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Monday, January 28, 2019

The District of Columbia and Presidential Elections

Howard Schulz's expression of interest in running for President as an independent prompted the following thought. Suppose that three people run for President and split the electoral vote such that none of them receive a majority of electoral votes. Everyone knows that the process for resolving that deadlock is in the Twelfth Amendment. The House of Representatives would pick the President from among those three and the Senate would pick the Vice-President from the top two running mates. In the House, each state receives one vote and the winner must get a majority of all the states. Over in the Senate, they just vote normally and the person with a majority wins.

What about the District of Columbia? The District of Columbia did not vote for President when the Twelfth Amendment was ratified. The Twenty-Third Amendment says that the District shall appoint presidential electors as if it were a state and that they shall meet in the District and perform such duties as provided by the twelfth article of Amendment. If the elections are thrown into the House and Senate, though, the District would be disenfranchised. Their electors cannot vote in Congress, they have no voting representatives in Congress, and the Twelfth Amendment refers only to states.

I wonder if the drafters of the Twenty-Third Amendment deliberated excluded the District from the tie-breaking procedure or just did not think about that prospect. Here's another question. Could the Congress, under its power to enforce the Twenty-Third Amendment, give the District a vote as a state in such a circumstance? Arguably not, given that the failed constitutional amendment sent to the states in the 1970s on congressional representation specifically said that the District should be treated as a state for purposes of "election of the President and Vice-President" without qualification and would have repealed the Twenty-Third Amendment. This implies that the exclusion of the District from the tie-breaking procedure was recognized then and seen as a constitutional defect.

Posted by Gerard Magliocca on January 28, 2019 at 07:32 PM | Permalink

Comments

"Arguably not, given that the failed constitutional amendment sent to the states in the 1970s on congressional representation specifically said that the District should be treated as a state for purposes of "election of the President and Vice-President" without qualification and would have repealed the Twenty-Third Amendment."

I would think surely not, but I am not comfortable with that line of argument. I would not take failed attempts at changing the law as evidence what the law is, because of the perverse incentives it creates.

Given that difficulty of changing the constitution, and the usual problems of aggregating individual preferences to a collective decision, that there is not a majority for changing the law to avoid X, is very different from there being a majority in favor of X.

Posted by: Jr | Jan 30, 2019 7:53:57 AM

Didn't the District of Columbia (supreme court) already pick the president in 2000?

Posted by: Gore | Jan 29, 2019 3:42:59 AM

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