Blogs > Cliopatria > Clinton's Constitutional Conundrum

May 25, 2008 11:15 pm


Clinton's Constitutional Conundrum



Over the past eight years, the most powerful Democratic argument against GOP-sponsored constitutional amendments on such issues as flag-burning or gay marriage has been a procedural one: the Constitution is too important to modify for insignificant issues (flag-burning) or proposals inserted for partisan political gain (anti-gay marriage). In recent weeks, however, the Clinton campaign has proposed two constitutional amendments that almost make the GOP efforts look Madisonian by comparison.

The first initiative came the day before the Guam caucus, when Senator Clinton gave an interview to the Guam media and said that Guam citizens should be able to vote in presidential elections: “It seems to me that it is long past time that we remedy this inequity. It doesn’t reflect American values; it is out of step with the move toward equality and full citizenship rights, and I will do everything I can to make sure the people of Guam’s votes are counted. It seems to me that it is long past time that we remedy this inequity. It doesn't reflect American values; it is out of step with the move towards equality and full citizenship rights, and I will do everything I can to make sure the people of Guam's vote are counted.” Of course, Congress cannot simply grant territories the right to vote in presidential election; such as change could be implemented only through constitutional amendment, as occurred with the District of Columbia and the 23rd amendment.

Clinton’s remarks attracted little media attention, but ABC’s Jake Tapper noticed them, and pressed the campaign for an explanation. Clinton spokesperson Mo Elleithee replied that, indeed, the senator desired a constitutional amendment to implement her Guam scheme.

Campaigning yesterday in Puerto Rico, Clinton raised the presidential voting question again, this time for Puerto Ricans. In a rally before Puerto Rican voters in Aguadilla, she affirmed, “I believe you should have a vote in picking the president.”

Perhaps the Constitution should be amended to allow Puerto Ricans and Guamanians to vote in presidential elections. But Clinton has been in the Senate for eight years, and she doesn’t seem to have raised the issue. There’s something off-putting about a U.S. senator first proposing constitutional amendments a few days before the targets of these amendments go to the polls.

Moreover, the Clinton constitutional amendments raise a host of unanswered questions. For instance, how, precisely, would electoral votes for Guam and Puerto Rico be allocated?

Guam has fewer than 200,000 people, about a third of the size of Wyoming, the least populous state. Along the lines of the D.C. amendment model, should Guam receive three electoral votes? If not, the Guam amendment would represent a break from more than 200 years of constitutional tradition. If so, the ratio of Electoral College votes to voters would be lower in Guam than in any state of the union—making Guamanians, in effect, the most proportionally influential citizens of the United States in presidential elections.

And what about Puerto Rico, whose population of nearly four million falls between that of Kentucky (eight electoral votes) and Oregon (seven)? Should Puerto Rico receive seven electoral votes? If so, is it appropriate for a territory to have more electoral votes than 20 states? If not, and Puerto Rico (like D.C. and, apparently, Guam) would only get three Electoral College votes, would Clinton suggest that the votes of individual Puerto Ricans are proportionally less important than the votes of other Americans?

And what about the Virgin Islands? Clinton seems not to have proposed a constitutional amendment to allow V.I. citizens to vote in presidential elections. Presumably that oversight wasn’t because the territory is strongly pro-Obama (he carried the primary 90-10). So what was her rationale for Guam and Puerto Rico to receive constitutional amendments, but not the Virgin Islands? Or the Northern Mariana Islands? Or American Samoa?

It appears as if the Clinton campaign is going to come up short, but perhaps Senator Clinton can work on these amendments in the next session of Congress. Somehow, however, I doubt that she’ll be as interested in making sure that Guamanians can vote for the presidency if she’s not on the presidential ballot.




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Alan Allport - 5/29/2008

Right, which is why I said it was similar; I didn't say it was identical. Obviously revoking the NPVIC would be easier than revoking a constitutional amendment. That doesn't mean it would be easy.

In the end, we're left with a choice between an imperfect but workable solution to the electoral college problem and an ideal but impractical one.


Oscar Chamberlain - 5/28/2008

"That's a bit like saying that the 13th Amendment didn't really abolish slavery because a subsequent amendment could always repeal it."

Not really.

Amending the US Constitution is an arduous task, as noted in some of the early entries above. The rational behind the NPVIC is that it is easier to implement to a federal amendment. By definition, if something is easier to implement, it is also easier to repeal.

If states make the NPVIC part of their state constitutions, that usually means a two to four year process. That would be hard to manipulate on purely partisan grounds but it would not be impossible.

To the extent that it is a legislative act, it could be manipulated by a legislative majority with a compliant governor.


Jonathan Dresner - 5/28/2008

Cool!

Thanks.


Michael R. Davidson - 5/27/2008

Two states already do it this way:

Maine:
"One presidential elector shall be chosen from each congressional district and 2 at large"

Nebraska:
"One presidential elector shall be chosen from each congressional district, and two presidential electors shall be chosen at large"


Alan Allport - 5/27/2008

That's a bit like saying that the 13th Amendment didn't really abolish slavery because a subsequent amendment could always repeal it.


Jonathan Dresner - 5/27/2008

This is one reason why state-by-state solutions really won't cut it.

As with baseball -- every true fan has some way the game could be improved -- true political junkies have an electoral college solution....

My preference would be to keep the Electoral College but abandon the winner-takes-all system. Each delegate is attached to a member of congress, in my system: House-based delegates vote the way their districts voted; Senate-based delegates vote the way the state voted. Ideally, this has to be combined with non-partisan districting, which also needs to stop being a state issue and become a national standard.

This could be handled legislatively, rather than Constitutionally.


