Here's a Question for Next Year's Bar

This past week, almost 50,000 law school graduates sat for their states’ bar exam – the test lawyers must take (and pass) to legally practice the law. Nearly all completed the same 200 multiple-choice questions, which focused on general law subjects like Contracts, Criminal Law, and Torts. But there were 25 questions on Constitutional Law as well, and I’d like to use this blog to humbly offer a question for next year’s test:

David, a citizen of State A, and Kim, a citizen of State B, believe that America needs to change the way we select the President. They seek a reform that encourages citizen engagement across the country, that unites rather than divides Americans, and that has a high likelihood of success. Which policy reform should David and Kim support?

(a)  An Executive Order to require that States appoint their Presidential electors in a fairer and more equitable way.

(b)  An amendment to change the language in Article II, Section 1 of the U.S. Constitution.

(c)   Nationwide use of the Congressional District Method

(d)  State action to elect the President by national popular vote.

Let’s think through these options together.

Option (a) is definitely the wrong choice (the bar doesn’t have to be too hard). It’s wrong because the President doesn’t have this power. Executive Order’s are binding on officials and agencies in the Executive Branch, but the States have what the Supreme Court has called “plenary authority” to determine how to appoint their Presidential electors. So we can cross this one off for David and Kim.

Maybe then a Constitutional amendment, the second choice. An amendment can change the language in Article II, Section 1 from allowing States to choose how to appoint Presidential electors to requiring that, for example, the national popular vote winner becomes President. This is about as clean and straightforward a way of achieving David and Kim’s goals as they could find.

The problem, though, is that it is hard to ratify the Constitution. The amendment first needs to be proposed, and only afterwards can it be ratified (i.e., become Constitutional law). There are two ways to propose Constitutional amendments:

·      Get 2/3 of both the U.S. Senate and House to propose the Amendment, which in this climate is no easy task.

·      Get a Constitutional convention called by 2/3 of the State legislatures, but practical problems arise here, too.

But even if David and Kim achieve these threshold goals, the work isn’t over: a proposed amendment only ratifies the Constitution after 3/4 of the States (38 total) agree. That’s only happened six times since 1950. The Founders made it hard to ratify the Constitution, and these challenges are only amplified today, with a country more diverse and dispersed than ever before. So option (b) may not be right for our intrepid advocates either, at least right now.

So maybe option (c). The Congressional District Method treats Electoral Votes like votes for members of Congress. Each Congressional District gets one vote (like in the House), and two votes are given to the statewide winner (like in the Senate). And we know that States are willing to use this method: two States (Maine and Nebraska) already do, and several States across the East Coast have proposed making this change.

However, just because this can become law does not mean it should. That’s because the Congressional District Method fails to motivate engagement, fails to treat Americans equally, and fails to ensure that every vote counts in the Presidential election. Instead, it copies and pastes the serious problems we have with Congressional gerrymandering into the election for President. State legislatures will draw the maps for their own benefit, not to protect democracy or promote the people’s voices. Gerrymandering Congress has been strongly opposed across the United States, so we should not now let the legislatures gerrymander the Presidency.

But the States – and the legislatures – should play an important role. States have passed legislation to change their appointment methods dozens of times through U.S. history, and nothing in the Constitution requires the winner-take-all method that nearly every state uses today (please, take a look!). Rather, with their SCOTUS-approved plenary power, legislatures could pass laws to require the State appoint the Presidential electors slate for the national popular vote winner. A state could do this on its own, or as part of an interstate compact.

Either method is easier to achieve than a Constitutional amendment. Both encourage local engagement to persuade State legislatures to pass the law. And as more States pass such laws, a groundswell of enthusiasm may motivate additional action – additional States passing the legislation, and Presidential candidates campaigning across the country (rather than just in battleground states). The solution, really, makes a lot of sense: When the law treats all Americans equally, politics will too, and we will move a little closer towards a country that embodies what our principles represent.

Seems the easy choice to me.

Jacob Canter