[EL] A Twelfth Amendment Conundrum

[Wilfred Codrington]

DC is not a state for these purposes, sadly. There was a constitutional amendment proposed in 1978 -- that last to have been proposed -- that would have remedied this (and a number of things to do with DC). But, alas, it failed.

~ WUC III

-----Original Message-----
From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Rick Hasen
Sent: Thursday, October 8, 2020 8:25 PM
To: Election Law Listserv <law-election at uci.edu>
Cc: C.E. Petit <cepetit at scrivenerserror.com>
Subject: [EXTERNAL] Re: [EL] A Twelfth Amendment Conundrum


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
    This message may contain legal commentary. Unless specifically noted
    otherwise, such commentary is NOT intended as legal advice for any
    particular situation.

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