[EL] A Twelfth Amendment Conundrum

[Pildes, Rick]

The text of the 23rd Amendment does not make DC a State, of course, but only says the electors from DC shall be considered to be electors appointed from a State.  The electors have no further role in the process after they vote in the Electoral College.  And the Amendment gives DC no further role in the process beyond being able to appoint three electors.  The text does not treat DC as if it were a State for any purpose other than appointment of three electors.

If we were to end up with the House choosing the President, the electors play no role.  It is the representatives from the states that then do the voting.  And DC's delegate to the House does not have a substantive vote in the House even for normal legislation.  

So no, DC's delegate is not a representative of a State that has a vote in the House process should it ever get there.  I have not seen any analysis of this issue that suggests otherwise.  

Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Square So.
NYC, NY 10014
347-886-6789

-----Original Message-----
From: Law-election [mailto: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: 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
    https://urldefense.proofpoint.com/v2/url?u=http-3A__www.scrivenerserror.com&d=DwIGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=IKVLF6BuZ3ibA-n1jZD5AgYuEd1Sh4D2mtrQ5gJnwCI&s=h-RfzIeI9cS9mWeQzoqITem1vJPJ7X8hyXi313nv7eY&e=  https://urldefense.proofpoint.com/v2/url?u=http-3A__scrivenerserror.blogspot.com&d=DwIGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=IKVLF6BuZ3ibA-n1jZD5AgYuEd1Sh4D2mtrQ5gJnwCI&s=K54_SzdsOlHQUiEiNaq7AT1R-XF2vuGR7h6Q611z1WI&e= 
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    particular situation.

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