JOL Online Article

Combination Among the States: Why the National Popular Vote Interstate Compact is an Unconstitutional Attempt to Reform the Electoral College

Patrick C. Valencia[*]

“In all, the invisible federalism that has gone largely unnoticed in present presidential election debates serves a valuable purpose. It accounts for nonvoters, it maximizes enfranchisement, and it discourages interstate meddling. Federalism is not simply an impediment to Electoral College reform—it is a foundational element of its defense, one that precludes reform.”[1]

Abstract

Since the 2000 election “misfire” produced a President who won the Electoral College but lost the national popular vote, the National Popular Vote Interstate Compact (“the Compact”) has garnered support across the nation. Under the terms of the Compact, the states would thereafter pledge their electoral votes to the winner of the national popular vote, regardless of the outcome of the election within their own state. The Compact, already successfully approved by eleven states and the District of Columbia, needs its signatories to possess at least 270 electoral votes before it takes full effect and converts the Electoral College into a de facto direct popular election of the President. The current compacting states possess 165 electoral votes, and therefore need only 105 more before the Compact takes effect, a total that can be reached with the consent of as few as four more states. This article argues that this possibility makes the Compact a constitutional crisis–in–­­waiting. Although this crisis is not yet upon us, it lurks in the shadows and must be addressed before it has the chance to alter a presidential election and take away any and all effective electoral power from as many as thirty–nine states.

This article explains that the Compact is unconstitutional because it promotes combination among the states and effectively creates a direct popular election. Because these results are precisely what the Framers deliberately sought to avoid when they carefully detailed the “finely wrought” electoral procedures in Article II, Section 1, the Compact makes an impermissible fundamental alteration to the Electoral College. This Note examines the historical evidence of the Federal Convention, ratification debates, and writings of the Founding era and, in doing so, concludes that the Framers specified these procedures to prevent combination among the states and allow each individual state to vote according to its distinct interests. The Compact would force a state’s electors to disregard their state’s unique interests and, instead, vote for whomever secures a plurality of the national popular vote, regardless of that candidate’s performance in that specific state. To prevent this crisis-in-waiting from occurring, this Note concludes that if states ever attempt to enforce the Compact, a court should apply the “finely wrought” standard from Chadha and City of New York and strike down the deal, thereby preventing supporters of the Compact from passing a de facto constitutional amendment that deprives the non–compacting states of their current political power in presidential elections.

Introduction

Imagine, if you will, this chain of events:

“Good evening. This is NBC News Election Central.”[2] It is Tuesday, November 8, 1960—election night—and millions of Americans crowd their television sets as NBC’s flagship nightly news program, the Huntley-Brinkley Report, begins.[3] These Americans, most of them voters, hope the wait for the final results does not drag late into the night. After the first commercial break, anchor Chet Huntley tells Americans watching that it will be an early night—not because there is a clear winner, but because nothing will be decided that night. Returns have begun to pour in, and it is clear that the popular vote will be as close as it has ever been. In fact, Huntley reports there are already two lawsuits set to be filed the next day in New York City and Chicago by voters contesting the counting of the votes in local precincts. Reminding voters of the new electoral system, under which a minority of states possessing over 269 electoral votes will decide the election by binding their electors to the winner of the national popular vote, Huntley predicts that, as votes are counted and recounted and lawsuits are litigated and relitigated, this election will not be decided until mid-to-late December.

Indeed, he would prove to be correct as the election was not decided until almost Christmas Day. Just 0.17% separated Richard Nixon from the winner, President John F. Kennedy, in the national popular vote, meaning that miscounts or voting irregularities in any major city could have swung the election for the Democrats.[4] As they wait for a record number of lawsuits to be resolved before the final vote could be tallied, voters worry that this may be the new normal for American presidential elections. Moreover, voters in states like Iowa and New Hampshire, who never had even one candidate step foot in their state, feel they are neither heard nor represented in this new system of presidential elections, one which they did not condone and explicitly voted down in their own legislatures. Other voters are upset because their own electors voted for someone that did not come close to winning their own state’s popular vote. The atmosphere is chaotic. There is a constitutional crisis at hand.

***

In reality, the 1960 presidential election was decided easily. Despite the razor-thin 0.17% margin in the national popular vote, President Kennedy defeated Nixon in a landslide Electoral College victory, 303-219.[5] (The same cannot be said for the 2000 election, in which the Electoral College turned on a single state.) But, if the National Popular Vote Interstate Compact (“the Compact”) had been in effect in 1960, this fictional account could have been reality.

The Compact, whether achieved through state statute or congressional approval, is unconstitutional because it alters provisions of the Constitution that detail the “finely wrought” procedures,[6] a term of art as defined in INS v. Chadha,[7] of the Electoral College. This does not mean that the Compact’s ultimate goal is unachievable. What it does mean is that, like other important changes to the electoral process like universal suffrage and the lowering of the voting age to eighteen, such a result must come through the Article V amendment process.^[8] Supporters of the Compact, who in theory could push through their idea with just eleven states—far fewer than the thirty-eight required by Article V—hope to usurp the constitutionally required electoral procedures by keeping the technical procedure of the Electoral College in place, while in reality creating a de facto direct popular election of the President. Passed in eleven states and the District of Columbia, but not yet in effect because the compacting states first need to possess at least 270 electoral votes,[9] the Compact is a movement lurking in the halls of our electoral system, waiting to thrust the electoral system into constitutional crisis.

Proponents of the Compact are open about their desire to make that exact end run around the Framers’ design.[10] The Compact creates a situation where a state’s electors are required to vote for a candidate that the very same state’s voters might have rejected drastically. Unless passed by Constitutional amendment, the Compact cannot be allowed to take effect because, amongst other reasons, the Constitution’s finely wrought electoral procedures were meant to (1) prevent combination among the states of the exact sort which is the foundation of the Compact,[11] and (2) inject our potentially top-heavy system with an additional federalism safeguard—which the Compact explicitly and purposefully undermines.[12]

This article critiques the Compact on both functionalist and formalist grounds. The Compact goes against the spirit of the Constitution and the intentions of the Framers because it creates combination among the states, a result which the Framers explicitly sought to prevent by detailing clear, finely wrought electoral procedures.[13] Additionally, the Compact effectively results in a direct popular election of the President, a direction the Framers explicitly intended to avoid. The Framers focused great energy on the election of the national executive, had extensive debate, and voted on numerous different electoral proposals.[14] What is clear from this historical evidence, as well as subsequent ratification debates and early congressional debates, is that the Framers feared combination among the states and they strongly opposed a direct popular vote.[15] Yet, once states that possess at least 270 electoral votes pass the Compact, they will effectively impose a direct popular election on the rest of the country facilitated by explicit combination among the states, and will have extinguished any effective political power of the non-compacting states in the national election, despite the guarantees of protection to the small states that the Constitution formalized.[16]

Part I recounts the origins and development of the Electoral College, specifically analyzing what the Founding era, Federal Convention, and Constitutional structure reveal about the original meaning of the Electoral College. Part II provides background on the Compact by giving a brief history of the movement, detailing the mechanics of the legislation, and then discussing some of the reasons it has been passed to help give the reader context as to the motivations of Compact supporters. Part III discusses cases in which the Supreme Court has analyzed modifications of electoral procedure, before discussing Supreme Court cases striking down legislation (that is, not Constitutional amendments)) for fundamentally altering finely wrought constitutional procedures similar to the Electoral College. Part IV analyzes how the Compact fundamentally alters finely wrought procedures detailed by the Framers, then demonstrates that the Compact, unless passed by Article V procedure, is repugnant to the purpose and original meaning of these finely wrought electoral procedures, and should be struck down by courts once it enters into force by its own terms.

I. Origins, Development, and Federalist Purpose of the Electoral College

Along with the threat of political division between the states, the threat of combination among the states was a major impetus for the Federal Convention—and eventual adoption of the Electoral College—and thus is an important contextual point when analyzing the Convention debates on the electoral process.[17] In the period leading up to the Convention, when the Articles of Confederation still governed, the mid-Atlantic states—Maryland, Virginia, Pennsylvania, and Delaware—were about to enter into a commercial alliance.[18] With the Confederation Congress lacking the power to block states from entering trade wars, raise its own revenue, enforce national laws, or even supersede states’ own printed currency, the threat of the American economic heartland joining forces at the other states’ expense prompted the states south of Virginia to counter with a commercial alliance of their own. Contemporaries assumed that the Southern pact would then lead to a combination of the Northern states into a third commercial alliance.[19] Thus, without intervention by the Convention, the states were at risk of becoming disorganized, quasi-national rivals under these regional commercial alliances.[20] To avoid this and the other pitfalls precipitated by the Articles of Confederation, James Madison and others sought a stronger, albeit limited, federal government that would provide the alliance and organization the states needed.[21] Thus, against the historical background of weak states forming separate commercial alliances to counter the strength of larger states’ alliances, the Framers set out to draft a constitution at the Convention that, in addition to giving the Federal government more power, prevented internal combinations among the states that could ultimately fracture the Republic.

In drafting the Constitution, the Framers extensively debated numerous proposals for the selection of the national executive before reaching a compromise—the Electoral College—that gave states an important role in the selection.[22] To understand the underpinnings of this debate, it helps to conceptualize the Electoral College within the context of the larger debate at the Convention— a debate between supporters of the Virginia Plan and those of the New Jersey Plan, which had pitted the large states against small states. This led to the foundational compromise that created the federal structure and the Electoral College as it is exists today, and without which there would likely be no Constitution.[23] The Framers abandoned the idea of a purely majoritarian system at the outset (in the Articles of Confederation) and, faced with the opportunity to adopt one at the Convention, nevertheless preserved large elements of the state-based framework. This federalism-based compromise gave states an important role in the government, and small states a disproportionate role in comparison to that of large states, by providing for political safeguards of federalism.[24] Although these safeguards have been somewhat diluted since the Founding, one that remains today is the Electoral College.[25]

A. The Debate at the Federal Convention

The Framers debated numerous methods for electing the executive before settling on the Electoral College.[26] Three proposals received serious consideration, beginning with selection by the national legislature, which was proposed on June 2, 1787, and, after limited debate, was preliminarily approved by eight states.[27] The two other seriously debated proposals were selection by state legislatures and, the method which ended up in the Constitution, an electoral college system.[28]

Although these other methods of selection were seriously debated and preliminarily approved at certain points in the Convention, direct national popular election neither gained traction nor received extensive consideration among the Framers at the Convention.[29] Initially proposed by Gouverneur Morris on July 17, 1787, Morris himself even understood direct election had serious flaws, conceding that such a method would result in cabal, intrigue, and combination.[30] But, Morris felt selection by the national legislature would lead to the executive becoming a creature of the national legislature, and was thus equally as flawed as his proposal.[31] Many at the convention shared Morris’s worries, as reflected in the debate and votes—direct national popular election was put to vote twice, first on July 17, 1787, when it was voted against 9–1, and again on August 24, 1787, when it was voted against 9–2.[32] Direct popular election was, therefore, the least favored method of selection of the executive, as reflected in the table below.[33]

Finally, on September 6, 1787, by a vote of 9–2, selection by electors appointed by state legislatures—the Electoral College—passed as a compromise, allowing both the people and the states to participate while preserving the separation of powers inherent in the federal structure by keeping the national legislature out of the initial selection process.[34]

B. Outcome of the Convention—the Finely Wrought Electoral Procedure

Although the text of Article II does not explicitly address the prevention of combination among the states, the text reveals that part of the original understanding of the Electoral College was to prevent both domestic and foreign powers from intervening in the electoral process through the electors. Thus, despite debating numerous proposals for selection of the Executive at the Convention, the Framers rested upon the Electoral College because, not only did it produce the product they sought to achieve,[35] but it also created the political safeguards they found imperative.[36] Article II, Section 1 states that “[t]he Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”[37] Moreover, the Twelfth Amendment states:

The Electors shall meet in their respective states and vote by ballot for President and Vice–President . . . which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted . . . and if no person have such majority . . . the House of Representatives shall choose immediately, by ballot, the President.[38]

The Framers specified that Electors were to meet in their “respective states” for the same reason they required electors to meet on the same day throughout the United States: “for the express purpose of preventing combinations.”[39] The Framers wanted to prevent one state’s electors from influencing another state’s electors—specifically keeping the large (in population) states from influencing the small states.[40] Hamilton, in Federalist No. 68, noted that

this detached and divided situation will expose [electors] much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place. Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.[41]

Later comments in the U.S. Senate during debates on possible electoral reform by Charles Pinckney and Rufus King, both of whom were present at the Convention, confirmed Hamilton’s suggestion that the Framers were worried about improper domestic combination, and thus responded by crafting the electoral process to prevent such activity.[42]

Understanding that separating the electors out into their respective states to vote on the same day could not, on its own, sufficiently prevent improper domestic and foreign influence, the Framers added the requirement of voting by sealed ballot—one that would only be opened during the actual vote-counting itself, and in front of both Houses of Congress.[43] “Vote by ballot” is a term of art that, at the time of the Founding, meant to vote secretly.[44] These secret ballots were then to be sealed and left unopened until they were counted by the President of the Senate in the presence of both Houses.[45] This procedure gave the electors discretion and allowed for them to vote without being improperly swayed by others, while also ensuring the votes would not be tampered with.[46]

Furthermore, even if each of these procedures would prevent improper combination at the elector voting level, the Framers recognized the need to detail additional procedures in the event of a contingent election in the House of Representatives, where the possibility of combination might still be present.[47] The Framers felt that holding the contingent election immediately upon the finding of no Electoral College majority, in addition to the secret, sealed balloting process, would sufficiently address these fears.[48] Because the literal meaning of the word “immediately” is instantly without delay,[49] it is clear that the Framers desired a contingent election to be held instantly upon a finding of no majority, “without leaving the House in which they are then assembled, and without adjournment, to choose . . . who is to be Executive.”[50] By paying such close attention to these procedures, the Framers unwaveringly sought to stamp out any improper combination that would affect the product they desired from the electoral process: an impartial executive and an untainted government whose selections were based on federalist principles. These envisioned advantages of the Electoral College, as gleaned from the text of Article II, Section 1 and the Twelfth Amendment, demonstrate the Framers’ commitment to their ultimate proposal.

