(cross posted to conlawprof list)
Rick Hasen's "Electionlawblog news and commentary" for 5/23/06 links to a
newspaper story
(http://www.sacbee.com/content/politics/story/14258781p-15073125c.html)
regarding the proposed interstate compact under which states would agree to
choose presidential electors pledged to vote for the national popular vote
winner. The California State Assembly bill (AB 2948) and several brief
analyses of it are available at http://www.leginfo.ca.gov/bilinfo.html (by
typing in 2948 in the bill number box and clicking on "search").
The bill says nothing about the requirement that Congress give its consent
to such an interstate compact under Art. I, sec. 10, cl. 1. Neither does the
newspaper article or any other commentary that I've seen on this proposed
compact (with the exception of the state legislative analysis noted in the
next paragraph). It seems clear to me that such consent would be required.
Perhaps list members will have views on whether Congress is likely to
consent, and on whether it should consent. Perhaps someone will even argue
that such consent is not required because of the authority given to state
legislatures under Art. II, sec. 1, cl. 2, to determine the manner of
selection of presidential electors. (And perhaps someone will argue that the
proposed compact violates the 14th Amendment by using a means other than
popular vote within the state to select the electors; if I'm not mistaken,
prominent con law scholars, including, I think, Bruce Ackerman, argue that
the 14th Amendment limits the power of state legislatures to choose electors
by means other than popular vote, and perhaps such theories would require
states to select electors based only on popular vote within the state.)
The earliest of the California State Assembly analyses (dated 4/24/06)
concedes that Congressional consent to the compact would be required; it
also discusses the power (the "complete authority") of the state legislature
to determine the manner of selection of electors (shades of the Bush v. Gore
concurring opinion) for purposes of showing that the state is not required
to select electors based on the overall popular vote within the state. The
two later analyses omit all such discussion. I don't know what the
significance may be of the omission of the constitutional issues from the
two later analyses. In any event, here is the discussion from the 4/24/06
analysis:
. . .
2)Electoral Votes : Section 1 of Article II of the United
States
Constitution provides, in part, that "[e]ach state shall
appoint, in such a 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
AB 2948
Page 5
entitled in Congress . . ." In accordance with that authority
granted to the state legislatures, California and 47 other
states (along with the District of Columbia) have chosen to
award all electoral votes to the Presidential ticket that
receives the greatest number of votes in the state (or in the
District). Two states, Maine and Nebraska, have chosen to
award 1 electoral vote to the Presidential ticket that
receives the greatest number of votes in each Congressional
district in the state, and 2 electoral votes to the
Presidential ticket that receives the greatest number of votes
in the state. Maine has used this system of electoral vote
allocation since 1972, while Nebraska adopted this method in
1996. However, neither Maine nor Nebraska has ever awarded an
electoral vote to any candidate other than the candidate who
won the statewide vote in the respective state. That is,
neither Maine nor Nebraska have split the state's electoral
votes between Presidential candidates.
While the "winner take all" method of awarding electoral votes
used in California and the district-based method of awarding
electoral votes that is used in Maine and Nebraska are the
only two ways that states currently use to award electoral
votes, the states are not limited to these two options.
Rather, the United States Constitution gives the state
legislatures complete authority to determine how presidential
electors are appointed. The California Legislature has
previously considered bills to adopt the district-based
method, to award electoral votes proportionately to the
Presidential tickets based on the share of the vote that each
ticket received, and to provide that voters shall vote
directly for Presidential electors, rather than voting for
candidates for President and Vice President at the general
election. In 2004, Colorado had an initiative on the ballot
that would have awarded that state's electoral votes on a
proportional basis.
This bill ratifies an interstate compact in which each member
state agrees to award its electoral votes to the Presidential
ticket that receives the most votes nationwide. That
interstate compact would go into effect only if the states
that are parties to the interstate compact collectively
possess a majority of electoral votes.
3)Interstate Compacts : Article I, Section 10 of the United
States Constitution provides, in part, "[n]o state shall,
AB 2948
Page 6
without the consent of Congress . . . enter into any agreement
or compact with another state. . . ." Thus, an interstate
compact requires the consent of Congress to go into effect.
The consent of Congress does not need to be explicit, but can
be implied. In Virginia v. Tennessee (1893), 148 US 503, the
United States Supreme Court noted that the consent of Congress
"may be implied, and is always to be implied when congress
adopts the particular act by sanctioning its objects and
aiding in enforcing them. . . ."
The sponsors of this bill envision two types of Congressional
action that could provide the consent of Congress necessary
for the compact to go into effect. The sponsors envision that
Congressional consent could be implied by an action of
Congress to permit the District of Columbia to join the
compact or by an action of Congress to amend existing federal
laws regarding the timing of the certification of the results
of presidential elections.
. . .
Mark S. Scarberry
Pepperdine University School of Law