There is a curious bill that the House is expected to pass shortly after it makes it through committee, which is also expected. It will expand the House to 437 members, with one real voting member for DC and another for Utah - which was denied an additional seat under reapportionment by the thinnest of margins in 2000. Apparently the Utah seat is expected to be an "at large" seat for a while, so that the lone Democrat from Utah will not be gerrymandered away. It's a very odd bit of political logrolling.
First, it's not clear whether this is constitutional. Can DC be given a vote by a law, w/o a constitutional amendment? Its electoral votes came in 1961 with the 23rd amendment.
Also, does the weird at-large idea for Utah violate equal protection in some way by itself? More broadly, does any law adding a specific seat for a specific state violate the constitutional requirement for representation based on population? Surely a Republican majority cannot vote 10 extra seats for Texas just 'cause. Amendment XIV "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed." [Note: the prior version of this sentence read "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."]
What about the electoral college? This bill would necessarily increase the EC to 539. See Article II, "Each State shall appoint, in such 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 entitled in the Congress." Clearly, if Utah gets another rep, it gets another EV [Note: DC already gets 3 EV, 2 for the non-existent senators and 1 for the non-existent rep. Getting a real rep wouldn't change that].
This does not seem very well thought out, or at least not well explained.
Would it not be better to expand the number of reps to 500, or more, and do it all according to the census data, plus give DC a vote? That would also diminish the undemocratic nature of the electoral college as an added bonus.
Thursday, May 11, 2006
435+ 2 = Electoral Fun
Posted by The Law Talking Guy at 9:09 AM
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17 comments:
Fascinating, LTG! Thanks for bringing this to our attention. The constitutionality is interesting.
Article I refers only to, "the several states" when apportioning representatives. And specifically says that any representative or senator must be an, "inhabitant of that state [my emphasis]," which they are chosen to represent.
And while DC's "electoral" votes are in the 23rd amendment, congressional representation is absent. Indeed, the amendment is quite explicit: the electoral votes are granted to the district constituting the seat of government, "equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state... [my emphasis]"
However, Article I does say that, "Each House may determine the rules of its proceedings," and does not specifically require that (a) all members have an equal vote, or (b) that only members may vote--except in certain circumstances where the Constitution specifically says that a certain fraction of the House of Representatives must approve a bill, as in impeachment or a veto override.
So as I read it, Washington D.C. could in principle select delegates who would, under House rules, be granted votes in most cases, even though they were not technically Representatives.
The "house rules" won't cut it here. However, I suppose Congress can pass a law under the "necessary adn proper" clause extending the franchise to DC defining the district as a "state" for the purposes of Article I. SC will ultimately pass on it, though.
// posted by LTG
Could you explain why "house rules" won't cut it?
According to the Washington Post article, "From 1993 to 1995, Democratic House leaders permitted Norton and delegates from U.S. territories to vote in most cases, but only if their ballots did not affect the outcome. Norton lost even that limited right in 1995, when the Republicans took control."
Allowing someone to vote in the H of R who is not a representative is viewed by most scholars as a constitutional violation. Only members can vote. The Democrats avoided the problem by making the votes of delegates legally moot in all cases.
// posted by LTG
Could you explain why "Allowing someone to vote in the H of R who is not a representative is viewed by most scholars as a constitutional violation."?
I'm just curious... sounds interesting.
Heh. Clever.
Just handing DC a voting representative screams "unconstitutional" to me, but Congress can decide how it does apportionment; the law that currently fixes the size of the House at 435 is just a law.
It's a bit political and gerrymandery to tweak the size of the House to give Utah a seat, but that doesn't make it unconstitutional. Specifically, if the bill explicitly says "Utah gets another seat", that's untenable. But I suspect eventually the bill will just say something like "we're going to apportion 436 seats instead of 435, using method X to resolve fractional representatives", with the result that Utah gets the new seat.
The bizarre and fascinating history of apportionment is available at thirty-thousand.org . I highly recommend checking it out.
I don't know nothin' about the at-large business. I would've thought that once apportioned, it's up to the state to figure out what to do with its unfilled seats until the next election.
