[EL] A Twelfth Amendment Conundrum

[Rick Hasen]

This query seemed interesting enough to share with the listserv. Sharing, with C.E.'s permission.



On 10/8/20, 4:58 PM, "C.E. Petit" <cepetit at scrivenerserror.com> wrote:

    The Twelfth Amendment, if properly invoked, would throw the Presidency into 
    the House, one vote per state.

    Fine. Stupid, but it's what the text appears to say. Not even the greatest 
    advocate of "States' Rights" qua statehood could have thought this made much 
    sense, particularly given the tiny states of New England at the time the 
    Twelfth Amendment was adopted (which tilted the balance away from the slave 
    states, the primary locus of the states' rights movement on most issues).

    But for this purpose, is DC a state, since it has electoral votes? That is, 
    does the fact of throwing the election into the House where DC has only a 
    _delegate_ and not a Representative change the electoral calculus, from 538 
    to 535? Or is the definition of "state" (which is largely implicit in the 
    Constitution) left to "You're a state if you have Senators, and not if you 
    don't" -- a fascinating bit of circular reasoning?

    =====================
    C.E. Petit
    http://www.scrivenerserror.com http://scrivenerserror.blogspot.com
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