Saturday, December 17, 2011

Dwyer Arce

  JURIST - Legal News & Research   University of Pittsburgh School of Law

December 15,2011

"The disenfranchisement of just over four million US citizens who are currently excluded from voting in federal elections."

In August, California became one of a handful of states to adopt an interstate compact that would make the nationwide popular vote controlling in presidential elections. Article II of the US Constitution provides that the President and Vice President are elected by the Electoral College, a body of electors apportioned to each state according to the size of its congressional delegation. This has resulted in the current total of 538 Electoral College votes, representing 100 senators, 435 representatives, plus three more awarded from the District of Columbia, as provided by the Twenty-Third Amendment

The National Popular Vote Interstate Compact would change the nature of the election by pledging a member-state's Electoral College votes to the winner of the nationwide popular vote, regardless of which candidate wins in the statewide vote.A trigger provision prevents the compact from coming into force until enough states adopt it to comprise a majority of the Electoral College, 270 votes. With California's adoption of the compact, there are now 132 Electoral College votes tied to it, with over a dozen more state legislatures considering joining the compact. Once it has been adopted by enough states, the Electoral College will be effectively abolished, allowing the winner of the national popular vote to become President.  

One detrimental aspect of the Electoral College which is not remedied through this compact is the disenfranchisement of just over four million US citizens who are currently excluded from voting in federal elections: the residents of Puerto Rico, Guam, the US Virgin Islands and the Northern Mariana Islands.

Puerto Rico and Guam have been part of the US since they were ceded by Spain in 1898. The US Virgin Islands were acquired from Denmark in 1917, and the Northern Mariana Islands came under US control at the conclusion of World War II. Congress granted US citizenship to the residents of Puerto Rico in 1917, those of the US Virgin Islands in 1927, Guam in 1950, and the Northern Mariana Islands in 1986. Each territory elects a Delegate to the US House of Representatives who can vote in committee but cannot vote on the final disposition of legislation, and each hosts a federal district court. These US citizens, living on US soil under constitutional governments organized through the authority of Congress, are excluded from the federal franchise solely due to their geographic location outside of one of the 50 states or the District of Columbia. This geographic discrimination is embodied in the text of the Constitution itself, which provides that voting representatives be elected to the House "by the people of the several states," that the Senate shall be "composed of two Senators from each state, elected by the people thereof," and that the president shall be elected through the state dominated Electoral College process. This federal framework fails to take into account the existence of seemingly permanent US territories populated by US citizens and, as such, excludes them from effective participation in the national body politic.

JURIST Managing Editor Dwyer ArceUniversity of Pittsburgh School of Law Class of 2012, is the 2011 Janavitz Fellow in First Amendment Law and serves as a Teaching Fellow in the Marshall-Brennan Constitutional Literacy Project.