C. Federalist Principles Underlying the Finely Wrought Electoral Procedure

The back-and-forth history of Convention proposals for selection of the executive shows the Framers intended the selection to be federalist at its core, and thus made the states essential parts of the electoral process. They envisioned that through electors and Congressional delegations, states would represent their own distinct interests without any combination that could improperly affect such representation.[51] Created in the context of the federalism-based compromises that led to the bicameral structure of Congress, the resolution of the Electoral College debate was likewise a compromise between the large and small states. This compromise, which left a strong federalist imprint on the Electoral College, “was the means and price of the formation of the Union,”[52] “without which no Constitution or Union could have been formed.”[53] Thus, when evaluating whether an electoral reform proposal fundamentally alters the Electoral College, principles of 1790s federalism should weigh heavily in any modern analysis.[54]

Despite extensive debate at the Convention over the manner of selection of the executive, the Framers understood that, to achieve the type of executive they desired, the selection process must be federalist in nature; they balanced the process with the desired product.[55] Because “the true test of a good government is its aptitude and tendency to produce a good administration,”[56] the Framers conceded that the Electoral College may not have been appealing and perfect on its own right but, when compared to the other options available, debated, and rejected, was nevertheless the best means to achieve a strong, independent executive selected by states across the nation, who would represent each state’s distinct interests.[57]

It is true that the Constitution allows state legislatures to bind their own slate of electors,[58] but such action still must be compatible with the historical understanding of the electoral procedures in the Constitution, and thus must be consistent with the principles of process and product federalism. One example of this flexibility is state regulation of faithless electors. As a default rule, electors have discretion to be “faithless”—that is, to vote for whomever they choose, regardless of the vote of their state—because nothing in the Constitution, nor its history or spirit, prevents them from doing so.[59] This notion was first suggested by Hamilton in Federalist No. 68 when he described electors as “men most capable of [independently] analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation” who “will be most likely to possess the information and discernment requisite to such complicated investigations.”[60] However, as confirmed by the Supreme Court, states have the authority to take away a potentially faithless elector’s discretion and force her to vote for the candidate the state favored, which is a federalism-based power allowing the states to exert influence on the federal government.[61] As the political safeguards of federalism have weakened, a state’s ability to bind its electors asserts itself as another safeguard, thereby allowing states to exert influence on the federal government[62] because, after all, states are constituent parts of the federal government and “have a great share in [the President’s] appointment . . . .”[63]

States exercising their federalism-based authority to effect a constitutional change is not unprecedented, as seen by the movement that eventually led to the 1913 ratification of the Seventeenth Amendment.[64] However, the Seventeenth Amendment was not a violation of any “finely crafted” electoral procedure. Rather, it was consistent with the Framers’ federalist Constitutional understanding, as well as prior state practice. The Constitution originally provided for selection of senators through state legislatures.[65] The movement for direct popular election of senators began when states reasserted their traditional authority, and in doing so moved towards de facto statewide popular election of senators through nonbinding senatorial primaries or even general elections; this included various forms of pressure on the legislature to act accordingly—similar to the current state laws that bind electors to a state’s popular vote and threaten both civil and criminal penalties for doing otherwise.[66] Then, in 1913, the Seventeenth Amendment, providing for direct election of senators, was ratified.[67]

However, there is a very important distinction to note when applying the federalist principles of the Constitution to review a state’s attempt to effect a particular change in federal election procedures. Unlike the proponents of the NPVIC, the proponents of the Seventeenth Amendment changed how states elected their Senators, but not the fundamentally federalist nature of the Senate. The Seventeenth Amendment movement was effected by forcing state legislatures to look to their statewide elections, similar to how binding of electors occurs today; the Compact would require states’ own electors to disregard statewide elections in favor of the nationwide election, in many cases requiring their electors to contradict the state vote. Moreover, the movement for direct popular election of senators ended with a formal constitutional amendment, and not an interstate compact that bypassed the Constitution’s amendment procedures. For these reasons, although the Constitution, and federalism more generally, may allow state legislatures to bind their electors, how states go about binding their electors must still conform to the Framers’ purpose and principles followed in creating the Electoral College, as revealed through the history and text of both the Convention and the Constitution. After all, “as [the Electoral College] is one of the most important, so it is one of the most intricate provisions of the Constitution . . . .”[68]

II. The National Popular Vote Interstate Compact

The Compact was developed by critics of the Electoral College following the contentious election of 2000, and although its purpose is to create a common–sense approach to presidential elections, the rationales behind its creation, in light of the original understanding of the Electoral College as a finely wrought procedure intended to prevent combination, demonstrate that this approach has unconstitutional implications.

A. Origins and Development of the National Popular Vote Interstate Compact

In the days and months following the chaotic 2000 presidential election, many voters called for electoral reform.[69] Critics of the Electoral College took advantage of the public outrage over the Electoral College and offered several proposals to directly or indirectly eliminate it.[70] One idea these critics came up with was the National Popular Vote Interstate Compact (“the Compact”).[71] Supporters of the Compact lobby state legislatures to pass legislation that would award that state’s electoral votes to the winner of the overall national popular vote; once states possessing an absolute majority of electoral votes (currently at least 270) have passed such legislation, the theory goes, they will effectively create direct popular election of the President.[72] However, the Compact will not go into effect in the compacting states until enacted into law by states with such an absolute majority because no state would voluntarily abdicate its electoral influence without an assurance that the winner of the national popular vote would win in the Electoral College.[73]

First passed by the Maryland General Assembly in 2007, the Compact bill has become law in a total of eleven states plus the District of Columbia,[74] and has been introduced in all 50 states.[75] These states possess 172 electoral votes, thereby needing pledges of an additional 98 electoral votes before the Compact will take effect.[76] Theoretically—although unlikely due to the political makeup of these states—it would take just four more states (Florida, New York, Pennsylvania, and Texas, totaling 116 votes) for the Compact to go into effect, thus illustrating both how minimal state participation needs to be in order to fundamentally alter the federal electoral system, and how close to a constitutional crisis we may be.

B. Arguments for and Against the National Popular Vote Interstate Compact

Compact supporters advance numerous arguments in support of adoption,[77] but three of these arguments in particular are based on faulty rationales that ignore the intentional intricacies of the electoral process.

The main argument made by supporters of the Compact is that the national executive represents a singular constituency, and thus having a direct national popular election where only one vote, as opposed to fifty-one, matters is an intuitive and more common-sense approach to election of the national executive.[78]

Another argument claims that the Electoral College is inherently supposed to mirror the popular vote, and therefore the Compact will prevent “misfires”, in which a President wins the Electoral College, and the Presidency, while losing the national popular vote.[79]

Finally, supporters of the Compact argue that the Compact is consistent with federalism because it is an extension of a state’s “plenary power” to appoint electors and needs no approval, thereby circumventing any constitutional procedures like the Article I, Section 10 Compact Clause or the Article V amendment procedure.[80]

The problems with these arguments are manifold. First, the President explicitly represents not one set of voters, but fifty-one separate groups. Because of the numerous and distinct constituencies that elect the President, some of which have disproportionately greater influence in national affairs due to their size and location, the Framers established a process that was “manifestly nonmajoritarian” to allow for each state’s distinct interests to be represented.[81] The Framers crafted the appropriate process to achieve this product because they understood the importance of that product—an executive who represents the will of the states and not just regional interests.[82] The Framers’ allocation of disproportionate power for small (in population) states confirms their intention for the executive to also represent the small states, not just the large urban centers, whose voters are inherently easier to market to due to their densely packed nature.[83] The Compact would disrupt this delicate balance by urbanizing the presidential election, resulting in an electoral process not focused on a national campaign—still a hallmark of American elections.[84] Without the Electoral College, the federalist compromise achieved at the Convention would be subverted because all that citizens of the less populous states would “see [of the election] is the underside of [the presidential candidate’s] plane on his way to New York or California—if you have a set of binoculars.”[85]

While the state’s power to regulate elections has been described as “plenary,” this one-word descriptor does not resolve the matter because the Compact, like all interstate compacts, is required by the Constitution to be submitted to Congress for approval.[86] But even if Compact supporters went ahead and submitted the Compact for approval to Congress, Congress does not have the legal authority to approve the Compact because Congress cannot approve a compact that accomplishes something that Congress does not otherwise have the power to do.[87] Thus, although the arguments for the Compact may seem compelling on their face, the responses demonstrate how intricate and detailed the electoral procedures are in the Constitution and that, in the end, it is remarkably, and purposefully, difficult to alter procedures of the Electoral College.

Finally, although these previous arguments against the Compact may be compelling and are likely correct, they fail to address one important argument: by promoting combination among the states and effectively resulting in a direct popular vote, the Compact fundamentally alters the Constitution’s finely wrought electoral procedures and thus may only be put into effect through formal Article V amendment procedure.

III. The Court, the Electoral College, and Finely Wrought Constitutional Procedures

The Supreme Court has not had many opportunities to rule on issues relating to attempted state alterations of the electoral process, but in three cases where it reviewed state attempts to alter federal election procedures, the Court noted that both elector discretion and federalism were central pillars to the electoral process, and any alterations going beyond those powers must be effectuated through Article V and not state law. One area the Supreme Court has decisively addressed is legislative alterations of “finely wrought” constitutional procedures, and, although the Supreme Court has never articulated a specific rule or standard to review federal election procedures, this Note argues that because of the intricate nature of election procedures in the Constitution, “finely wrought” is the proper standard. In addition, understanding the Court’s approach to such alterations can be helpful in analyzing the constitutionality of similar alterations to finely wrought procedures such as the Compact.

A. The Court’s (Limited) Treatment of Federal Elections

When states attempt to alter federal election procedures, the Supreme Court reviews “fundamental” changes closely. While it has had trouble in the past defining what “fundamental” means, if a state attempting to transform the electoral system into a national direct election is not fundamental, then nothing is. In this section, I outline the leading Supreme Court cases to analyze what is and is not a justifiable use of state power.

The most notable case is U.S. Term Limits, Inc. v. Thornton,[88] in which Court struck down a state legislative attempt to alter electoral procedures because the legislation went beyond the scope of traditional state powers.[89] The Term Limits Court was reviewing an Arkansas constitutional amendment that altered the electoral process by imposing term limits on Arkansas’ congressional delegation, even though the Constitution imposed no such qualification.[90] The Court held that Arkansas overstepped its traditional power over the electoral process because to “argue otherwise is to suggest that the Framers spent significant time and energy debating and crafting Clauses that could be easily evaded.”[91] Significantly, the Court took note that the electoral process was carefully prescribed by the Framers.[92] Convinced that upholding the legislation “would effect a fundamental change in the constitutional framework”—namely, the electoral process—the Court held that such an alteration must come not by a state law or constitutional amendment, but as other important changes in the electoral process have come—through Article V amendment procedure.[93]

Over a hundred years previously in McPherson v. Blacker,[94] the Court upheld Michigan legislation altering electoral procedures because Michigan’s choice to shift allocation of its electoral votes to a district-based method was within traditional state power.[95] The difference in result here can be attributed to one main distinction: while the changes in Term Limits attempted to change something beyond what is left to state discretion, here the Michigan legislature acted both within its plenary power and consistent with historical practice. The Court found this to be a proper exercise of state power because Michigan’s proposal was not incongruent with the Framers’ explicit intention in designing the Electoral College: many states divided their electoral votes in the Founding era.[96] Moreover, the Court said that the original expectation of the Framers, even if different from actual experience, was that “the electors would exercise a reasonable independence and fair judgment in the selection of the Chief Executive.”[97] In exercising their plenary power to prescribe the method of choosing electors, state legislatures may influence this discretion, but the discretion nevertheless exists and does not disappear because of disuse over time.[98]

Finally, sixty years later in Ray v. Blair,[99] the Court upheld Alabama legislation authorizing state parties to select their nominees for elector in a party primary because, in addition to being a primary and not a general election, such an action was within the state’s traditional power to prescribe electors.[100] Acting on the grant of authority by the new legislation at issue, the Alabama Democratic Party required candidates for elector to pledge that they would support the party’s nominee at the Democratic National Convention.[101] In upholding the pledge in the presidential primary context (and declining to explicitly extend the holding to a general presidential election), the Court reaffirmed the notion that states can remove electors’ discretion as an exercise of state power to select electors as the state sees fit.[102]

In sum, although federal courts have not given extensive treatment to the question of how to treat state legislative attempts to alter finely wrought electoral procedures beyond allocation and appointment of electors, the Supreme Court has disfavored attempts by legislatures to go beyond their traditional state powers to alter the electoral process in general, just as it has employed equal skepticism towards attempted legislative changes to other finely wrought constitutional procedures.[103]

B. The Court’s Treatment of Alterations to Similar and Analogous Finely Wrought Constitutional Procedures

In regard to procedures analogous to the Electoral College, where the Framers took similarly great pains to craft detailed procedures in the Constitution, the Supreme Court has repeatedly defended the Constitutional text and its “finely wrought and exhaustively considered” procedures, and held that they may only be altered through formal Article V amendment.[104]

In INS v. Chadha, the Court relied on the finely wrought bicameralism and presentment requirements of Article I, Section 7, Clause 2 of the Constitution in striking down the one-house legislative veto.[105] Before the Court was federal legislation—in fact, a legislative procedure that was repeated in myriad federal statutes—allowing for the House or Senate, on its own, to veto an executive determination by the Attorney General not to deport a deportable alien.[106] Congress had delegated this authority to the Attorney General, but did not relinquish all of its authority, instead reserving the one-house veto for itself.[107] Respect for the finely wrought Constitutional procedures of bicameralism and presentment—which require every bill to pass both the House and Senate and be presented to the President before becoming law—led the Court to strike down the one-house veto because these requirements represented the significant and carefully-thought-out considerations of the Framers.[108]

In reviewing the constitutionality of the one-house veto, the Court relied heavily on the records of the Convention and the Federalist Papers[109] to reach the conclusion that, because the “Framers were acutely conscious that the bicameral requirement and the Presentment Clauses would serve essential constitutional functions,” the one-house veto could not pass constitutional muster.[110] The Framers “single, finely wrought and exhaustively considered[] procedure” is an integral part of the separation of powers, and may only be changed by Article V amendment of the Constitution.[111] “In purely practical terms, it is obviously easier for action to be taken by one House without submission to the President; but it is crystal clear from the records of the Convention, contemporaneous writings and debates, that the Framers ranked other values higher than efficiency.”[112]

Similarly, in Clinton v. City of New York, which again presented the question of whether to defer to detailed constitutional procedures over efficiency, the Court struck down the Line Item Veto Act of 1996 as inconsistent with legislative procedures detailed by the Framers.[113] The Act gave the President the authority to cancel individual provisions in bills passed by Congress when signing the rest of the bill into law.[114] Citing to Chadha, the Court found the line item veto disrupted a “finely wrought” procedure (the Presentment Clause) because the line item veto, however efficient, evaded the Framers’ design—as evidenced by the debates and compromises of the Convention—by allowing the President to sign a bill into law in a form never voted on by either house.[115] The Court said that “[i]f there is to be a new procedure in which the President will play a different role in determining the final text of what may ‘become a law,’ such change must come not by legislation but through the amendment procedures set forth in Article V.”[116]

In conclusion, Chadha and City of New York demonstrate that the Supreme Court strongly disfavors state and federal attempts to modify constitutionally required procedures because such actions circumvent the Constitution’s Article V amendment process. In these cases, the Court found that although some legislation may seem more common-sense in its efficiency, efficiency or, for that matter, one state’s view of common sense does not allow for fundamental alterations to procedures the Framers carefully crafted in their effort to produce a strong and principled government. “With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.”[117]

IV. The Compact Is a Constitutional Crisis in Waiting

The states that have joined the National Popular Vote Interstate Compact may only accomplish their objective through a formal constitutional amendment because the Compact subverts the electoral system by undermining the finely wrought procedures of the Electoral College. In doing so, it alters the very essence of the compromise that precipitated the Constitution itself. Even though state legislatures have the power to bind their electors to the winner of that individual state’s popular vote, they must do so in a constitutionally permissible manner.[118] By binding a state’s electors to the winner of the national popular vote, the Compact promotes combination among the states, rather than within today’s party systems, and effectively results in a direct popular election that can be decided by as little as eleven states.[119] In doing so, the Compact fundamentally alters the Constitution’s finely wrought electoral procedures, and results in a product directly contrary to what the Framers intended the Electoral College to produce. When viewing the Compact against the background of the historical evidence from both the Convention and the subsequent ratification debates, the evidence of the Framers’ intent strongly supports this conclusion.

A. The Compact Promotes Combination Among the States, Running Counter to the Deeply Federalist Product Intended by the Framers

Although it pays lip service to prior delineations of state authority, the Compact fundamentally alters the product the Framers intended in the design of the Electoral College because it requires combination among the states. For the Compact to succeed in its explicit goal to create a direct national popular election,[120] the compacting states must agree to ignore the interests of their own state and voters. These states must abdicate their responsibility to actively participate in the electoral process and surrender complete and total control of their electors to the control of the national polity, thereby voting for whomever secures a plurality of votes in the national popular vote total, even if that candidate did not win the popular vote in that individual state. This is the epitome of combination among the states: under the Compact’s terms, electors will look not at their own state’s distinct interests, nor the will of their own state’s voters, but instead to the national polity to decide who to vote for, even if their state dramatically rejected that candidate. This alternative design flagrantly contradicts the will of the Framers, who—unlike the proponents of the NPVIC—pushed through their Constitution with a broad base of support that the NPVIC’s drafters would envy. At the Convention, the Framers rejected both a direct popular election and election by the national legislature in favor of an electoral system that reflects the overall federalism-focused compromise essential to achieving the final constitutional framework. Thus, the Compact’s requirement of combination is constitutionally troublesome as it produces precisely the product and precisely the type of executive the Framers explicitly and deliberately sought to avoid.

