JURIST Managing Editor Dwyer Arce, University of Pittsburgh School of Law Class of 2012, is the 2011 Janavitz Fellow in First Amendment Law and serves as a Teaching Fellow in the Marshall-Brennan Constitutional Literacy Project. He argues that an interstate compact altering presidential elections missed a unique opportunity to partially remedy the denial of federal voting rights to the four million US citizens living in the territories… (His opinions are not intended to represent those of JURIST)

In August, California became one of a handful of states to adopt an interstate compact that would make the nationwide popular vote controlling in presidential elections. Article II of the US Constitution provides that the President and Vice President are elected by the Electoral College, a body of electors apportioned to each state according to the size of its congressional delegation. This has resulted in the current total of 538 Electoral College votes, representing 100 senators, 435 representatives, plus three more awarded from the District of Columbia, as provided by the Twenty-Third Amendment. The Constitution provides that these electors shall be appointed by a state’s legislature, which has discretion in determining which presidential candidate will receive the state’s votes. Despite this grant of power, the states have uniformly provided that their Electoral College slate be awarded to the winner of the popular vote in that state.

The National Popular Vote Interstate Compact would change the nature of the election by pledging a member-state’s Electoral College votes to the winner of the nationwide popular vote, regardless of which candidate wins in the statewide vote. In calculating the national popular vote, the compact requires that states take into account the popular vote in each of the 50 states and the District of Columbia, as certified and reported by state election officials. A trigger provision prevents the compact from coming into force until enough states adopt it to comprise a majority of the Electoral College, 270 votes. With California’s adoption of the compact, there are now 132 Electoral College votes tied to it, with over a dozen more state legislatures considering joining the compact. Once it has been adopted by enough states, the Electoral College will be effectively abolished, allowing the winner of the national popular vote to become President. This would avoid the situations occurring in 1876, 1888 and 2000, when the presidential candidate who lost the national popular vote ascended to the presidency with an Electoral College majority alone. One detrimental aspect of the Electoral College which is not remedied through this compact is the disenfranchisement of just over four million US citizens who are currently excluded from voting in federal elections: the residents of Puerto Rico, Guam, the US Virgin Islands and the Northern Mariana Islands. (The residents of a fifth territory, American Samoa, are excluded from this analysis because they are not US citizens).

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

US citizens living in Puerto Rico and Guam have sued on several occasions to gain inclusion in the presidential vote. In 1984, the US Court of Appeals for the Ninth Circuit rejected one such claim in Attorney General of the Territory of Guam v. United States, holding that plaintiffs had failed to state a claim upon which relief could be granted. This was because the

Constitution does not grant to American citizens the right to elect the President … Electors appointed by the states elect the President and Vice President. … Thus, citizens do not vote for the President. Electors, appointed by “each State,” vote for the President.

Similarly, following a long line of cases seeking federal voting rights for US citizens in Puerto Rico, the US Court of Appeals for the First Circuit ruled en banc in Igartúa-De La Rosa v. United States that

Voting for President and Vice President of the United States is governed neither by rhetoric nor intuitive values but by a provision of the Constitution. This provision does not confer the franchise on “U.S. citizens” but on “Electors” who are to be “appoint[ed]” by each “State,” in “such Manner” as the state legislature may direct, equal to the number of Senators and Representatives to whom the state is entitled.

The rulings by federal appellate courts have been uniform on this issue: US citizens living in one of these territories cannot exercise the federal franchise unless they relocate to a state or the District of Columbia, the territory in which they live becomes a state, or the Constitution is amended to allow federal voting rights in the territories. Despite the steadfast dissent of Judge Juan Torruella on the First Circuit, the findings of a few overturned district court opinions, and the writings of academic observers lamenting the colonial nature of the situation, this constitutional analysis would appear to be correct both textually and historically.

There is now one other option available for enfranchising these four million Americans: the National Popular Vote Interstate Compact. The compact could have provided for the inclusion of the votes cast for president in these four territories in the national vote count that would determine the outcome of the presidential election. Since the decision on whether or not to include these votes would still be entirely within the competence of the state legislature in awarding its Electoral College votes, the inability of territorial residents to vote for president in their own right would become irrelevant.

Unfortunately, this language was not included in the compact. Given the likely controversy that would ensue by attempting to include these territories in the vote totals — some of which was seen during the debate over the Puerto Rico Democracy Act of 2010 — a compact including this language would have faced significant hurdles.

The people of Puerto Rico, Guam, the US Virgin Islands and the Northern Mariana Islands have been Americans for generations. They are US citizens by birth, have been drafted, pay a number of federal taxes, and are subject to most federal legislation. Unlike states, the territories are not sovereign, but instead are subject to the plenary powers of a Congress they have no voting representation in and an Executive Branch they do not participate in electing. Despite the enormous impact federal action has on them, the residents of these territories are excluded from participating in one of the most fundamental exercises of American democracy. It is a shame that a unique opportunity to partially alleviate this fundamental injustice has been squandered.

Well, at least they all get their own quarters.

Dwyer Arce is the Managing Editor of JURIST. He graduated cum laude from the University of Nebraska at Omaha with a degree in Political Science and Islamic Studies. He has previously interned with the American Civil Liberties Union of Pennsylvania and with Judge Nora Barry Fischer of the US District Court for the Western District of Pennsylvania. Arce is also a member of the Puerto Rican Bar Association.

The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.

Suggested citation: Dwyer Arce, Popular Vote Compact: A Missed Opportunity for Equality, JURIST – Dateline, Dec. 15, 2011, http://jurist.org/dateline/2011/12/dwyer-arce-popular-vote.php.