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« Bank Sale Rashomon | Main | More Constitutional Objections to HB1299 »

Interstate Compacts...and Your Vote

Many pixels have been spilt, by Slaptick, Ross, and Amy Oliver (whose job I still want), about the end-run around the Constitution that is HB1299.

I won't bother to repeat their efforts to defend the Electoral College.

What strikes me is the irony of using the Electoral College and the Constitution to undermine them. HB1299 provides that the bill won't take effect until states with a combined Electoral College vote of 270 - enough to elect a President - approve it. The eleven largest states could decide that they want to change how a President is elected, without input from the other states. (In practice, Georgia and Texas, are unlikely to go along with this scheme, so the number of states needed would rise to 14 under current electoral count. Upcoming reapportionment might change it down to 13.) This reverses the Constitutional formula for amending the Constitution, with barely 1/4 of the states able to change things on their own.

When I pointed this out to the last political hack to try this stunt, Ken Gordon, on the air a couple of years ago, he retorted that this was only true because of the Electoral College itself, as those same states could elect a President. Of course, electing a President, who serves for four years, is a far less critical task than changing the Constitution, which changes will likely be with us forever.

The whole maneuver may not even be Constitutional. Article I, Section 10 reads, in part:

No State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

There are numerous interstate compacts, dealing with law enforcement, sexual predators, water rights, and other topics. The Supreme Court has ruled that the State needn't get Congressional approval unless the compact would impinge on Federal jurisdiction, which is why it's located in Article I, legislative powers.

However, the Court also ruled that term limits were an additional requirement for office, and that since Congressmen were Federal officers, the states had no power to impose those eligibility requirements. I wonder if one could make a similar argument about electors. I also wonder if a state has the right to apportion its own electors as it chooses, but cannot sign away that right of selection to other states.

All the arguments about this being an urban power grab are true. What's also true is that it's an unholy mess, which because its effects take place catastrophically, rather than as the states adopt it, is likely to sneak up on us and be settled in court, where so many of our issues are decided, rather than in the legislatures, where the ought to be.

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