The Compact, by focusing strictly on the means to justify the ends—in sharp contrast to the Framers, who valued product over process[121]—is directly contrary to the Framers’ intentions and, had it been proposed at the Convention, would most likely have been rejected nearly unanimously. The Framers deliberately crafted an electoral system that would allow states, especially small states, to exert influence on the election of the executive; after all, a foundation of the entire constitutional structure, and one of the political safeguards of federalism entrenched in the Constitution, is the disproportionate influence small states have on the federal level.[122]  As has been discussed at length above, the Framers envisioned that states, through their electors, would cast electoral votes for the candidate best suited to their state interests on the same day through secret ballot, thus ensuring a national executive elected without combination of foreign or domestic powers: one who would be responsive to all states and not just the densely populated cities.[123] Instead, the Compact not only allows for but in fact requires electors to disregard their state’s interests, binding them to the will of a national plurality. This is counter to the Framers’ intent because, as with the structure of the national legislature, the evidence from the Convention shows the Framers wanted each individual state to have influence and input on the federal government as a safeguard of federalism—this time through electors of their own who would represent the distinct views of their individual state.[124]

Some may argue that combination among the states was not one of the Framers’ central fears—or that even if it was, it is no longer relevant today because of the rise of frequently regional political parties.[125] However, the historical context of the adoption of the Constitution demonstrates why fear of combination was a strong motivation at the Framing and remains so today. Even within the modern party system, presidential elections are run at the state level. State parties organize their state’s slate of electors through the primary system, and when the time comes to vote in the Electoral College, most electors—out of either trust or compliance with state law—vote as a unit in accordance with the outcome of the popular vote within their own state—paying no regard to the popular vote of voters beyond their own state’s borders.[126] If this political party action is combination, it is expressly within the state, whereas the Framers were worried about long-term combination among the states that surrendered sovereignty to some authority besides the United States. These disfavored combinations resembled diplomatic alliances, as opposed to today’s working arrangements. The Framers’ Constitution incentivizes cooperation, but not combination. If state preferences frequently do not change, it is merely an incidental outgrowth of states making rational decisions on their own, based on their own local priorities and challenges. Therefore, even though political parties and the political machine did not exist at the Founding,[127] the combination argument still governs because the Framers were worried about combination among the states, not within a state.

It is axiomatic that the Framers crafted the Constitution in light of their experience under the Articles of Confederation, which threatened to pit the nation into divided and competing rivals through interstate alliances.[128] They hoped to eliminate any possible domestic combination by crafting intricate electoral procedures. It was the threat of interstate alliances, not intrastate alliances, that was a major impetus for the Convention and the ensuing procedural safeguards drafted into the Electoral College. Thus, there is a fundamental flaw in the argument that the Electoral College’s role in preventing combination is somehow anachronistic.

Furthermore, even if today’s political party context has given rise to genuine combination, the Compact, as even its supporters admit,[129] takes combination to an entirely new level and still attempts to convert the Electoral College into a direct national popular election.[130] There is no question that this is unconstitutional and completely against the Framers’ intent, or for that matter any conceivable public meaning of the Constitution. The Framers discussed this proposal twice and almost unanimously struck it down each time as troublesome because it would not produce the “good government” they sought to achieve.[131] Thus, it is clear that the Compact would then be a fundamental alteration of the electoral procedures beyond a state’s traditional powers.

B. The Compact Exceeds Traditional State Electoral Powers, As Outlined by Supreme Court Precedent

The authority exercised under the Compact is beyond a state’s power to alter the electoral process because it fundamentally alters the procedures and result intended by the Framers, similar to the state constitutional provision struck down in Term Limits. Moreover, unlike the Compact, the actions upheld in McPherson and Ray dealt with the allocation and appointment of electors, powers traditionally within a state’s authority as confirmed through historical practice.

As in Term Limits, when the state legislatures passed legislation imposing term limits on members of the U.S. House and Senate. The Court there struck down the legislation because it resulted in a “fundamental change in the constitutional framework” that the Framers had carefully prescribed.[132] Because the Compact achieves the same fundamental change in the carefully prescribed electoral process as in U.S. Term Limits, it too must be effectuated using Article V and not state law.

The Compact runs counter to the holdings in McPherson and Ray because in those cases, even when affirming the state alterations at issue, the Court identified consistent historical practice and traditional state powers. The Supreme Court in McPherson upheld electoral reform because Michigan’s proposal to shift allocation of electoral votes to a district method was consistent with the Framers’ intentions, as shown through identical historical practice in the Founding era.[133] Here, the movement for a Compact, while retaining the façade of the traditional Electoral College framework, explicitly moves to contradict the Framers’ intent while also upending the compromise that was necessary for an agreement to be reached and a nation to formed. The Framers intended for a federalism-based electoral process made of states as unique constituent parts of the nation, where electors would cast their votes individually, on behalf of their state’s distinct interests, for one federal Executive who necessarily must be viewed favorably by enough of the states across the nation so as to garner the support of a majority of the distinct constituencies that make up the republic.[134] Thus, the Compact is inconsistent with historical practice because it envisions the polity as one unified constituency with essentially identical interests in all relevant respects, disregards our federal structure, and results in an executive who is unrepresentative of all but the densely populated urban areas of the country, thereby exercising power beyond a state’s constitutional grant of authority.

C. The Framework for Courts to Prevent the Compact from Taking Effect

Should a federal court be faced with litigation challenging the Compact after 270 electoral votes are pledged and the Compact takes effect, the court should strike down the Compact as unconstitutional by applying analysis similar to that applied in INS v. Chadha and Clinton v. City of New York—also known as the finely wrought standard. The Compact is the epitome of a fundamental alteration of the finely wrought electoral procedures laid out by the Framers—it promotes combination among the states and not within a state, effectively resulting in a direct popular election, both of which are results the Framers deliberately sought to avoid by prescribing detailed electoral procedures. A federal court should not take such an audacious encroachment on the Constitution lightly.

The Electoral College procedure, which “is one of the most important” and “most intricate provisions of the Constitution,”[135] is as “finely wrought and exhaustively considered”[136] as the constitutional procedure at issue in Chadha and City of New York—the Bicameralism and Presentment Clauses—and thus must be defended by the courts with equal skepticism to any attempted modifications. As this Note demonstrates, the Framers paid a great deal of attention at the Convention and closely detailed the procedures in both the Bicameralism and Presentment Clause and the electoral provisions. Additionally, the Bicameralism and Presentment Clause ensures the proper deliberation on bills as well as separation of powers.[137] The Electoral College procedures ensure the proper product is produced such that the Executive represents each individual state’s interests and not just the interests of the national legislature or the densely populated areas of the nation. Thus, both procedures are important structural pillars to the federal system and must be scrupulously followed.

For these reasons, if the Compact receives 270 pledged electoral votes and is set to take effect, courts must follow the Constitution and apply the standard set forth in Chadha and City of New York to strike down the Compact, thereby preventing the Compact from fundamentally altering the Electoral College, “a finely wrought and exhaustively considered”[138] provision of the Constitution. Courts faced with such a challenge, by applying the finely wrought analysis, should find that, because the Compact attempts to impose a “fundamental change in the constitutional framework,”[139] it must not be effectuated by a state legislature but instead by formal Article V amendment procedure. “To argue otherwise is to suggest that the Framers spent significant time and energy debating and crafting Clauses that could be easily evaded.”[140]

Conclusion

The National Popular Vote Interstate Compact is a threat to our electoral system that must be stopped. Although it will not become an active threat until the compacting states possess 270 electoral votes, at that point the judiciary should prevent the supporters of this movement from exerting their influence over the rest of the states through this de facto amendment to the Constitution. States cannot be allowed to bind electors as the Compact envisions, even though they have the general authority to bind electors. Article II and the Twelfth Amendment contain finely wrought electoral procedures that were given exhaustive consideration by the Framers, and these procedures can only be altered by Article V procedure—the nature of which was also something the Framers took extremely seriously. Instead, the Compact promotes combination among the states and effectively creates a direct popular election, each of which were results considered and strongly disfavored by the Framers. In fact, the Framers sought to prevent such results from happening at all costs. Instead, they aimed to produce a more desirable product in a national executive who would represent the interests of states, both large and small, from across the nation. The broader federalism-based compromise, which allowed for the Constitution to be adopted, hinged on agreements like the Electoral College, and supporters of the Compact seek to scrap this compromise in direct opposition to what the Framers deliberately intended. A constitutional crisis lurks in the shadows of future presidential elections, and the potential power to avert it lies in the hands of the judiciary.

[*] J.D. with high honors 2018, George Washington University Law School. B.A. 2015, University of Notre Dame. The author would like to thank Bradford Clark, William Cranch Research Professor of Law at the George Washington University Law School, and the Harvard Journal on Legislation staff, particularly Winston Shi, for their helpful comments during the developmental stages and editing process of this Note.

[1] Derek T. Muller, Invisible Federalism and the Electoral College, 44 Ariz. St. L.J. 1237, 1292 (2012).

[2] David Von Pein’s JFK Channel, ELECTION NIGHT 1960 (NBC–TV COVERAGE), YouTube (Aug. 20, 2013), http://www.youtube.com/watch?v=XtOuIqHi8ns [https://perma.cc/L3SW-ENJZ].

[3] William Whitworth, An Accident of Casting, The New Yorker, Aug. 3, 1968, at 34, 34.

[4] See 1960 Presidential Election Returns, John F. Kennedy Presidential Library and Museum (last visited Apr. 11, 2017), http://www.jfklibrary.org/Asset-Viewer/ipKAdxZ-bECxT2SMX3VolA.aspx [https://perma.cc/KQW7-XJXG]. (counting 34,226,731 popular votes for Kennedy to 34,108,157 votes for Nixon).

[5] Id.

[6] This is a term of art used repeatedly in this Note, and it is derived from two Supreme Court cases in particular: INS v. Chadha, 462 U.S. 919, 951 (1983) and Clinton v. City of New York, 524 U.S. 417, 439 (1998). Although the Supreme Court’s concept of “finely wrought” will be addressed in greater detail later, it is important for the reader to understand at the outset the importance of the standard the Court required when it found the provisions were “finely wrought.” “Finely wrought” are Constitutional provisions that were “the product of the great debates and compromises that produced the Constitution itself,” and thus were specifically detailed in the Constitution. City of New York, 524 U.S. at 439. Fundamental alterations of such closely detailed, finely wrought provisions, the Court found, must be made through the Article V amendment process, not legislation. Id. at 449.

[8] See, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 837–38 (1995).

[9] Status of National Popular Vote Bill in Each State, National Popular Vote, http://www.nationalpopularvote.com/state-status [https://perma.cc/BH58-CRWJ] (last visited July 22, 2018).

[10] See Akhil Reed Amar and Vikram David Amar, How to Achieve Direct National Election of the President without Amending the Constitution, FindLaw (Dec. 28, 2001), http://supreme.findlaw.com/legal-commentary/how-to-achieve-direct-national-election-of-the-president-without-amending-the-constitution.html [https://perma.cc/HGJ6-LZSW].

[11] See discussion infra Sections I.A and I.B. (discussion on combination among the states).

[12] See discussion infra Section I.C. (discussion on federalist principles underlying the Electoral College).

[13] This Note is not a policy paper arguing for or against the Electoral College, or for or against direct popular election of the President. This Note simply focuses on the constitutional implications of reform sought through the channel of the Compact, as opposed to the Article V process. Although this Note will touch upon arguments previously advanced for and against the Compact, it is not a critique of them because the thesis of this paper is that even if all the current arguments for the Compact are right, the Compact would still be unconstitutional.

Currently existing arguments against the Compact include: it violates the Article IV Guarantee Clause; violates the Article I, Section 10 Compact Clause; and would violate the Constitution if Congress gives the Compact approval because they cannot do through Compact Clause approval what they cannot do through legislation. For a broader discussion of these other arguments against the Compact, see Tara Ross & Robert M. Hardaway, The Compact Clause and National Popular Vote: Implications for the “Federal Structure,” 44 N.M.L. Rev. 383, 422–432 (2014).

[14] See Norman R. Williams, 2012 BYU L. Rev. 1523, 1539–1559 (providing a more in-depth description of the evolution of the Electoral College at the Federal Convention).

[15] See infra Sections I.A and I.B.

[16] See Amar, supra note 10.

[17] See Robert M. Hardaway, The Electoral College and the Constitution: The Case for Preserving Federalism 69–70 (1994).

[18] See id.

[19] See id.

[20] See id. at 70–71 (noting that at that time, the British were also undermining the Confederation Congress’ trade talks in the hope that the Americans would fall apart economically and rejoin the Empire).

[21] See id. at 70 (quoting George Washington’s apt description: “Thirteen sovereignties pulling against each other.”).

[22] See Williams, supra note 14, at 1539–59.

[23] See Letter from James Madison to Henry Lee (Jan. 14, 1825), in 9 The Writings of James Madison 215, 217 (Gaillard Hunt ed., 1910).

[24] See generally Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 543–44 (1954) (“They preserved the states as separate sources of authority and organs of administration—a point on which they hardly had a choice. They gave the states a role of great importance in the composition and selection of the central government. They undertook to formulate a distribution of authority between the nation and the states, in terms which gave some scope at least to legal processes for its enforcement.”).

[25] For a discussion on changes in the law that have somewhat depleted the original political safeguards of federalism, see Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex. L. Rev. 1321, 1367–72 (2001).

[26] See infra note 28 (general overview of the proposals and votes at the Convention).

[27] James Madison, Notes on the Constitutional Convention, in 1 The Records of the Federal Convention of 1787, at 81 (Max Farrand ed., 1911) (“Farrand”).

[28] The proposals and votes at the Federal Convention that led to the adoption of the Electoral College demonstrate that the mode of selection of the national executive was one of the Framers’ most hotly contested and highly considered decisions. See infra note 34 and accompanying text and table.

[29] See James Madison, Notes on the Constitutional Convention, in 2 Farrand, supra note 27, at 22 (nine states voted against direct popular election on July 17, 1787); James Madison, Notes on the Constitutional Convention, in 2 Farrand, supra note 27, at 402 (another nine states voted against direct popular election on August 24, 1787).

[30] Id. at 29–31 (remarks of Gouverneur Morris).

[31] See id.

[32] See supra note 29.

[33] See supra notes 28–29; see also infra note 34 and accompanying text and table.

[34] James Madison, Notes on the Constitutional Convention, in 2 Farrand, supra note 27, at 497–98 (September 4, 1787, proposal from Committee of Eleven); id. at 525–26 (September 6, 1787, vote on the Committee of Eleven’s proposal).

[35] See infra Section I.C (discussion on the focus of the Framers).

[36] See Wechsler, supra note 24, at 553–57.

[37] U.S. Const. art. II, § 1 (emphases added to the portions most important to this discussion).

[38] U.S. Const. amend. XII (emphases added to the portions most important to this discussion). Although some of the language in the Twelfth Amendment is different than the original text of the Constitution, for all purposes relevant to this discussion the Twelfth Amendment mirrors the text of U.S. Const. art. II, § 1.

[39] Rufus King in the Senate of the United States (Mar. 18, 1824), 3 Farrand, supra note 27, at 462 (“The election is directed to be made in all the different States on the same day, and the Electors are permitted to make but one attempt at a choice. These provisions of the Constitution were adopted for the express purpose of preventing combinations . . . .”).

[40] See id.

[41] Federalist No. 68, at 190 (Alexander Hamilton) (Michael A. Genovese ed., 2009).

[42] Charles Pinckney in the United States Senate (Mar. 28, 1800), 3 Farrand, supra note 27, at 386 (“the vote should be taken in such manner, and on the same day, as to make it impossible for the different States to know who the Electors are for, or for improper domestic, or, what is of much more consequence, foreign influence and gold to interfere . . . .”); see also Rufus King in the United States Senate (Mar. 20, 1816), 3 Farrand, supra note 27, at 422 (“[T]he men selected by the people from their own body would give their votes in such a manner as that no opportunity would be afforded for a combination, to change the freedom and popular character which naturally belonged to the electoral bodies.”); Rufus King in the United States Senate (Mar. 18, 1824), 3 Farrand, supra note 27, at 461 (“[B]y apportioning, limiting, and confining the Electors within their respective states, and by the guarded manner of giving and transmitting the ballots of the Electors to the Seat of Government, that intrigue, combination, and corruption, would be effectively shut out, and a free and pure election of the President of the United States made perpetual.”).

[43] The Framers also extended this concern about improper combination to contingent House elections, see U.S. Const. amend. XII., when the Electoral College produced no victor. As Charles Pinckney explained with respect to the Constitutional safeguards for the contingent House election, where the members of Congress could be swayed be improper interests, both foreign and domestic:

the question then arose, how was this election to be guarded to prevent, as far as human prudence could, improper domestic combinations, or, what is infinitely worse, foreign interference? . . . It is expected and required by the Constitution, that the votes shall be secret and unknown, until opened in the presence of both Houses.

