed to any statement that a constititional amendment is required to change the current system (which could reappear as soon as the 'squeezing' section is removed) . As the 'squeezing' alternative proves, that is simply a falsehood. --Pgva 04:44, 5 June 2006 (UTC)