The Electoral College is incompatible with the 14th Amendment

[Kurt_and_Hunter]

Prior to the Civil War, the States were powerful sovereign entities.

One example, some States had religious tests for running for office well into the 1800s. From today's perspective, that seems flatly unconstitutional. But before the Civil War, the Bill of Rights only limited Congress, not the States.

After the Civil War, the States were stripped of some of their sovereignty. One major loss of sovereignty was that the 14th Amendment was interpreted to mean that State governments could not violate the Bill of Rights. Rights that had previously been held by the States against the federal government came to be held by citizens against all governments.

It is easy to see why the power of States was reduced after the Civil War. The "State thing" hadn't worked out very well.

It is less easy to see why States continued to get two Senators, no matter their population, as if they were still little countries. States get two Senators the same way Mali and Japan get one vote in the UN general assembly.

It is the Senators that make the Electoral College a joke. The electoral college apportions one elector for each Federal representative, so the smallest State is guaranteed three electors (one Representative and two Senators). As a result, the presidential vote of someone in Wyoming is, quite literally, worth twice that of a citizen of California. You can do the math... it's appalling. Without the Senate bonus, Al Gore would have won handily without Florida. It is the Senate bonus that allows the little states to trump the national popular vote.

Under the 14th Amendment as interpreted, that seems a clear equal protection problem. How can different citizens' votes count for different amounts? But you cannot amend basic, plain aspects of the Constitution that way. The Constitution says each State gets two Senators, and that trumps any interpretation that the set-up is unfair. The Supreme Court could not strike down the apportionment of Senators or the Electoral College if it wanted to.

And there is no way to amend the Constitution to eliminate the Senate bonus because a lot of those small states would have to agree to the amendment, which will never happen. So we have this built in tension in our system.
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On Edit: A poster down-thread notes that there is no individual constitutional right to vote for POTUS, which is correct.

[skipos]

1. Yup. The amount of power Wyoming has compared to California is ridiculous imo. nt

[BlueJazz]

2. I think us "Big States" should take a cue from Skittles and go Whip their Asses!

Then they'll vote the way WE want them to...

[Clanfear]

3. The caveat.

There is no constitutional right for the people to vote for POTUS. So technically there is no 14th Amendment application.

[Kurt_and_Hunter]

5. Very, very true. And civil rights laws are no help because Californians are not a protected class.

And of course the apportionment of Senators doesn't violate the 14th amendment. It is just incompatible in its goals, but that's par for the course.

Bush v. Gore offers two tangents to this.

Bush correctly pointed out that there is no constitutional guarantee of a right to vote for POTUS--accurate, but an amazing argument for someone hoping to become POTUS to make in public. (That's when I knew the Bush people were different from run of the mill pugs.)

On the other hand, crazy O'Connor actually made an equal protection argument, finding an equal protection violation in Florida counties using different models of voting machine (!!!)

[eagler]

4. That's why we have the House of Representatives

The people of Wyoming are much more able to determine their particular needs than California ever could understand Wyoming. I like the form of government we have now except that the electoral college violates the one person one vote which is the mark of a democracy. With the EC your vote is nothing more than a suggestion - and with Black Box voting you are disenfranchised evn more.

[suston96]

6. No individual "constitutional" right to vote for President?

I believe that is incorrect no matter what Justices O'Connor and Thomas have decided.

The method prescribed for the people to elect the president and vice-president is indeed through electors, but that individual right is protected by the Fourteenth Amendment:

Section 2

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. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,4 and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Now if they had said that there is no provision in the Constitution for the direct election of the President and Vice-President they may have been correct. Maybe.

Because there are numerous federal and state laws that also secure the individual right to vote so that remarks about the lack of constitutional protection of that individual right are indeed specious and without merit.

The US Constitution is a bare framework of governance. The US Congress and the states fill in whatever is missing regarding, in this case, the people's right to individually participate in their self-governance.

[Kurt_and_Hunter]

7. If the State legislature decides to chose electors through election, normal voting rules apply, but

no State legislature is required to do that.

You are correct that civil rights rules apply to a presidential vote if a presidential vote is held.

The Constitution leaves the matter of selecting electors to the State legislatures. Over time, they happen to have all settled on elections as the method, but any State legislature can turn around tomorrow and say, "We are going to pick the electors by a vote of the State legislature, and not let ordinary citizens vote on it."

And it would be their right to do so.

There would be a lot of squawking, but no Constitutional violation.

That's why there's no individual right to vote for President, unlike voting for congressmen, which the Constitution specifies is done by an election of the people. (And, after it was amended, election of Senators also. When the constitution was amended to require the direct election of Senators it should have done the same for President, but it didn't.)

[suston96]

8. The electoral college violates the individual right to vote....

Our rights do not have to be enumerated in the Constitution to reuire protection.

There is no "right to life" in the Constitution. That doesn't mean that states can violate the "right to life" per state laws or otherwise.

The Constitution has serious flaws. The electoral college depriving citizens of their natural right to participate in their own governance is one of them.