Charles Pinckney in the United States Senate (Mar. 28, 1800), 3 Farrand, supra note 27, at 389–90. The Framers understood this possibility, and addressed it in the Constitution through ballot secrecy and the temporal immediacy of the contingent election, id. at 390:

Wisely foreseeing this, the Constitution expressly orders that the Electors shall vote by ballot; and we all know, that to vote by ballot is to vote secretly; that the votes shall be sealed up, and not opened until the day appointed by law, and that if no election has been made by the Electors, an immediate one shall take place by the House of Representatives . . . that they [Congress] shall not have authority to adjourn for one moment, but shall instantly and on the spot, in case of no election by the Electors, proceed to the choice of a President, and not separate until it is determined.

[44] See supra note 43.

[45] U.S. Const. art. II, § 1; U.S. Const. amend. XII.

[46] See supra note 43 (excerpted Pinckney text).

[47] See id.

[48] See id.

[49] Immediately is defined as: “Without the intervention of any other cause or event; opposed to mediately.” Immediately, Webster’s Dictionary (1st ed. 1828). Conversely, mediately is defined as “By means or by a secondary cause, acting between the first cause and the effect.” Mediately, Webster’s Dictionary (1st ed. 1828).

[50] Statement of Charles Pinckney, present at the Federal Convention:

The best and most generally admired expounders of the English language, give this explanation of the word immediately; they say it means “instantly”– at the present time– without delay. This is the meaning the framers of the Constitution intended to give it, and it admits of no other. The plain, express, literal direction of that instrument therefore is, that in case of no election, the House of Representatives, voting by States, are immediately, that is instantly, and on the spot, without leaving the House in which they are then assembled, and without adjournment, to choose . . . who is to be the Executive.”

Charles Pinckney in the United States Senate (Mar. 28, 1800), 3 Farrand, supra note 27, at 389.

[51] See The Federalist No. 45, at 98 (James Madison) (Michael A. Genovese ed., 2009) (“The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. . . . Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment . . . .”).

[52] Wechsler, supra note 24, at 543.

[53] Rufus King in the United States Senate (Mar. 18, 1824), 3 Farrand, supra note 27, at 462.

[54] Over 700 proposals to reform or eliminate the Electoral College have been introduced in Congress. Thomas H. Neale, Cong. Research Serv., R43823, The National Popular Vote Initiative: Direct Election of the President by Interstate Compact 1 (Dec. 12, 2014). Of those 700, over 100 proposed direct election of the President as the alternative. Hardaway, supra note 17, at 156.

[55] See Gary L. Gregg II, The Origins and Meaning of the Electoral College, in Securing Democracy: Why We Have an Electoral College, at 15–16 (Gary L. Gregg II ed., 2001).

[56] The Federalist No. 68 (Alexander Hamilton), at 191 (Michael A. Genovese ed., 2009).

[57] See Gregg, supra note 55, at 15–16.

[58] See Bush v. Gore, 531 U.S. 98, 104 (2000) (finding that state legislature have “plenary” power to choose the manner of elector appointment because an “individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college.”) (citing McPherson v. Blacker, 146 U.S. 1, 35 (1892))

[59] This Note is not meant to argue for or against faithless electors, as this could be an entire law review article in and of itself. Instead, this Note accepts this conclusion—that absent state regulation, electors could be faithless—as a necessary premise, because the Compact requires states to bind their electors. For an example of an argument for faithless electors, see Stephen M. Sheppard, A Case for the Electoral College and for Its Faithless Elector, 2015 Wisc. L. Rev. Online 1, 7–11 (2015).

[60] The Federalist No. 68 (Alexander Hamilton), at 189 (Michael A. Genovese ed., 2009).

[61] In fact, many states currently have laws binding their electors to the winner of that individual state’s popular vote.

See State Control of Electors, FairVote, (last visited Apr. 11, 2017), http://archive.fairvote.org/?page=967 [https://perma.cc/4CR7-USE7]. See generally Ray v. Blair, 343 U.S. 214, 230–31 (1952), infra note 99–102 and associated text (confirming Alabama’s authority—at least for presidential primaries—to, through the Alabama Democratic Party, force electors to pledge to vote for the party’s nominees before being certified for the Democratic National Convention).

[62] See generally Wechsler, supra note 24; Clark, supra note 25.

[63] The Federalist No. 45 (James Madison), at 98 (Michael A. Genovese ed., 2009). (“The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the state legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it.”).

[64] For a highlight of the movement, see George H. Haynes, The Election Of Senators 133–48 (1906) (detailing past examples where voters brought their weight to bear on senatorial elections through states).

[65] U.S. Const. art. I, § 3, cl. 1 (previously reading “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof . . .”).

[66] See Haynes, supra note 64.

[67] U.S. Const. amend. XVII.

[68] Rufus King in the United States Senate (Mar. 18, 1824), 3 Farrand, supra note 27, at 462. In further support of this argument, see generally Ross & Hardaway, supra note 13, at 430; Tara Ross, Legal and Logistical Ramifications of the National Popular Vote Plan, 11 Engage 37, 37–43 (Sept. 2010).

[69] See, e.g., Tom Hamburger and Joni James, Electoral College Picks Bush, Faces an Uncertain Future, Wall St. J., Dec. 19, 2000, http://www.wsj.com/articles/SB977159215541437555 [https://perma.cc/44RV-8T8K] (detailing proposal of Sen. Dick Durbin and Rep. Ray LaHood); John Harwood, Fixing the Electoral System: Lessons From States Hold Hope for Reform, Wall St. J., Dec. 22, 2000, http://www.wsj.com/articles/SB97743802252037601 [https://perma.cc/5TAH-AB92]. But see Editorial, The Case for the Electoral College, N.Y. Times, Dec. 19, 2000, http://www.nytimes.com/2000/12/19/opinion/the-case-for-the-electoral-college.html [https://perma.cc/L789-454W]. Electoral reform fervor again reached fever pitch following the 2016 election, which saw President Donald J. Trump win the election with a deficit in the national popular vote of nearly three million votes, see, e.g., Editorial, Time to End the Electoral College, N.Y. Times, Dec. 19, 2016, https://www.nytimes.com/2016/12/19/opinion/time-to-end-the-electoral-college.html [https://perma.cc/8V82-EPPW], but it is still too early to tell whether support of the Compact will grow in enough states to put the Compact into effect, see, e.g., Jonathan Mahler and Steve Eder, The Electoral College Is Hated by Many. So Why Does It Endure?, N.Y. Times, Nov. 10, 2016, http://www.nytimes.com/2016/11/11/us/politics/the-electoral-college-is-hated-by-many-so-why-does-it-endure.html [https://perma.cc/DYD9-2XEZ].

[70] See discussion supra note 54; Williams, supra note 14, at 1535.

[71] The Compact was first suggested by Robert Bennett in 2000, who elaborated on his proposal in 2006, see Robert Bennett, Taming the Electoral College (2006). The Amar brothers, both law professors, are the other intellectual founders of this idea. See generally Amar & Amar, supra note 10.

[72] For the text of the Compact, see National Popular Vote, supra note 9.

[73] See id.

[74] These states are: California, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, Vermont, and Washington, in addition to the District of Columbia. National Popular Vote, supra note 9.

[75] See Neale, supra note 54, at 9.

[76] See National Popular Vote, supra note 9.

[77] For reasons in support of the Compact, see Bennett, supra note 71. For an article highlighting the failings of the Compact, see Williams, supra note 14, at 1540–62.

[78] See Explanation, National Popular Vote, supra note 9.

[79] See National Popular Vote, supra note 9. Such “misfires” occurred in the 2000 election of President George W. Bush and the 2016 election of President Donald J. Trump, leading to calls to abandon the Electoral College in some way. See supra note 69 (citing articles on the 2000 and 2016 election reactions).

[80] For a more in depth discussion of arguments in support of the Compact, see John R. Koza et al., Every Vote Equal: A State-based Plan for Electing the President by National Popular Vote (3d ed. 2011).

[81] See Williams, supra note 14, at 1573.

[82] See supra Section I.C. (on the Framers’ emphasis on product over process)

[83] For a discussion of states’ nature as distinct political communities, which then necessitates that presidential candidates be supported for national, not regional, reasons, see James R. Stoner Jr., Federalism, the States, and the Electoral College, in Securing Democracy: Why We Have an Electoral College, supra note 55, at 43–54.

[84] See Hans von Spakovsky, Destroying the Electoral College: The Anti–Federalist National Popular Vote Scheme, The Heritage Foundation (October 27, 2011), http://www.heritage.org/election-integrity/report/destroying-the-electoral-college-the-anti-federalist-national-popular [https://perma.cc/MDX8-TWJY]; Williams, supra note 14, at 1578–79.

[85] Robert M. Alexander, Presidential Electors and the Electoral College: An Examination of Lobbying, Wavering Electors, and Campaigns for Faithless Votes 171 (2012) (describing interview with elector, Apr. 16, 2004).

[86] For the “plenary” descriptor, see Bush v. Gore, 531 U.S. 98, 104 (2000) (describing the state’s power to regulate elections in comparison to the individual voter). See also U.S. Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452, 472–73 (1978) (outlining three factors for evaluating whether a multistate compact violates federalism: (1) whether the compact gives a member state new political power; (2) whether the compact delegates sovereign power; and (3) whether the compact allows states to withdraw at any time); Ross & Hardaway, supra note 13, at 422–29 (arguing that the NPVIC implicates the first and third U.S. Steel factors).

[87] For a discussion of numerous critiques of the Compact, see Ian J. Drake, Federal Roadblocks: The Constitution and the National Popular Vote Interstate Compact, 44 Publius: The Journal of Federalism 681, 681–82, 692–93, which argues that approval of an interstate compact “transforms an interstate compact within [the Compact] Clause into a law of the United States,” and thus Congress can only approve an interstate compact if it already possesses the power to enact the agreement on its own initiative under the Constitution.). And with regard to the Electoral College, Congress is only allowed to set the date and time of the initial vote. See McPherson v. Blacker, 146 U.S. 1, 35 (1892).

[88] 514 U.S. 779 (1996).

[89] See id. at 831.

[90] See id. at 783.

[91] Id. at 831.

[92] See id. at 832 (“Petitioners would have us believe, however, that even as the Framers carefully circumscribed congressional power to set qualifications, they intended to allow Congress to achieve the same result . . . .”).

[93] Id. at 837.

[94] 146 U.S. 1 (1892); see also id. at 26 (emphasizing that district-based election was still “the expression of the voice of the state”)

[95] See id. at 24.

[96] See id. at 26 (noting that the validity of district-based apportionment, once “usual[],” “has never been doubted”).

[97] Id. at 36.

[98] See id. at 35.

[99] 343 U.S. 214 (1952).

[100] See id. at 214–15.

[101] See id. at 215.

[102] See id. at 227–30.

[103] See, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1996); Clinton v. City of New York, 524 U.S. 417, 439 (1998); INS v. Chadha, 462 U.S. 919, 951 (1983).

[104] See City of New York, 524 U.S. 417, 439; Chadha, 462 U.S. at 951.

[105] Chadha, 462 U.S. at 952.

[106] See id. at 919.

[107] See id. at 923.

[108] See id. at 959.

[109] See id. at 946–51 (citing, 1 Farrand, supra note 27, at 99–104 (debate concerning override of Presidential veto); 1 Farrand, supra note 27, at 176–77 (debate concerning election of the President); 1 Farrand, supra note 27, at 484–91 (debate concerning equal allotment of Senators); 1 Farrand, supra note 27, at 254 (speech of James Wilson); 2 Farrand, supra note 27, at 301–02 (speech of James Madison); The Federalist Nos. 22 (Alexander Hamilton); 51 (James Madison), 62 (James Madison), 73 (Alexander Hamilton).

[110] Id. at 951.

[111] Id.

[112] Id. at 958–59.

[113] Clinton v. City of New York, 524 U.S. 417, 421 (1998).

[114] See id. at 421.

[115] See id. at 439–40.

[116] Id. at 449.

[117] INS v. Chadha, 462 U.S. 919, 959 (1983).

[118] See supra Section I.C.

[119] See Amar, supra note 10.

[120] See Explanation, National Popular Vote, supra note 9.

[121] See supra Section I.C.

[122] See supra notes 22–24 and accompanying text for a discussion on the disproportionate influence of small states.

[123] See supra Section I.C.

[124] See id.

[125] For an argument on how the rise of political parties, which were not in existence at the Founding, intrudes upon traditional federalism, see James A. Gardner, The Myth of State Autonomy: Federalism, Political Parties, and the National Colonization of State Politics, 29 J.L. & Pol. 1, 68 (2013).

[126] See supra note 59 (for a discussion on elector voting discretion, especially faithless electors).

[127] See supra note 125.

[128] See supra notes 17–25 and accompanying text (discussion of the historical context pre–Convention, specifically the commercial alliances).

[129] See Explanation, National Popular Vote, supra note 9.

[130] While it is beyond the scope of this Note to argue for or against a general direct popular vote as a matter of policy, whether achieved through the Compact or constitutional amendment, there are a few legal issues that such a manner of election could present. A direct popular election could implicate the Guarantee Clause of Article IV, Section 4, which guarantees a “Republican Form of Government.” See U.S. Const. art. IV, § 4. Additionally, because of varying voter qualifications and voting systems throughout the states, a direct popular election could violate the Equal Protection Clause of the Fourteenth Amendment. See U.S. Const. amend. XIV. For a broader discussion of these other arguments against the Compact, see Ross & Hardaway, supra note 13, at 422–30.

Most relevant to this Note’s discussion, a direct popular vote would establish what even the Framers, when they addressed the proposal just twice and struck it down with near unanimous support both times, found to be a troubling mode of selection of the executive. See supra note 29 and accompanying text (noting that direct popular vote was the least favored mode of selection of the executive, as seen by the 9-1 and 9-2 votes rejecting it).

[131] See supra Section I.C; supra note 29 and accompanying text (noting that direct popular vote was the least favored mode of selection of the executive); supra note 28 (detailing the back and forth debate at the Convention on the manner of selection of the executive).

[132] See U.S. Term Limits v. Thornton, 514 U.S. 779, 837 (1996).

[133] See McPherson v. Blacker, 146 U.S. 1, 26 (1892).

[134] See Gregg, supra note 55, at 15–16; supra Section I.C.

[135] Rufus King in the Senate of the United States (Mar. 18, 1824), 3 Farrand, supra note 27, at 462. In further support of this argument, see generally Ross & Hardaway, supra note 13, at 430; Ross, supra note 68.

[136] See Clinton v. City of New York, 524 U.S. 439 (1998); INS v. Chadha, 462 U.S. 919, 951 (1983).

[137] Chadha, 462 U.S. at 946, 959.

[138] See; id. at 951; City of New York, 524 U.S. at 439.

[139] U.S. Term Limits v. Thornton, 514 U.S. 779, 837 (1996).

[140] Id. at 831.

Desmond’s Law: Imprecise Language Makes for Inadequate Advocacy

Nila Bala[*]

In 2016, Connecticut was lauded for becoming the first state to pass legislation allowing for an animal advocate to be appointed in animal cruelty cases.^[1] The legislation, called “Desmond’s Law,” was named for a boxer-pit bull mix that was abused and strangled to death by Alex Wullaert in Branford, Connecticut.^[2] Desmond’s body was found in a trash bag in the woods, emaciated, bruised, and starved.[3] Wullaert received accelerated rehabilitation, which meant that his charges were dismissed and his record was wiped clean.^[4] In response to Wullaert’s sentence, animal activists, calling themselves “Desmond’s Army,” rallied for animals to have a voice in court.[5]

News outlets have reported that Connecticut’s new law is similar to laws that appoint attorneys for the children and the infirm.^[6] National Public Radio, for example, expressed that Connecticut is “the first state to provide animals with court-appointed advocates to represent them in abuse and cruelty cases, similar to laws that provide for victims’ or children’s advocates.”^[7] Similarly, The New York Times described the law appointing “advocates for dogs and cats” as part of “a rising movement in the criminal justice system” that “has placed an emphasis on giving more of a voice to and adding support for crime victims,” such as “in cases involving children and the infirm.”^[8]

However, Desmond’s Law differs significantly from the laws that appoint advocates for children and vulnerable victims. Unlike those laws, advocates under Desmond’s Law do not represent the animal.^[9] According to the statute’s text, the advocate, who is a volunteer attorney or supervised law student, may “present information or recommendations to the court pertinent to determinations that relate to the interests of justice.”[10]

This Article examines why lawmakers chose to word the statute to protect the “interests of justice” rather than the animal’s interests and will argue that it was motivated by the historical underpinnings of the animal rights movement. While Desmond’s Law is an important first step in protecting animal welfare, this Article also explores the real drawbacks that the wording will present in animal cruelty cases.

