Is the Interstate Voting Compact Unconstitutional?
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.
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.