Defending the Electoral College since 2009
I wrote the other day about the irresponsible and wildly inaccurate claims made by a National Popular Vote interstate compact (NPV) lobbyist regarding the effect of illegal immigration on the Electoral College. According to a recent interview given by NPV’s Saul Anuzis, “Democrats will have anywhere from a 22 to 26 Electoral College vote advantage because so many more illegal immigrants live in safe Democratic states.”
As that earlier post explained, the claim is nonsense, apparently based on a serious misunderstanding of a 2019 report by the Center for Immigration Studies. The report actually showed that illegal immigration would provide Democrats with an advantage of a single electoral vote following the 2020 Census, while more recent data finds Democrats may enjoy a two-electoral vote advantage – a far cry from the 22-26 claimed by Anuzis.
The purpose of the wildly inflated numbers, it seems likely, is to take advantage of many Republicans legitimate concerns about illegal immigration while also appealing to their partisan interest – the only way to deal with illegal immigration affecting the presidential election and giving Democrats a significant advantage, Republicans are told, is to abandon the Electoral College and embrace NPV.
Even with the much smaller numbers than claimed by Anuzis this may seem like an attractive argument for some Republicans. But it ought to be weighed against the very real likelihood that under NPV noncitizens (both those in the country legally and illegally) will be allowed to vote in some states.
NPV’s lobbyists have emphatically argued for a decade and a half that states have “exclusive” and “plenary” power in the process they choose for appointing presidential electors. According to this argument, aside from a few explicit prohibitions contained elsewhere in the Constitution (such as the Nineteenth Amendment’s guarantee of the right to vote for women), states have completely unfettered power to determine how they decide to appoint presidential electors.
There are lots of reasons to believe this isn’t true. The power is certainly broad but there are numerous arguments for why it isn’t quite as broad as claimed, including this excellent paper from a Harvard symposium from 2021, “The Framers Inadvertent Gift – The Electoral College and the Constitutional Infirmities of the National Popular Vote Compact.” But let’s suppose for a moment it is true, and so aside from doing something explicitly barred by the Constitution (for example, prohibiting people under age 21 from voting for presidential electors, in violation of the Twenty Sixth Amendment), states have unlimited authority in this area.
What, then, would prohibit states like California, Illinois, and New York from allowing the adults among their combined seven and a half million noncitizen residents (again, either in the country legally or illegally) to vote?
I suppose NPV’s proponents – at least those tasked with persuading Republicans to support the compact – might point to 18 U.S. Code § 611 - Voting by aliens, which ostensibly bars noncitizens from voting in federal elections including for “…a candidate for the office of President, Vice President, Presidential elector…” But it seems pretty unlikely that this would hold up if in court if the “exclusive” and “plenary” power is truly as broad as NPV’s proponents claim – how could a simple federal statute override what is supposedly an unlimited grant power to state legislatures?
In fact, 18 U.S. Code § 611 may not even hold up regardless of whether NPV’s theory of “exclusive” and “plenary” power is correct. The Supreme Court has generally held that states have the authority to define their own electorates. That’s why many states allowed women to vote even before the Nineteenth Amendment passed – well over 100 years before in the case of New Jersey – and Georgia likewise gave the right to vote to everyone eighteen or older in 1943, decades before the Twenty Sixth Amendment. And many states from the founding through the Nineteenth Century did in fact give noncitizens the right to vote, with Arkansas being the last to end noncitizen voting in 1926.
More recently, in a case related to Arizona’s ban on noncitizen voting, the U.S. Supreme Court upheld the position that “…the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them” and cited the dissent in a 1970 ruling to the contrary (the Court had ruled Congress had the power to require states lower the voting age to 18 for federal elections, but not state and local elections): “It is difficult to see how words could be clearer in stating what Congress can control and what it cannot control. Surely nothing in these provisions lends itself to the view that voting qualifications in federal elections are to be set by Congress.”
Obviously there’s a role for Congress in enforcing things like the 15th Amendment, but other than that it’s quite likely the U.S. Supreme Court would strike down a federal law telling the states they couldn’t allow noncitizens to vote, especially given that in the past it has recognized the power of states to include them in the electorate. As the Supreme Court explained in its 1904 decision Pope v. Williams:
“…the privilege to vote in a state is within the jurisdiction of the state itself, to be exercised as the state may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals, in violation of the federal Constitution. The state might provide that persons of foreign birth could vote without being naturalized, and, as stated by Mr. Chief Justice Waite in Miner v. Happersett, supra, such persons were allowed to vote in several of the states…”
It's also worth noting that noncitizen voting isn’t some theoretical possibility. New York City recently allowed noncitizens to vote in local elections, and more cities and states may follow. It doesn’t seem too farfetched to see a state like California deciding it’s in its interest to add one or two million votes to the national count by giving noncitizens the right to vote.
To sum up:
- If states truly are completely unfettered in their authority to determine how presidential electors are appointed, as claimed by National Poplar Vote’s proponents, then surely they can allow noncitizens to vote for president.
- The current federal law prohibiting voting by noncitizens is likely unconstitutional, as the U.S. Supreme Court has generally held that states have the power to define their own electorates without Congressional interference, so long as it doesn’t violate Constitutional protections such as those in the Fifteenth, Nineteenth, and Twenty Sixth Amendments.
- There is a long history of noncitizens being given the right to vote in local, state, and federal elections, and there are active efforts today to expand noncitizen voting.
With all of this in mind, anyone concerned about the impact of noncitizens on the presidential election process is far better off sticking with the current Electoral College rather embracing a National Popular Vote scheme that will almost certainly increase that impact.
Time is running out
There is a real, immediate threat to the constitutional way we elect our president. National Popular Vote is 76% of the way to implementing their dangerous plan.