The “Interests of Justice”: Already a Term of Art

There is already an advocate in the courtroom that represents the “interests of justice”—the prosecutor.^[11] The public prosecutor’s role is to be an impartial minister of justice, a unique role that includes an interest in judicial efficiency and governmental economy, as well as special obligations to the defendant.^[12] These interests are different from, and can even conflict with, a victim’s interests.^[13] A prosecutor may decline to prosecute a case when a victim would prefer to go forward, or vice versa. Given that prosecutors do not represent victims, victims’ rights advocates have long argued for victims to have a separate and established place in criminal procedure.^[14] Similarly, when children participate in the juvenile justice system or child welfare proceedings, an individual is appointed to represent them.^[15]

The “interests of justice” is a term of art and has defined the prosecutor’s role for decades, at home and abroad.^[16] We could say it is in the “interests of justice” to protect children’s and victims’ rights, and it is in the “interests of justice” to protect defendants’ rights. Indeed, every attorney, at some level, has an obligation to the “interests of justice.” That statement is accurate, but ultimately vague and imprecise in defining the role of various advocates in the courtroom.

Lawmakers yearned to fashion a novel advocacy position for animals in the courtroom giving a voice to the voiceless.[17] However, the wording of the statute demonstrates an underlying fear of giving animals too much of a voice. The law was opposed by both the Connecticut Veterinary Medical Association and the Connecticut Federation of Dog Clubs and Responsible Dog Owners, arguing in part that a law providing an advocate for animals in the courtroom would give animals legal standing.^[18] Perhaps in the process of acquiescing to competing interests, Desmond’s Law has been gutted of its true intent—to provide meaningful advocacy for animals’ interests, not simply the “interests of justice.”[19]

Three Ways to Frame the Animal-Human Relationship

The language of Desmond’s Law demonstrates the continuing ambivalence in framing the status of animals in the law. Historically, animals have only been protected to the extent that they provide value to human beings. A framework put forth by Professor Margit Livingston helps to explain the deliberate wording of Desmond’s Law.[20] Livingston describes three distinct views of animals’ relationships to humans, mirroring the religious and philosophical beliefs of different time periods throughout history.

Under the first view, animals’ interests are entirely subordinate to humans’ interests. Thus, the earliest laws treated animals as purely property, and the only crimes that could be committed against animals were those that could be committed against the owner’s property—malicious mischief and trespass.^[21] A second view is that animals’ interests are intertwined with humans’ interests. Theorists of this view argued that cruelty toward animals should be prevented because it is linked to cruelty toward people.^[22] This view, at least to some extent, undergirds most modern animal cruelty laws.

Desmond’s Law, in certain aspects, reflects this second view.[23] For example, the Facebook page for the “Justice for Desmond” campaign^[24] displays a graphic image of a face that is half-dog and half-woman, being shot in the head.^[25] The banner proclaims, “Who mistreats or kills an animal can murder too. You could be the next victim.”[26] In this view, an animal’s value is derivative—that is, their value is conditioned upon their benefit to humans. Given the long-held legal status of animals as personal property, this perspective is not surprising.

There is nothing inherently wrong with wanting to protect human victims as well as animal victims. The fact that animal abuse can be an indicator for human abuse should be noted by law enforcement and used as an investigative tool when appropriate. However, a view predicated primarily on derivative value—also termed extrinsic or instrumental value—is problematic. Derivative value is conditional. If the condition changes, then logically the value can also shift or disappear. For example, if we decry animal cruelty only because it is intertwined with human cruelty, if that link is disproven, there may be little reason to protect the animal anymore. More than eighty percent of Americans nationwide acknowledge the intrinsic value of wildlife even when it does not lead to instrumental gain for humans.^[27] We are moving towards valuing animals for what they are, not just for what they can do for us.

The “interests of justice” language demonstrates the discomfort in the law over whether animals’ interests and human interests are intertwined or distinct. By subsuming the advocate’s duties under the “interests of justice,” Desmond’s Law seems to indicate some equivalency between the people’s interests—as represented by the prosecutor—and the animals’ interests. Such a view denies the possibility that animals do have distinct interests.

In contrast, Livingston’s third view presents animals as having their own interests, separate from human interests. Desmond’s Law embraces this view as well, by giving animals an advocate in the first place. If the law truly intended to protect animals only because of the value they provide people, why a separate advocate in the first place? Animal cruelty cases are often a lower priority to underfunded, overwhelmed prosecutors.^[28] But in response, lawmakers did not provide an investigator, special prosecutor, or additional funding mechanism for the prosecutor’s office; Desmond’s Law created a separate advocate.

Animals as Property, but More

Acknowledging animals as sentient beings, capable of suffering and having their own interests, does not mean we must grant animals personhood or standing to bring civil matters. Protecting animals and giving them an advocate in criminal cases simply means acknowledging, as courts have already expressed, that “[pets occupy] a special place somewhere in between a person and a piece of personal property,”^[29] and that the property label “inadequately and inaccurately describes the relationship between a human and a dog.”^[30] Animals are not like tables or land. They possess the ability to suffer. They are beloved family members. Dogs and cats—the particular animals protected by Desmond’s Law—feel, think, and demonstrate empathy.^[31]

Even if we were to keep the “property” label to describe animals, it does not follow that owners can do whatever they wish with their animals. In many domains, property rights of owners are regulated. Cass Sunstein analogizes that: “You own your house, but you are probably not allowed to burn it down or blow it up, or to use it as a concert hall. You own your stereo, but if you have nearby neighbors you cannot play music as loud as you want.”^[32] Legal ownership does not mean people can do whatever they wish with animals, and rules can still be enacted to prevent gratuitous suffering.

Perhaps it is the semantics of property that are preventing us as a society from adequately protecting the welfare of animals.^[33] However, courts can, and have, dealt with these sorts of issues before. The Oregon Supreme Court, in a trilogy of cases, defined a jurisprudence that allows animals to be considered property but does not force the conclusion that they should be treated as non-sentient objects.[34] Acknowledging that animals have an interest in being free from beatings or starvation does not require granting animals “human” rights, like the right to vote.

It is also possible that the imprecise wording of Desmond’s Law originates from uneasiness towards bestowing legal interests to entities that cannot voice their own needs. Child advocacy has struggled with this conundrum for as long as family and juvenile courts have existed. However, despite difficulties in discerning the interests of an infant or a mentally disabled individual, the law has created an advocate for these parties and delineated a clear role for them.[35] Given other analogous situations in the law, where the law has accommodated advocacy for the voiceless, the law can, and should, accommodate an animal’s interests.

Drawbacks of Imprecise Language

Appointing yet another advocate for the “interests of justice” is statutorily imprecise and provides no guidance to animal advocates on whether their position should be distinct from the prosecutor. Without defining animals’ interests as distinct from prosecutors’, problems can—and in animal cruelty cases more broadly, already have—manifested. For example, animal victims of cruelty are routinely seized and kept as evidence pending a criminal conviction, which can be for months or even years, in the case of a felony charge.[36] Animals are often kept in sub-standard conditions and environments that challenge even healthy animals, and are kept from being fostered or adopted.[37] A prosecutor and Desmond’s Law advocate may both be representing the “interests of justice,” but clearly, their interests would differ in this case.

The prosecutor and animal advocate would also likely disagree in dogfighting cases, where animals seized are often declared irredeemable by the state. Dogs seized in dogfighting cases are very expensive to house and care for as they must be individually housed by those trained in caring for fighting dogs.[38] In most instances, the state—in the “interests of justice”—would find it is practical and humane to euthanize them.[39] An advocate can make all the difference and can fight for a very different outcome for the dogs involved. In the Michael Vick dogfighting case, the United States District Court, in an unprecedented move, appointed Rebecca Huss as the guardian/special master to advise the Court regarding the final disposition of the remaining forty-eight seized dogs.[40] Because of her recommendations, many of the dogs were dispersed to rescue organizations and were rehabilitated and adopted.[41]

As of May 2018, there had thus far been sixteen cases where Desmond’s Law advocates had been appointed, and reports were positive.[42] However, lawmakers would be well-served to clarify the advocate’s position in Desmond’s Law, rather than shy away from providing a true advocate for animals’ interests because of an unfound fear of rights burgeoning out of control. The rule of law demands that, as much as is possible—given the inherent constraints of language—actors should know in advance what the law demands of them and what they can expect from court proceedings. Utilizing more precise language to describe the advocate’s role will only make a good idea—having an animal advocate in the courtroom—even better.

Conclusion

As a society, we are finally moving closer to a model that acknowledges the sentience, empathy, and value that animals possess in and of themselves. Desmond’s Law is a much-needed first step. As it is the first law of its type, it is serving as a model for other states.[43] Let it truly be a model. Connecticut lawmakers owe it to their constituents, to the different parties in the courtroom, and most of all, to animals like Desmond, to craft a clear, precise law, one that does not shy away from acknowledging animals’ interests as distinct and real.

[*] Associate Director of Criminal Justice Policy, R Street Institute. J.D. 2012, Yale Law School; B.A. 2008, Stanford University. The views expressed in this article are solely those of the author and not of R Street Institute. Special thanks to David Rosengard, Staff Attorney at the Animal Legal Defense Fund’s Criminal Justice Project, for his assistance.

^[1] To be clear, it is the news outlets’ characterization of the law, that the advocate represents the animal. In reality, the law makes clear that the advocate does not represent the animals’ interests specifically. See Rick Rojas, Abused Dogs and Cats Now Have a (Human) Voice in Connecticut Courts, N.Y. Times, Aug. 28, 2017,  https://www.nytimes.com/2017/08/27/nyregion/animal-abuse-connecticut-court-advocates.html?_r=0 [https://perma.cc/3KEP-6ANS]; Laurel Wamsley, In A First, Connecticut’s Animals Get Advocates In The Courtroom, Nat’l Pub. Radio (June 2, 2017, 5:46 PM), https://www.npr.org/sections/thetwo-way/2017/06/02/531283235/in-a-first-connecticuts-animals-get-advocates-in-the-courtroom [https://perma.cc/T7N6-BESX]; J.B. Wogan, In Connecticut, Abused Animals May Get Their Day in Court, Governing (May 31, 2016), http://www.governing.com/topics/public-justice-safety/gov-connecticut-courts-animal-advocates.html [https://perma.cc/QNY5-4CVF].

^[2] Pat Eaton-Robb, In One State, Abused Animals Get a Legal Voice in Court, U.S. News (June 2, 2017, 9:11 AM), https://www.usnews.com/news/best-states/connecticut/articles/2017-06-02/state-experiments-with-court-advocates-for-abused-animals [https://perma.cc/7FXA-7UDB].

[3] Id.

^[4] Id.

[5] Rojas, supra note 1.

^[6] See supra note 1.

^[7] Wamsley, supra note 1.

^[8] Rojas, supra note 1.

^[9] 2016 Conn Acts § 16-30 (Reg. Sess.) (available at https://www.cga.ct.gov/2016/ACT/pa/2016PA-00030-R00HB-05344-PA.htm) [https://perma.cc/Z2GK-S9YR].

[10] Id.

^[11] Berger v. United States, 295 U.S. 78, 88 (1935).

^[12] Id.

^[13] Erin Gardner Schenk & David L. Shakes, Into the Wild Blue Yonder of Legal Representation for Victims of Sexual Assault: Can U.S. State Courts Learn from the Military?, 6 U. Denv. Crim. L. Rev. 1, 25 (2016).

^[14] One result of this movement was Congress’s Crime Victims’ Rights Act, which grants to victims an express, enforceable right to be present and “reasonably heard” at sentencing in federal courts. Crime Victims’ Rights Act of 2004, enacted as part of the Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260, 2261–65 (codified in relevant part at 18 U.S.C.A. § 3771 (West 2018)).

^[15] See Amy E. Halbrook, Kentucky’s Guardian Ad Litem Litigation: A Model for Seeking Role Clarity, 37 Child. Legal Rts. J. 81, 122­­­­­­­­­–27 (2017).

^[16] See Henry Lovat, Delineating the Interests of Justice, 35 Denv. J. Int’l L. & Pol’y 275 (2007) (commenting on the use of the phrase by the ICC).

[17] A previous version of the bill did include the animal’s interests or the “interests of justice.” See supra note 9. See generally, Delcianna J. Winders, Confronting Barriers to the Courtroom for Animal Advocates, 13 Animal L. 1, 2 (2006).

^[18] Jessica Rubin, How dogs and cats can get their day in court, The Conversation (Nov. 2, 2017, 7:39 PM), http://theconversation.com/how-dogs-and-cats-can-get-their-day-in-court-80790 [https://perma.cc/78MW-CWCF]. The organizations opposing the law argued that it would change the relationship between owner and pet, cause “legal mischief,” and interfere with the rights of owners. Id.

[19] See Halbrook, supra note 15.

[20] Margit Livingston, Desecrating the Ark: Animal Abuse and the Law’s Role in Prevention, 87 Iowa L. Rev. 1, 73 (2001).

^[21] See Gary L. Francione, Animals, Property, and the Law 121 (1995).

^[22] Livingston, supra note 20, at 13.

[23] See, e.g., Joan MacLeod Heminway & Patricia Graves Lenaghan, Safe Haven Conundrum: The Use of Special Bailments to Keep Pets Out of Violent Households, 12 Tenn. J.L. & Pol’y 79, 99 (2017) (“The passage of the law appears to be connected to concern over both the link between animal abuse and violence against people and the paucity of animal abuse cases resulting in a conviction.”).

^[24] The Facebook page was started by those who took care of Desmond when he was at two different animal shelters. Kayte Mulligan, Not “Just A Dog”: The Justice for Desmond Campaign, New Canaan Patch (July 23, 2012, 10:16 PM), https://patch.com/connecticut/newcanaan/bp–not-just-a-dog-the-justice-for-desmond-campaign [https://perma.cc/8KHH-AVBY].

^[25] Justice for Desmond, Facebook (Jan. 3, 2018, 2:51 PM), https://www.facebook.com/JusticeForDesmond/ [https://perma.cc/P9UK-V2ZP].

[26] Id.

^[27] Jeremy Bruskotter, Michael Nelson & John Vucetich, Does nature possess intrinsic value? An empirical assessment of Americans’ beliefs 1 (2015), http://www.michaelpnelson.com/Publications_files/Bruskotter%20et%20al.%20%282015%29%20IV%20Report.pdf [https://perma.cc/JBX5-GGJP].

^[28] Animal Legal Def. Fund, Why Prosecutors Don’t Prosecute (Dec. 3, 2017), www.aldf.org/article.php?id=245 [https://perma.cc/668S-KDRF]; see Livingston, supra note 20, at 4. (noting that prosecutors are hesitant to devote resources to animal cruelty cases, which are “frequently only misdemeanors”).

^[29] Corso v. Crawford Dog & Cat Hosp., Inc., 415 N.Y.S.2d 182, 183 (N.Y. Civ. Ct. 1979).

^[30] Rabideau v. City of Racine, 627 N.W.2d 795, 798 (Wis. 2001).

^[31] Simon Worrall, Yes, Animals Think And Feel. Here’s How We Know, Nat’l Geographic (July 15, 2015), https://news.nationalgeographic.com/2015/07/150714-animal-dog-thinking-feelings-brain-science/ [https://perma.cc/9JMJ-FVXD].

^[32] Cass Sunstein, Slaughterhouse Jive, The New Republic (Jan. 29, 2001), https://newrepublic.com/article/63234/slaughterhouse-jive [https://perma.cc/N8UM-U2QR].

^[33] Id.

[34] Lora Dunn & David B. Rosengard, A Dog Is Not A Stereo: The Role of Animal Sentience in Determining the Scope of Owner Privacy Interests Under Oregon Law, 23 Animal L. 451, 461 (2017).