Brandon Scott Watson - 5/27/2008

The NPVIC will not effectively abolish the Electoral College; that's a common talking point of its supporters, who like to pretend that it's synonymous with a national vote, but it is not really true. As a matter of state legislation, states will be able to withdraw whenever they deem it in their interest to do so, for instance; and whether the compact can work will depend on keeping a sufficient number of electoral votes on the side of the compact, which will open the possibility of sufficiently large states where one party dominates at the state level trying to manipulate participation in the compact in their party's favor. And so forth. It doesn't abolish the EC, even in practice; it just complicates the politics of it. (Moreover, the NPVIC as it stands doesn't constrain the votes of Electors, only their appointment; there will still be the possibility of rogue Electors.)


Alan Allport - 5/26/2008

*Because* "the constitution remains a compact of states, not of states and territories," it was necessary to pass an amendment to the constitution to authorize DC voters to participate in presidential elections.

Well, sure. And the same would be true if territorial voters wanted to participate. But your post at 9.21am suggested that there would be something vaguely "dubious" about their participation in federal elections because of the primary role of the states in the constitution. My point - and it's really a simple one - is that that state-focussed constitution has survived the enfranchisement of DC voters, who aren't associated with states, so I don't see why it wouldn't survive the enfranchisement of territorial voters too. There's really no great constitutional question here. And I suspect there's no substantive disagreement between us on this.

I see you've slyly raised the bar over Puerto Rico; they started by showing "no great enthusiasm" for statehood, but now they've been recharacterized as failing to demand it as an "overwhelming preference." That's quite a jump! But no matter ...


Ralph E. Luker - 5/26/2008

*because* "the constitution remains a compact of states, not of states and territories," it was necessary to pass an amendment to the constitution to authorize DC voters to participate in presidential elections.
There have been multiple referenda on Puerto Rican statehood and other options. I doubt that statehood will ever be seriously considered by Congress unless and until it is Puerto Rico's overwhelming preference.


Alan Allport - 5/26/2008

Um, ... *because* "the constitution remains a compact of states, not of states and territories," the amendment to authorize DC voters to participate in presidential elections.

Is there something - a verb - missing from this sentence? It doesn't seem to make any sense.

As a factual point, the 1998 referendum on changing Puerto Rico's political status showed 46.7% of its electorate supporting statehood (on 71% turnout) - hardly suggesting indifference towards the issue.


Ralph E. Luker - 5/26/2008

Um, ... *because* "the constitution remains a compact of states, not of states and territories," the amendment to authorize DC voters to participate in presidential elections. I haven't pronounced on whether Puerto Rican voters, for example, *ought* to be able to vote in presidential elections, but they have shown no great enthusiasm for statehood and I'd have reservations about their voting in presidential elections unless they were also subject to paying federal income taxes.


Alan Allport - 5/26/2008

Hmm? I don't think anyone is or was disputing that there would have to be a constitutional amendment to include territorial voters. Your point (I thought) was that there ought not to be such a constitutional amendment, because "the constitution remains a compact of states, not of states and territories." This is a normative, political judgment about the nature of the American system, not an unquestionable truth. As you yourself point out, the "compact of states" has already allowed for one non-state exception - the District of Columbia. I don't see any necessary reason why there couldn't be others.


Ralph E. Luker - 5/26/2008

Since it took a *constitutional amendment* to entitle residents of the District of Columbia to vote in presidential elections, my opinion seems not merely my opinion.


Alan Allport - 5/26/2008

That's a valid opinion; but it would seem to me that the constitution is sufficiently ambiguous on this point to allow for a range of other equally valid opinions too. It's a political question, and surely there was nothing inherently wrong in a politician raising it, even if her timing was a little suspect. KC's argument about weighting is a side-issue which can be definitely resolved if Americans want to resolve it.


Ralph E. Luker - 5/26/2008

Still, your point about counting votes from the territories in presidential elections is constitutionally dubious. The constitution remains a compact of states, not of states and territories.


Alan Allport - 5/26/2008

Your comment makes a point that seems obvious to many Americans, but abolishing the Electoral College requires the passage of a Constitutional amendment by two-thirds of the House, two-thirds of the Senate and three-fourths of the states, acting through their legislatures or by referendum.

The National Popular Vote Interstate Compact, if passed by enough states, will effectively abolish the college without the need to go through a byzantine constitutional amendment process.


Jonathan Dresner - 5/25/2008

I can understand the "off-putting" half of this post: it's a fair shot. The second half, though, strikes me as somehow excessive: since Clinton hasn't proposed any particular solution, going out of your way to point out that the "likely" solutions are somehow unfair (as though there wasn't plenty of institutional unfairness in the electoral system already)

If voters in territories are to be treated like citizens, then they're entitled to all the advantages of the system as provided for citizens of the fifty states; if not, then they're second-class citizens, still.


Ralph E. Luker - 5/25/2008

Alan, Your comment makes a point that seems obvious to many Americans, but abolishing the Electoral College requires the passage of a Constitutional amendment by two-thirds of the House, two-thirds of the Senate and three-fourths of the states, acting through their legislatures or by referendum. The problem is that the small state bias of the Electoral College is built even more strongly into the composition of the Senate. Thus, in 1969, the last time Congress considered a major effort to abolish the Electoral College, the amendment was approved by 338-70 in the House of Representatives, but it gained only 54 votes in the Senate, which is 13 short of the required two-thirds majority. Lacking congressional approval, it was not referred to the states for ratification.


Alan Allport - 5/25/2008

These problems of over- and underweighting would of course go away if the United States simply abandoned its broken electoral college system and elected its presidents according to a simple majority vote. Then all the territories could be included without controversy.

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