The book "Every Vote Equal" by John R. Koza and others
has approximately 60 pages of discussion of Article I,
sec. 10. Apparently the US Supreme Court has
interpreted this part of the US Constitution to permit
lots of interstate compacts, even when Congress didn't
give consent. I cannot summarize the argument very
well, but the proponents of the new plan for
presidential electors have not overlooked Art. I, sec.
10.
The book is 619 pages and can be read online at
www.every-vote-equal.com.
--- "Scarberry, Mark" <Mark.Scarberry@pepperdine.edu>
wrote:
(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
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