[35] Interestingly, in the United States, animal cruelty laws and animal protection agencies actually preceded a recognition of children’s rights. After establishing the American Society for the Prevention of Cruelty to Animals (ASPCA), the founders began to work on extending the same protective measures that existed for animals to children. Elizabeth W. LeBow & Debbie J. Cherney, The Role of Animal Welfare Legislation in Shaping Child Protection in the United States, 2 Int’l J. Educ. & Soc. Sci. 35, 40 (2015).

[36] Madeline Bernstein & Barry M. Wolf, Time to Feed the Evidence: What to Do With Seized Animals, 35 Envtl. L. Rep. 10679, 10683 (2005). There are forty-four jurisdictions where any and all neglected or abused animals can be seized prior to their owner’s conviction on cruelty charges. See id.

[37] Id. at 10679.

[38] Hanna Gibson, A Brief Summary of Dog Fighting Laws, Animal Legal & Historical Ctr. (2005), https://www.animallaw.info/article/detailed-discussion-dog-fighting [https://perma.cc/U6LR-CAZD].

[39] Id.

[40] Animal Legal Def. Fund, Animal Fighting Case Study: Michael Vick (last updated Dec. 15, 2010), http://aldf.org/resources/laws-cases/animal-fighting-case-study-michael-vick/ [https://perma.cc/H8G9-H74Z].

[41] Id.

[42] Daniel Tepfer, Bridgeport ‘legal beagle’ advocates for abused dogs, Conn. Post, (May 06, 2018, 3:35 PM), https://www.ctpost.com/local/article/Bridgeport-legal-beagle-advocates-for-12889211.php [https://perma.cc/CGG9-NXNN].

[43] Jordan Otero Sisson, Abused Animals Will Get Voice in Court This Month Thanks to New Law, Hartford Courant (Apr. 10, 2017, 6:00 AM), http://www.courant.com/news/connecticut/hc-desmonds-law-animal-advocates-20170331-story.html [https://perma.cc/GQ9R-JEXM]; Angela Morris, Animal Law Clinics Become Pet Projects at Law Schools, Tex. Lawyer (Nov. 13, 2017, 2:25 PM), https://www.law.com/texaslawyer/sites/texaslawyer/2017/11/13/animal-law-clinics-become-pet-projects-at-law-schools/ [https://perma.cc/4NTB-CF3X].

The Coming Collapse of the Paris Climate Agreement

By Bryan H. Druzin [*]

I. Introduction

Now that the Trump administration has abandoned the Paris Climate Agreement, the question is whether the agreement will collapse. A strong case can be made that it will indeed unravel—perhaps not immediately, but eventually. Although the world’s leaders have been quick to reaffirm their continued resolve to implement the agreement,[1] the problem is that multilateral environmental agreements are uniquely fragile because their value depends directly upon the number of states that are party to it and the collective perceptions that surround this. Environmental agreements have a certain “all or nothing” quality to them. For example, an agreement to reduce carbon emissions between only two states provides little value. The value of the same agreement, however, increases dramatically with twenty, ninety, or 195 governments in hand. They are thus extremely reliant on unanimity of agreement and uniquely sensitive to the loss of it.

This is why it was so vital that the Paris Agreement lock down the participation of all the states in the international system.[2] For all of its flaws, the Paris Agreement had the strength of unanimity. Countries that remain in an environmental agreement while other states pull out understandably grow reluctant to assume the burden of their commitments.[3] Because of this, withdrawal—particularly of a major player such as the U.S.—can create a knock-on effect, causing other states to follow. A slow trickle can become a flood. This dynamic renders multilateral environmental agreements extremely “tippy” and highly susceptible to collapse.[4] For international environmental cooperation to succeed, everyone needs to be onboard and everyone needs to stay onboard.

Many hold hope that the U.S. will ultimately not withdraw from the Paris Agreement, noting that under Article 28(1) the U.S. cannot exit the agreement until three years from the date on which the agreement entered into force for the party, which in the case of the U.S. was November 4, 2016. Article 28(2) mandates that withdrawal will then take effect one year after notification is received, putting the earliest date of actual withdrawal after the next presidential election, which is to be held on November 3, 2020.[5] However, this ignores that, while not yet manifest, the process of collapse has in fact already begun. The issue now is whether further erosion can be prevented. Because the agreement depends so much on international unanimity, the Paris Agreement was dealt a potentially fatal blow the moment the U.S. signaled its intention to withdraw.

II. Multilateral Environmental Agreements Turn on Network Effects

A multilateral environmental agreement’s value increases as more parties comply with the agreement, and the inverse is equally true: a multilateral environmental agreement’s value decreases commensurate with the number of actors who either do not comply or leave the agreement altogether. This is a classic example of a network effect.[6] The larger the network of adopters, the greater value the agreement provides and vice versa.[7] Language is a commonly employed example of a network effect. The more people who speak a language the greater its value. As its value increases, more people learn the language, and on it goes, increasing in value. This dynamic, however, can operate in either direction—it can thunder towards success or it can plunge towards failure.

Collective perceptions are immensely consequential under such conditions. Indeed, they reign supreme. Because the value of a multilateral environmental agreement depends upon how many other actors adopt it, agents’ choices are largely based on the expected size of the network.[8] In markets exhibiting network effects (as with any game with multiple equilibria), expectations are thus of paramount importance. As such, the network effect character of a multilateral environmental agreement renders it uniquely vulnerable to “bandwagons.” A positive bandwagon of actors joining the treaty is a case of increasing returns. A negative bandwagon of actors abandoning the treaty—a sort of “jumping ship” effect—is a case of the opposite, a death spiral towards escalating destabilization and eventual collapse.

III. Multilateral Environmental Agreements Are Uniquely Fragile

The unique nature of a multilateral environmental agreement—that its value is contingent upon other parties also complying—must be fully appreciated to understand the potential destructive impact of the U.S.’s withdrawal from the Paris Agreement. This dynamic is markedly different than those at play with most other kinds of international agreements. For example, in the case of a multilateral trade agreement, even if a large number of signatories exit the treaty, the agreement will still retain a substantial degree of value for the remaining treaty members. While such agreements may reap benefits from an increase in network size, unanimity, or near unanimity, is not such an essential element. They do not possess an “all or nothing” quality to them. As such, they can better withstand the blow of one or more parties withdrawing from the agreement. This logic does not hold for multilateral environmental agreements—even a trickle of nations exiting can trigger the withdrawal of more governments and bring about the agreement’s collapse.

Multilateral environmental agreements are not the only type of agreement that possess this “tippy” quality. For instance, in the case of International Labour Organization (ILO) treaties that impose international labor standards, the withdrawal of a state renders the states that remain in the treaty relatively less competitive. A similar process of decreasing value may metastasize in, for instance, treaties concerning intellectual property rights. Treaties, however, range in how vulnerable they are to negative bandwagons. Upon this spectrum of “tippiness,” multilateral environmental agreements clearly sit on the furthest end of fragility. There are several reasons that combine to render multilateral environmental agreements uniquely tippy. First, unlike other tippy agreements, multilateral environmental agreements offer no immediate advantages, only burden.[9] Such agreements usually require significant economic sacrifice with merely the promise of future benefit in the form of a negative gain (i.e. preventing environmental damage) and are typically public goods vulnerable to free riding. Compounding this, the sheer enormity of the challenge posed by climate change combined with the fact that states share a common environment that is oblivious to political borders demands that collective action be taken on a comprehensive scale.

Because the value of a multilateral environmental agreement is so dependent upon sweeping collective action, parties are uniquely sensitive to a loss in numbers and thus such agreements are highly susceptible to this pattern of failure.[10] A strong argument could be made that the Kyoto Protocol’s lack of success stemmed from its failure to secure an equal commitment from all the world’s states, thereby undermining its chances at success from its very inception.[11] The U.S.’s failure to ratify the Kyoto Protocol initiated a negative bandwagon, tipping the agreement towards inevitable failure. Canada’s subsequent withdrawal from Kyoto in 2011, citing as its primary justification the absence of the U.S. and China, furthered this erosion. The Kyoto Protocol was a far more comprehensive agreement than what effectively replaced it; however, it suffered from the same lack of unanimous participation the Paris Agreement is now facing. More than 100 countries, including China and India, were exempted—the Kyoto Protocol never achieved an equal global contribution. It fell, as it were, stillborn from the discordant consensus that created it.

IV. Now What?

U.S. participation in the Paris Agreement was crucial. The U.S. is historically responsible for more carbon emissions than any other nation.[12] While the U.S. comprises roughly four percent of the world’s population, it is responsible for close to a third of the total excess carbon dioxide that is warming the earth.[13] The U.S. is the biggest carbon polluter in history, and it simply unilaterally withdrew from the 195-nation agreement.

In the wake of the United States’s sudden withdrawal from the Paris Agreement, an exodus of other states may emerge as a negative bandwagon takes hold. Even if this does not occur in the short term, the U.S.’s withdrawal from the Paris Agreement will substantially weaken the agreement’s cohesion because confidence in other parties’ commitment has now been deeply undermined. At the present moment, perception can quickly become reality. If actors believe others will comply, they are likely to comply, but if actors believe others may not comply, they are in turn less likely to comply. Public international declarations of continuing commitment aside, each state is undoubtedly afraid other states will abandon the agreement. All is in doubt. The Trump administration’s decision to discard the U.S.’s commitment to the world has destabilized the agreement and has potentially already initiated a negative bandwagon that will likely cause the treaty to “tip” irreversibly towards collapse.

The fact that the Paris Agreement, possessing no compliance mechanisms, was already widely greeted with skepticism and perceived by many to be a weak foundation for cooperation only increases the likelihood that a collapse will occur. The Paris Agreement’s legislative underpinnings were never sturdy, and this was by design. While the agreement was technically binding in that it required participating governments to work towards decreasing their emissions, the key commitment—namely, the emission targets—were intentionally left non-binding.[14] This was to encourage the unanimous participation of the world’s nations, particularly key emerging economies like India and China who might have otherwise wavered.[15] Given the urgent need to subpoena the conscience of the world’s nations and move them to action, the hope was merely that the Paris accord would serve as a durable framework for binding future agreement.

But is there no small margin for optimism? The hope that the U.S. will eventually recommit to the agreement may be one. If global leaders perceive today that the U.S. will change its position four years from now, their commitment to the agreement may hold firm, averting a negative bandwagon. Four years, however, is a long stretch of time to keep such a massive agreement on life support now thrown into uncertainty. The world’s governments would have to be very confident in this political calculation and even more crucially, convinced that other countries share their certainty. Maybe other factors involved in the geopolitics of environmental protection may intervene. Despite the costs that the U.S.’s absence will bring, leaders like Emmanuel Macron, Angela Merkel, Justin Trudeau, and Xi Jinping have seized the opportunity to present themselves as responsible statesmen before global (and domestic) audiences by reaffirming their commitment to the agreement.

Perhaps opposing the Trump administration may be more valuable to these political figures than securing a competitive advantage for their economies. To be sure, there are political points to be scored in establishing oneself as the global counterpoint to Trump.[16] However, absent immediate and tangible demonstrations of commitment, these declarations ring hollow and are likely to be mutually perceived as little more than political theatre by the very governments that are making these noises.[17] Talk was already cheap, but with the sudden departure of the U.S. it has been made even cheaper. Unfortunately, a loss of consensus is a powerfully disruptive force. As such, a negative bandwagon may be difficult to prevent.

When the Paris Agreement was reached in the winter of 2015, I argued that the international community needed to seize that rare moment of global consensus and move quickly to graft a compliance framework onto the agreement precisely to avert the potential collapse of the accord, should the withdrawal of a significant player trigger a negative bandwagon.[18] This brief window of opportunity, it seems, has now closed. A major power has withdrawn from the agreement, and now there is no choice but to await the consequences of our inaction.[19] A process of collapse may have been irreversibly triggered. Most likely the Paris Agreement will now sputter along in its new incapacitated form for some time, similar to the Kyoto Protocol. But even if the Paris Agreement never fully collapses, with the most powerful actor in the international system absent, the Paris Agreement has now been profoundly enfeebled as a viable scaffolding for future environmental cooperation.

V. Conclusion

The U.S.’s jarring withdrawal from the Paris Agreement—a reckless abdication of global leadership—is a powerful signal to the international system that coordination has faltered. It has infused the agreement with a sudden miasma of doubt. The perception that commitment to the agreement may now also be flagging among other states will likely undermine compliance, becoming a self-fulfilling prophecy. As such, the possibility of a negative bandwagon taking hold now looms over the agreement. Substantial concrete action beyond mere declarations of support must be swiftly taken if we are to prevent the Paris Agreement from unraveling. Yet the international system is ensnared in a prisoner’s dilemma of historic proportion and consequence that constrains the actions of nations. We have seen this movie before with the failure of Kyoto. The Paris Agreement now faces a period of potential stagnation as parties either peel away from the agreement or fail to meet its terms. In an international system that lacks a central coercive authority, international environmental governance is exceedingly fragile. A small spark can incinerate cooperation. And the withdrawal of the U.S. from the Paris Agreement is no small spark—not by any stretch of the imagination. It is a lacerating blow.

[*] Assistant Professor and Director of LLM Common Law Program, Faculty of Law, The Chinese University of Hong Kong. PhD in Law, King’s College London; LL.M, LL.B., B.A., University of British Columbia.

[1] Somini Sengupta, Melissa Eddy & Chris Buckley, As Trump Exits Paris Agreement, Other Nations Are Defiant, N.Y. Times (June 1, 2017), https://www.nytimes.com/2017/06/01/world/europe/climate-paris-agreement-trump-china.html [https://perma.cc/5XVJ-77LY].

[2] Joby Warrick & Chris Mooney, 196 Countries Approve Historic Climate Agreement, Wash. Post (Dec. 12, 2015),  https://www.washingtonpost.com/news/energy-environment/wp/2015/12/12/proposed-historic-climate-pact-nears-final-vote/ [https://perma.cc/5NK7-ZDGP].

[3] The impact of the free riding problem in environmental conservation is central to the well-known tragedy of the commons, a concept first formulated in a rigorous way by Garrett Hardin. See G. Hardin, The Tragedy of the Commons, 162 Science 1243, 1248 (1968). It is also captured formally in game theory by the prisoner’s dilemma. For a good overview of the structural conditions that produce the dynamic, see Margaret Foddy, et al., Resolving Social Dilemmas: Dynamic, Structural, and Intergroup Aspects 9 (2013).

[4] For a similar analysis in this vein, see Scott Barrett, Environment and Statecraft: The Strategy of Environmental Treaty-Making: The Strategy of Environmental Treaty-Making 254–67 (2003).

[5] Madison Park, 3 ways Trump could dump Paris climate agreement, CNN (June 1, 2017), http://edition.cnn.com/2017/06/01/politics/paris-climate-agreement-trump-ways-to-withdraw/ [https://perma.cc/Q2MX-GZSP].

[6] Network effects emerge where the value of a product or service increases as the number of other agents using the same product or service grows, which in turn draws more users. See S.J. Liebowitz, et al., Network Externalities, in The New Palgrave Dictionary of Economics and the Law 671, 671 (Peter Newman ed., 1998). For the foundational literature on network effects, see Mark L. Katz & Carl Shapiro, Network Externalities, Competition, and Compatibility, 75 Am. Econ. Rev. 424, 424 (1985); see also Scott Barrett, Environment And Statecraft: The Strategy of Environmental Treaty-Making 261–62 (2003) (discussing network externalities in environmental treaties).

[7] I have discussed network effects at length elsewhere. See, e.g., Bryan Druzin, Anarchy, Order, and Trade: A structuralist Account of why a global Commercial Legal Order is emerging, 47 Vand. J. Transnat’l L. 1049, 1076–83 (2014); Bryan Druzin, Buying Commercial Law: Choice of Law, Choice of Forum, and Network Effect, 18 Tul. J. Int’l & Comp. L. 131 (2009); Bryan Druzin, Spontaneous Standardization and the New Lex Maritima, in The Role of Arbitration in Shipping Law 63–79 (2016); Bryan Druzin, Towards a Theory of Spontaneous Legal Standardization, J. of Int’l Disp. Settlement 1–29 (2016); Bryan Druzin, Why does Soft Law have any Power anyway?, Asian J. of Int’l L. 1–18 (2016).