Bob
// posted by Bob
Article I states, "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." If membership is not read as synonymous with "ability to vote," then it is meaningless. To make ersatz members of those outside this structure would violate the constitution. There's really no debate here. The question is whether Congress can say "treat DC as a state" and make it stick.
// posted by LTG
It seems to me that the 23rd Amendment is predicated on the idea that Washington D.C. is not a state and is not entitled to Senators and Representatives as States are:
"The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States..." (Note the use of subjunctive.)
It may be that the enumeration of powers in Article I is broad enough to allow Congress to give Washington D.C. representative:
"The Congress shall have power to... exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States."
LTG says, "If membership is not read as synonymous with 'ability to vote,' then it is meaningless." He further adds that adding ersatz members would violate the constitution.
I think "synonymous" is far to strong. For example, the VP is not a member of the Senate, but may vote--he holds a special office; and there are cases in which individual members may not vote. But regardless, the Democrats allowed ersatz members to vote under certain circumstances in 1993-95, so there is precedent.
I wonder... did the Framers intend to deprive those living in the seat of government of suffrage? Were they so fixated on getting the States to agree to terms that they simply not think about it? Or did they give Congress its Article I "in all cases whatsoever" power so they could handle it later?
Perhaps the framers saw DC as a seat of government were people wouldn' t live really, just work. So they'd be voting in distrcits and represented by members from their home districts.
But then again, I used to get into a debate with a co-worker in my DC days who insisted that DC was always meant as a place for citizens to live, l ike a city. So maybe my thought is incorrect.
Interesting discussion, though!
// posted by USWest
Don't forget how Washington, D.C. came to be. It was a compromise between New England and the South. New England et al wanted the capital to be in the north (i.e. New York or Philly). The Slave holding states wanted it to be in the South. D.C. was carved out as a compromise. But there were already concerns about the balance of power in Congress between these blocs of states so D.C. was not to be a state. The founders were quite concerned about it.
And I suppose that the founders did not expect the District to have a noticable long term population. They probably expected Congressmen to show up with a bunch of servants or slaves for a few months a year and then go home. They certainly didn't envision a large corps of civil servants living there.
It's funny that concerns about balance of power are STILL what dominate the conversation about D.C. "statehood" or full represenation.
// posted by Raised By Republicans
RBR is right. Consider also that voting required land ownership in those days. Assuming that they envisioned the US gov to own most of the federal district, they assumed that voters meant free men who owned land elsewhere.
// posted by LTG
small point that probably no one cares about but me: "New England" is Northeast of New York. DC was positioned as a compromise between what was then the North and South, although even then it wasn't a particularly good deal for the North. (Maryland was a slave-holding state, and was only prevented from seceding in the Civil War because Lincoln put artillery threatening Baltimore, threw Southern-leaning members of the state's government in jail, and suspended a little thing called the writ of habeas corpus. All because having the seat of government surrounded by Confederates would have been tactically awkward.)
// posted by Bob
In addition to that, Bob, DC was donated land.
I always thought that as the country grew, the capital should have been moved closer the center of the country. The problem with DC is that it tends to be dominated by an East Coast establishment (both north and south along that cost) that discounts most of the rest of the country.
One example of this has been the huge meth problem that started in Oregon and moved into Washington State and California. Western Senators and Representatives were trying to get the attention of Congress to the growing problem and Congress wasn't interested. It was a problem way out west. Who cares. Now it is a national problem that has added a whole new dimension to the drug war. And Congress ignored it until it started to hit the mid-Atlantic Region. I am sure this is just one example of many that we could dig up.
// posted by USwest
Perhaps we don't need a national capital anymore! Why not have a peripatetic legislature and put offices in useful places (e.g, Dept of Interior in Denver, DOE in New Mexico, SEC in New York, etc.).
// posted by LTG
By the way, no one has commended LTG on his wonderful Simpsons reference from the title . (Two Minus Three Equals Negative Fun) Bravo!
// posted by Bell Curve
I'm glad someone appreciates a little additional Simpsoniana.
// posted by LTG
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