[8] Luís M. B. Cabral, Introduction to Industrial Organization 312 (2000). I have written elsewhere on the impact of collective expectations in tippy treaties. See Bryan Druzin, The Parched Earth of Cooperation: How to solve the Tragedy of the Commons in International Environmental Governance, 27 Duke J. Comp. & Int’l L. 73, 96 (2016). I draw from that article in this section.

[9] While public figures may see benefits to their political reputation and the international standing of their country, such action also imposes personal political costs, as environmental protection typically conflicts with powerful private interests. Such interests may be corporate; however, elected political figures may also suffer a backlash from individual constituents affected by these measures.

[10] Bilateral environmental agreements are also vulnerable to this model of collapse. However, because the dynamic involves only two players, the pattern plays out in a less obvious sequential fashion.

[11] The developed nations of the world accepted the initial reductions called for under the Protocol, even though the reductions did not bind the developing world. See A.W. Galston & Christiana Z. Peppard, Expanding Horizons in Bioethics (2005). For a good general discussion of the failure of the Kyoto Protocol, see generally Gerald Kutney, Carbon Politics and the Failure of the Kyoto Protocol (2014) (examining the political gamesmanship throughout the Protocol’s negotiation process); David G. Victor, The Collapse of the Kyoto Protocol and the Struggle to Slow Global Warming (2011) (arguing that the Protocol did not provide for adequate monitoring and enforcement of emissions trading).

[12] Justin Gillis & Nadja Popovich, The U.S. Is the Biggest Carbon Polluter in History. It Just Walked Away From the Paris Climate Deal, N.Y. Times (June 1, 2017), https://www.nytimes.com/interactive/2017/06/01/climate/us-biggest-carbon-polluter-in-history-will-it-walk-away-from-the-paris-climate-deal.html [https://perma.cc/RR66-5FVT].

[13] Id.

[14] See Tess Bridgeman, Paris Is a Binding Agreement: Here’s Why that Matters, Just Security (June 4, 2017), https://www.justsecurity.org/41705/paris-binding-agreement-matters/ [https://perma.cc/Y6MM-NAK2].

[15] Todd Stern, Mr. Trump’s climate decision, Brookings Institution: Planet Policy (Mar. 6, 2017), https://www.brookings.edu/blog/planetpolicy/2017/03/06/mr-trumps-climate-decision/ [https://perma.cc/EKQ3-8U54].

[16] Emmanuel Macron’s appeal (in English) to “make our planet great again” stands out in this regard. See Vivienne Walt, France’s Emmanuel Macron Reaps the Benefits of Being the Anti-Trump, Time (June 12, 2017), http://time.com/4814715/emmanuel-macron-president-donald-trump-assembly/ [https://perma.cc/4GZZ-ZRTK].

[17] A similar process may play out on the sub-state level. Scores of states, municipalities, and private institutions within the U.S. are pledging to respect the agreement despite the national withdrawal. See Hiroko Tabuchi & Henry Fountain, Bucking Trump, These Cities, States and Companies Commit to Paris Accord, N.Y. Times (June 1, 2017), https://www.nytimes.com/2017/06/01/climate/american-cities-climate-standards.html [https://perma.cc/9VFA-8N3T]. However, the same dynamic pertains—without immediate powerful displays of commitment, a negative bandwagon will be difficult to avoid.

[18] See generally, Bryan Druzin, A Plan to Strengthen the Paris Climate Agreement, 84 Fordham L. Rev. 101 (2016) (proposing the creation of an international bond as a mechanism through which to signal commitment and thereby reinforce the Paris Agreement). I also published a more expansive and more rigorous examination of the proposal with the Duke Journal of Comparative of Comparative and International Law. See generally Druzin, supra note 8 (proposing the use of a signaling game to sustain cooperation and preempt the tragedy of the commons in international environmental governance).

[19] The compliance framework I articulated in the two pieces cited above could still be grafted onto the Paris Agreement. The absence of the U.S., however, would now make this task extremely difficult.

The Mathematics of Constitutional Failure

By Carrie Leonetti [*]

The federal courts were intended as anti-democratic structures.[1] Their interpretations of the federal constitution were supposed to be a counterweight to the excesses of the other two “democratic” branches.[2] The problem with this system is that the other two branches of government are not democratic. No one likes math less than I do, but the anti-democratic nature of our government only becomes apparent if one runs the numbers.

Begin with Congress. The Senate was designed to be less than democratic, as a concession to regional, states’-rights interests.[3] Its seats are decided not in proportion to electoral votes, but rather with an equal number of seats for each state, regardless of population.[4] California, the most populous state, has almost 39 million people. Wyoming, the least populous, has fewer than 600,000. Both get two Senators. So, in the Senate, the vote of each person in Wyoming counts for roughly sixty-seven times as much as the vote of each person in California.

This has ideological consequences. The high-population states, whose votes are diluted, tend to be “liberal” (California, New York, Illinois). The rural states, whose votes are supercharged, tend to be “conservative” (Wyoming, North Dakota, Alaska). So, the Senate ends up being not just unrepresentative geographically, but ideologically, as well.

The House of Representatives, by contrast, was supposed to have population-based representation.[5] But, due to gerrymandering, it no longer does. The total popular vote in the November election was divided almost evenly between Republicans and Democrats, with Republicans receiving about 56 million votes and Democrats receiving about 53 million.[6] The Republicans, however, ended up shellacking the Democrats in the House, with 239 seats compared to Democrats’ 193.[7] The contrast was even starker in 2012, when Democrats garnered several hundred thousand more total votes than Republicans in Congressional elections, but ended up as the minority party (201 seats compared to Republicans’ 234).[8] This is why media coverage of national elections focuses on whether Democrats can regain control of the Senate but not the House: because Republicans have figured out a way to control the House even when they get fewer votes than Democrats.

How? By controlling a super-majority of state legislatures, which are largely responsible for drawing federal Congressional districts. Prior to last month’s elections, Republicans had a controlling majority in thirty-two state legislatures, while Democrats only controlled thirteen. These state legislatures draw their federal Congressional districts in ways that “crack” Democratic-majority districts into different Republican-majority districts and “pack” inevitably Democratic-majority districts so that they are as Democratic as possible. Here is a simple snapshot of how this works. Imagine a metropolitan area with one million people in its core (which would amount to approximately 1.3 House seats, on average) with another million or so people ringing it, like a donut, in suburbs (another 1.3 House seats). All told, this metropolitan area would likely elect roughly three of its state’s representatives to Congress. Imagine that the inner circle, “the city,” is ethnically diverse and votes about 70%-30% Democrat. Imagine that the outer circle, “the suburbs,” is majority white and votes 55%-45% Republican. This demographic description probably applies to a lot of urban areas in the United States. If the entire metropolitan area voted collectively for three Representatives, almost 2/3 of its residents would vote Democrat, and a little more than 1/3 would vote Republican, so one would expect the metropolitan region to elect two Democrats and one Republican for this mega-district. One can imagine a similar scenario across an entire state with multiple large, mid-size, and small cities surrounded by sparsely populated rural areas. Statewide voting would not be perfectly representative because the total number of a state’s legislative seats might not be perfectly divisible along party lines. In the hypothetical metropolis, Republicans would be slightly “under-represented” as a function of total voting population and vice versa for Democrats, but it would be a much closer rep-to-vote ratio than one currently sees in Congress.[9]

Federal law, however, requires that Representatives be elected in single-member districts, rather than in statewide, multi-member districts,[10] which is the traditional method in many other countries and currently used to draw a few states’ legislative districts. So, this metropolitan area (or a whole state) cannot come together and elect Representatives in a way that is roughly proportionate to the party affiliation of its total population. Instead, the area has to be divided in three.  If one divided it like a pizza, with three rectangular districts coming to a point in downtown, it would elect three Democrats, assuming that the suburbs at the three corners of the metropolitan area and the neighborhoods within the city limits were roughly similar to one another across partisan lines (i.e., that the Northeast suburbs and the Southwest suburbs have roughly equal portions of Democrats and Republicans and the same for the East End of downtown and the West End of downtown). This is probably not a completely valid assumption (e.g., the North and South sides of L.A. or Chicago are quite demographically different from one another). But the variation between “city” and “suburb” is still likely greater than the variation among city neighborhoods or individual suburbs, such that one would still expect each of the three pie-piece-shaped districts to vote approximately 2/3 Democrat and 1/3 Republican. This would result in three Democratic Representatives, diluting the Republican suburban votes so that those voters would have no say in their representation in Congress (and presumably no Representative responsive to their concerns).

Now imagine the opposite. Imagine drawing the three metropolitan districts with one district in the inner city and two districts (each shaped like half a donut) of suburbs and outer city neighborhoods. Now, one would expect to have one Democratic Representative for “downtown” and two Republicans for the outer-city and suburban areas, diluting Democratic votes in the area by “packing” them into one downtown district and “cracking” them into two minority groups in the outer districts. The latter is how many Republican-controlled state legislatures draw their federal districts, and it is how a party that often has a minority of overall votes nonetheless has established an enduring majority in the “popular” house of Congress. While the country is essentially “tied” Democrat/Republican, Congress is not, because strategic Republican redistricting at the state level has silenced much of the half of the country that disagrees with it. This practice is so widespread that academics have named it. They call it “partisan symmetry”[11] or the “efficiency gap” – the gap between the total number of votes and the smaller number of votes that actually “count” one way or another.[12]

When one looks at “representative” government on a state-by-state basis, the math is alarming. There are large swaths of the country where Republicans barely outnumber Democrats (or even are in the minority statewide), but have much larger majorities in their state legislatures and, therefore, Congressional delegations.

According to Gallup, Oklahoma is 49% Republican and 36% Democrat,[13] yet its entire Congressional delegation (two Senators and five representatives) is Republican.[14] Delaware County, which contains the Oklahoma half of Kansas City, is majority Democrat, but it only has 450,000 people, so it is not big enough for its own district. Osage County, which contains Tulsa, is also majority Democrat, but Tulsa is even smaller, with a population of approximately 400,000. Tulsa and Kansas City are both in the Northeast of the State. It would be possible to combine them and their surrounding areas to form two majority-Democrat districts.  Instead, the Oklahoma legislature combined Kansas City with a huge swath of Eastern Oklahoma, which added just enough population to make the entire district (Oklahoma’s Second) majority Republican, and it created a stovepipe-looking swath of territory up to the Kansas border that dilutes the votes of Tulsa residents creating a second majority Republican district (Oklahoma’s First). The Oklahoma legislature, despite being in a fairly closely divided state, comprises 110 Republicans and 39 Democrats.[15]

Arkansas is more closely divided, with 45% Republicans and 39% Democrats,[16] but its Congressional delegation is also entirely Republican (two Senators and four representatives).[17] Arkansas’s largest city is Little Rock, and it votes predictably Democratic. But, with approximately 250,000 in its metro area, it is much too small to have its own Representative. Pine Bluff, Arkansas, immediately Southeast of Little Rock, has another 50,000 solidly Democratic voters. Head further Southeast, along the Mississippi river, and you hit another solidly Democratic part of the State where most of Arkansas’s black residents reside. Each of these areas is in the Southeastern quartile of the state, but the Arkansas legislature has managed to crack them into three different majority-Republican districts (Arkansas’s First, Second, and Fourth, respectively). The Arkansas legislature has 66 Republicans and 33 Democrats.[18]

West Virginia is also fairly evenly divided, with 46% Republicans and 40% Democrats.[19] Its Senate delegation reflects this divide, with one Democratic and one Republican Senator, but its House delegation of three is 100% Republican.[20] The counties that contain the state’s three largest cities, by population, are Kanawha (Charleston), Cabell (Huntington), and Monangalia (Morgantown).[21] All three counties vote heavily Democratic.[22] Morgantown is in far Northwest Virginia, bordering Maryland, but Charleston and Huntington are both in Southwest West Virginia, not very far apart. The state’s legislative districts do not appear gerrymandered (in shape), since they cut in horizontal lines across the state, but these lines neatly cleave the three Democratic-leaning metropolitan areas into three separate districts, whose votes get diluted by the Republican-leaning rural counties around them. The West Virginia legislature is 2/3 Republican.[23]

Even Alabama, one of the reddest states, has a surprising share of Democratic voters in comparison to its almost 90% Republican Congressional delegation.  According to Gallup, Alabama is 51% Republican and 34% Democratic,[24] but it has six Republican Representatives and only one Democrat.[25] One big reason is Alabama’s Second District, with its barely attached hammerhead top and beak-shaped Western appendage. The Western beak manages to sweep up just enough conservative, white voters to dilute the remaining majority-minority district around the hammerhead of Montgomery and the heavily black Southeastern part of the state, leaving a just barely Republican-leaning district. The only majority Democratic district in the state is the packed Seventh District, in the Western “black belt,” with a finger that reaches far Northwest to nab Alabama’s liberal bastion, college-town Tuscaloosa, and downtown Birmingham for good measure. The Alabama legislature is more than 70% Republican.[26]

One sees similar numbers and districting patterns across many states: South Carolina (population 35% Democratic but only one Democratic Representative out of seven, with a state legislature in which Republicans hold 65% of its seats), Louisiana (41% Democratic versus 43% Republican, but only one Democratic Representative out of six, thanks in part to the notoriously packed district that includes both New Orleans and Baton Rouge drawn by its state legislature, in which Republicans hold 57% of the seats), Iowa (40% Democratic versus 43% Republican, but only one Democratic Representative out of four, with a state legislature that is 57% Republican), Mississippi (39% Democratic versus 44% Republican, but only one Democratic Representative out of four, with a state legislature that is 60% Republican), Missouri (38% Democratic versus 46% Republican, with a Senate delegation of one Democrat and one Republican, but only two Democratic Representatives out of a delegation of eight, with a state legislature that is 71% Republican), Indiana (38% Democrat versus 44% Republican with a Senate delegation of one Democrat and one Republican but only two Democratic Representatives out of nine, with a state legislature that is 70% Republican), Tennessee (36% Democratic versus 46% Republican, but only two Democratic Representatives out of nine, with a state legislature that is 75% Republican), and Georgia (39% Democratic versus 44% Republican, but only four of its fourteen Representatives are Democrats, with a state legislature that is 65% Republican).[27]

Even more incredible are states that do not have a Republican majority, but whose Congressional delegations are nonetheless quite scarlet. One of the most egregiously districted states is North Carolina, which most commentators no longer consider a “red” state.[28] Voters are equally divided between Democrats and Republicans (41% each),[29] but North Carolina’s House delegation has ten Republicans and three Democrats.[30] Once again, this is the product of districting by a state legislature 62% of whose seats are occupied by Republicans.[31] The North Carolina legislature – the one that just famously retaliated against its voters for electing a Democratic governor by stripping the post of its power[32] – has managed to pack most black and liberal-white voters into two huge Democratic districts: the Fourth, which captures the “research triangle” of Chapel Hill, Raleigh, and Durham, and the Twelfth, which captures a huge swath of urban Democratic voters in a long squiggly line that packs Charlotte and Greensboro into a single district.

Virginia, with 41% Democrats and 42% Republicans by population,[33] is similarly no longer considered a “red” state.[34] But its House delegation comprises eight Republicans and three Democrats, because its state legislature remains 66% Republican.[35] Ohio, another perennial battleground state, has 42% Democrats and 42% Republicans by population,[36] with an equally divided Senate delegation of one each, but, of its sixteen House seats, only four are occupied by Democrats.[37] This is the result of yet another act of district engineering by its state legislature, which is 65% Republican.[38] Toledo and Cleveland are 120 miles apart, in nearly opposite corners of Ohio with little but lakefront in common. But they are together at the voting booth every two years. Wisconsin, another battleground state, evenly divided between Democrats and Republicans (43% each),[39] has one Democratic and one Republican Senator, but three of its eight Representatives are Democrats, thanks to its state legislature, which is 64% Republican.[40] Michigan is considered a “blue” state.[41] Statewide, it has 43% Democrats and 39% Republicans,[42] but only five of its fourteen Representatives are Democrats, and Republicans hold a majority (56%) in its state legislature.[43]

Perhaps no place exemplifies the power of, and battles over, redistricting like Texas, which, because of its size, also demonstrates the rigged mathematics of partisan politics in the United States. While many think of Texas as very red, it merely seems that way because of the outsize power that Republicans enjoy.  According to Gallup, Texans are 37% Democrat and 43% Republican.[44] Because of its size, Texas has a House delegation of thirty-six Representatives, only eleven of whom (31%) are Democrats.[45] Its state legislature is 66% Republican.[46] Because Texas has a history of discriminatory voting access, it used to require Department of Justice (“DOJ”) “preclearance” for its districting plans.[47] In 2011, the Texas Legislative Council submitted its 2010 plan to DoJ, which refused to approve it because it discriminated against voters of color (who tend to vote heavily Democratic).[48] In 2012, a federal court upheld DoJ’s decision, so Texas appealed to the Supreme Court.[49] Shortly thereafter, in Shelby County. v. Holder,[50] the Court struck down the preclearance formula.[51] So, the heavily Republican legislature (in a not nearly as heavily Republican state) is now free to redistrict without federal interference.

Individually, these numbers may not seem like much, one extra Republican Representative here or there in states that many already consider inevitably “red,” but together they add up to an unassailable minority majority in Congress. To put it in mathematical terms, the Republican party is exploiting our now ironically named republican system of indirect representation to “round up” its share of elected office, in comparison to its statewide shares of voters, by 10 or 20% across a majority of states. If Texans, for example, voted for their Representatives statewide, one would expect roughly 46% to be Democrats and 54% to be Republicans.  That would mean six more seats for Democrats and fewer seats for Republicans from Texas alone. Nationwide, it would mean that the House would pretty much be perpetually evenly divided between Democrats and Republicans (like the country), occasionally swinging in one direction or other by two or three seats, rather than being permanently dominated by Republicans. The result would be that both parties would have to compromise to govern, rather than a majority party always riding roughshod over a futile opposition.

Then there is the presidency. Most Americans are by now quite familiar with the anti-democratic math for this branch. Americans do not elect the President; they elect Electors who elect the President.[52] Electors are not assigned by population. A state gets the same number of electors as its total Congressional delegation (Senate and House), so the anti-democratic nature of Senate representation gets replicated, giving extra weight to states with less population.[53] More importantly, in almost all states, the electoral delegates are winner take all, not proportional.[54] So, if one candidate wins twenty-four states in a landslide, and the other candidate barely wins twenty-six, so that the first candidate wins 60% of the popular vote but 48% of the electors and the second candidate wins 40% of the popular vote but 52% of the electors, the second candidate becomes the President.

As a result, last November, for the second time in less than two decades, the person for whom the majority of Americans voted did not take office on Inauguration Day.[55] The math for 2016 is particularly stark. While Al Gore barely squeaked a victory in the popular vote in 2000 (earning a little more than 500,000 more votes than George W. Bush),[56] Hillary Clinton both won the popular vote and lost the Electoral College by margins which could be considered landslides: garnering almost 3,000,000 more votes than Donald Trump (or almost three percent of votes cast) while losing the Electoral College by almost seven percent.[57]

The math clearly demonstrates that the United States has no “democratic” branches of government. According to Gallup, 32% of Americans currently identify as Democrats while 27% identify as Republicans.[58] Nonetheless, the Republicans soundly control both houses of Congress and the Presidency. In sum, our nation is pretty much evenly divided between Democrats and Republicans, tending to bank, if anything, a bit more Democratic each passing year, but the “democratic” branches do not reflect that reality.[59]

These discrepancies have significant effects on policy, with a majority of Americans wanting Congress to prioritize policies and actions that it does not and refrain from taking many of the actions that it does. For example, according to Gallup, only 19% of Americans want abortion to be illegal under all circumstances, with 29% wanting abortion to be available under all circumstances and 50% wanting it to be legal under some.[60] 55% want stricter gun laws. 51% believe that the federal government has a responsibility to guarantee health care for all, and 58% favor replacing Obamacare with a federally funded health-care system (definitely not the idea behind Republicans’ “repeal and replace” mantra).[61] 59% support free universal preschool and childcare, and 47% support free college tuition (versus 45% opposed).[62] A whopping 63% think that corporations have too much influence in Washington, and a majority of those with an opinion support campaign-finance reform, with 88% in favor of heightened disclosure requirements, 78% in favor of lowering the maximum allowed donation, and 58% in favor of public finance.[63]

How can this America be the one that elected Donald Trump and put Mitch McConnell and Paul Ryan in charge of Congress? Why do Americans continually elect a Congress with an approval rating below twenty percent?[64] Why do a majority of Americans look at their new President and say, “He’s not my President.”?[65] Many attribute these discrepancies to campaign finance and the power of special-interest organizations. Surely these lobbies play a role, but mostly these discrepancies exist because they have no consequence. Because a majority of legislators are elected by a minority of the electorate, it does not have to govern with accountability to the wishes of its constituents, but rather only to those few constituents whose votes have outsized weight, which tends to be rural, conservative, white America (the national “suburbs”). So, if you are one of the majority of Americans that Gallup says feels like Congress is “out of touch,”[66] if you are progressive, urban, coastal, multi-lingual, or brown and you feel like your “representatives” do not represent your community or your country, it is because they do not.

Can anything be done? Certainly: amend the Constitution. We could amend Article I, § 3, which dictates that each state gets two Senators, so that Senators are elected in proportion to population.[67] We could amend Article I, § 4, which dictates that Congressional elections are governed by state law,[68] and then demand that Congress repeal § 2C and require statewide elections. We could repeal Article II, § 1, which establishes the Electoral College,[69] and replace it with a provision requiring direct popular election of the President. We could even change the Twenty-Third Amendment, which conferred only the right to vote for President on (super-majority-Democratic) D.C.,[70] and add Congressional representation. But this is where math, once again, gets in the way of democracy. Under Article V, the Constitution can only be amended by a vote of 2/3 of Congress or 2/3 of state legislatures,[71] both of which are controlled by Republicans, the minority party that governs like a majority.

[*] Associate Professor & Dean’s Distinguished Faculty Fellow, University of Oregon School of Law

[1] See generally Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

[2] See Charles Warren, The Supreme Court In United States History 748–49 (Rev. ed. 1935).

[3] See Charles Warren, The Making of the Constitution 267–312 (1928).

[4] See U.S. Const. art. I, § 3.

[5] See U.S. Const. art. I, § 2.

[6] See Paul Singer, Democrats Won Popular Vote in the Senate, Too, USA Today (Nov. 10, 2016, 6:17 PM), http://www.usatoday.com/story/news/politics/onpolitics/2016/11/10/democrats-won-popular-vote-senate-too/93598998/ [https://perma.cc/E7BT-8XBP].

[7] See Patrick Scott, Who Won the US Senate and House of Representatives? Did the Democrats or Republicans Win?, Telegraph (Nov. 10, 2016, 10:51 AM), http://www.telegraph.co.uk/news/2016/11/02/us-senate-and-house-of-representatives-the-most-likely-outcomes/ [https://perma.cc/X8CY-BJFW].

[8] See Ezra Klein, House Democrats Got More Votes than House Republicans. Yet Boehner Says He’s Got a Mandate?, Wash. Post: Wonkblog (Nov. 9, 2012), https://www.washingtonpost.com/news/wonk/wp/2012/11/09/house-democrats-got-more-votes-than-house-republicans-yet-boehner-says-hes-got-a-mandate/?utm_term=.7ce4f65a1ac0 [https://perma.cc/F5HV-F6YF].

[9] See Partisan Composition of State Houses, Ballotpedia, https://ballotpedia.org/Partisan_composition_of_state_houses [https://perma.cc/D482-6BW9]. For an in-depth explanation of why state legislatures are hyper-Republican, see Philip Bump, How Your State’s Politics Have Shifted over the Years, in 49 Charts, Wash. Post: The Fix (Sept. 13, 2015), https://www.washingtonpost.com/news/the-fix/wp/2015/09/11/49-charts-that-tell-the-partisan-history-of-state-legislatures/?utm_term=.1c7b9eff1de5 [https://perma.cc/3VJT-Y7HR].

[10] See 2 U.S.C. § 2C (2012).

[11] See Anthony J. McGann, et al., Gerrymandering in America 8–9 (2016).

[12] See Kim Soffen, Wisconsin’s Gerrymander Being Struck Down Should Scare Republicans Nationwide, Wash. Post (Nov. 23, 2016), https://www.washingtonpost.com/news/wonk/wp/2016/11/23/wisconsins-gerrymander-being-struck-down-should-scare-republicans-nationwide/?utm_term=.1e22d8d42712 [https://perma.cc/RC9M-CXLT].

[13] See Jeffrey M. Jones, Red States Outnumber Blue for First Time in Gallup Tracking, Gallup (Feb. 3, 2016), http://www.gallup.com/poll/188969/red-states-outnumber-blue-first-time-gallup-tracking.aspx [https://perma.cc/P4TH-U9GT].

[14] See State & Legislative Partisan Composition (2016 Election), Nat’l Conf. of State Legislatures (Dec. 15, 2016), http://www.ncsl.org/portals/1/documents/elections/Legis_Control_2016_Post12_28_2pm.pdf [https://perma.cc/Y6XL-7WBC] [hereinafter NCSL Composition].

[15] See id.

[16] See Jones, supra, note 13.

[17] See NCSL Composition, supra note 14.

[18] See id.

[19] See Jones, supra note 13.

[20] See NCSL Composition, supra note 14.

[21] See Charleston Only West Virginia City with 50,000 Population, Charleston Gazette-Mail (May 21, 2015), http://www.wvgazettemail.com/article/20150521/article/150529842 [https://perma.cc/Q3RF-4C7C].

[22] See Voter Registration, W. Va. Sec’y of State (Feb. 20, 2017), http://www.sos.wv.gov/elections/voterRegistration/Pages/Voter_Registration.aspx [https://perma.cc/WF5F-RE4T].

[23] See id.

[24] See Jones, supra note 13.

[25] See NCSL Composition, supra note 14.

[26] See id.

[27] See Jones, supra note 13; NCSL Composition, supra note 14.

[28] See, e.g., Gary Legum, North Carolina’s in Play: The Red State Just Might Be up for Grabs in November, Salon (July 1, 2016, 10:00 AM), http://www.salon.com/2016/07/01/north_carolinas_in_play_the_red_state_just_might_be_up_for_grabs_in_november/ [https://perma.cc/LXF5-GKUH].

[29] See Jones, supra note 13.

[30] See NCSL Composition, supra note 14.

[31] See id.

[32] See Trip Gabriel, North Carolina G.O.P. Moves to Curb Power of New Governor, N.Y. Times, Dec. 15, 2016, at A14.

[33] See Jones, supra note 13.

[34] See Jenna Portnoy, How Did Deeply Red Virginia Become Such a Challenge for the GOP in a Single Decade?, Wash. Post (Aug. 13, 2016), https://www.washingtonpost.com/local/virginia-politics/how-did-deeply-red-virginia-become-such-a-challenge-for-the-gop-in-a-single-decade/2016/08/13/36b2014e-5f21-11e6-9d2f-b1a3564181a1_story.html?utm_term=.497715b7aab1 [https://perma.cc/XY89-P8EA].

[35] See NCSL Composition, supra note 14.

[36] See Jones, supra note 13.

[37] See NCSL Composition, supra note 14.

[38] See id.

[39] See Jones, supra note 13.

[40] See NCSL Composition, supra note 14. A federal court recently struck down Wisconsin’s state districting plan after finding that the Republican-controlled legislature had intentionally manipulated districts to favor Republicans. See Soffen, supra note 12.

[41] See Emily Lawler, Following Republican Sweep, Michigan’s Status as a Blue State Teeters, Mich. Live (Nov. 10, 2016, 11:30 AM), http://www.mlive.com/news/index.ssf/2016/11/following_republican_sweep_mic.html [https://perma.cc/44H2-V32U].

[42] See Jones, supra note 13.

[43] See NCSL Composition, supra note 14.

[44] See Jones, supra note 13.

[45] See NCSL Composition, supra note 14.

[46] See id.

[47] See Voting Rights Act, 42 U.S.C.A. §§ 1973–1973q (2006); 28 C.F.R. Pt. 51, App. (2011) (listing jurisdictions required to get preclearance under the Act).

[48] See 2010s Cycle, Texas Senate Redistricting, Tex. Legis. Council, http://www.tlc.state.tx.us/redist/history/2010s.html [https://perma.cc/7WW4-3DVD] (last updated Jan. 9, 2015).

[49] See Texas v. United States., 887 F. Supp. 2d 133, 161–62 (D.D.C. 2012), rev’d Texas v. United States, 133 S.Ct. 2885 (2013) (mem.).

[50] Shelby Cty. v. Holder, 133 S.Ct. 2612, 2631 (2013).

[51] See id. at 2623–24.

[52] See U.S. Const. art. II, § 1.

[53] See id.

[54] See Nate Cohn, How to Explain Split Between Popular Vote and Electoral College, N.Y. Times, Dec. 20, 2016, at A17.

[55] See Michele Gorman, Extraordinary Moments in Electoral College History, Newsweek (Dec. 19, 2016, 7:10 PM), http://europe.newsweek.com/moments-electoral-college-history-533766?rm=eu [https://perma.cc/G9BH-NDHB].

[56] See Kenneth P. Doyle, Clinton Won Popular Vote by More Than 2.8 Million: FEC, Bloomberg BNA (Feb. 14, 2017), https://www.bna.com/clinton-won-popular-n57982083769/ [https://perma.cc/J7RS-5E67].

[57] See Gregory Krieg, It’s Official: Clinton Swamps Trump in Popular Vote, CNN (Dec. 22, 2016, 5:34 PM), http://edition.cnn.com/2016/12/21/politics/donald-trump-hillary-clinton-popular-vote-final-count/ [https://perma.cc/2QRS-36YV].

[58] See Jones, supra note 13.

[59] See Lydia Saad, Americans’ Attitudes Toward Abortion Unchanged, Gallup (May 25, 2016), http://www.gallup.com/poll/191834/americans-attitudes-toward-abortion-unchanged.aspx [https://perma.cc/Y49H-CJAQ].

[60] See Guns, Gallup (Dec. 23, 2016), http://www.gallup.com/poll/1645/guns.aspx [https://perma.cc/NR84-23Z9].

[61] See Healthcare System, Gallup (Dec. 23, 2016), http://www.gallup.com/poll/4708/healthcare-system.aspx [https://perma.cc/C9DL-KL9C].

[62] See Lydia Saad, Americans Buy Free Pre-K; Split on Tuition-Free College, Gallup (May 2, 2016), http://www.gallup.com/poll/191255/americans-buy-free-pre-split-tuition-free-college.aspx [https://perma.cc/HUG5-9DXS].

[63] See David W. Moore, Widespread Public Support for Campaign Finance Reform, Gallup (Mar. 20, 2001), http://www.gallup.com/poll/1885/widespread-public-support-campaign-finance-reform.aspx [https://perma.cc/5F89-8CHB]; Lydia Saad, Half in U.S. Support Publicly Funded Financed Campaigns, Gallup (June 24, 2013), http://www.gallup.com/poll/163208/half-support-publicly-financed-federal-campaigns.aspx?g_source=campaign%20finance&g_medium=search&g_campaign=tiles [https://perma.cc/7352-EHR6] .

[64] See Congress and the Public, Gallup (Dec. 23, 2016), http://www.gallup.com/poll/1600/congress-public.aspx [https://perma.cc/3UYW-Q82Y].

[65] See Sonam Sheth, Trump’s Approval Rating is the Lowest of Any Incoming President in Nearly 25 Years, Bus. Insider (Dec. 21, 2016, 1:33 PM), http://www.businessinsider.com/trumps-approval-rating-lowest-of-last-3-incoming-presidents-2016-12 [https://perma.cc/HC6E-DEKZ].

[66] See Andrew Dugan, Majority of Americans See Congress as Out of Touch, Corrupt, Gallup (Sept. 28, 2015), http://www.gallup.com/poll/185918/majority-americans-congress-touch-corrupt.aspx [https://perma.cc/S8N2-6Q6S].

[67] See U.S. Const. art. I, § 3.

[68] See U.S. Const. art. I, § 4.

[69] See U.S. Const. art. II, § 1.

[70] See U.S. Const. amend. XXIII.

[71] See U.S. Const. art. V. In addition, any amendment to Senate apportionment must comply with the Article V requirement that “no state, without its consent, shall be deprived of its equal suffrage in the Senate.” Id.