17. Myths about the 14th Amendment
17.1 MYTH: The Privileges and Immunities Clause of the 14th Amendment precludes the National Popular Vote compact.
The Privileges and Immunities Clause of the 14th Amendment (ratified in 1867) states:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
The Privileges and Immunities Clause gives each citizen the same protection against abridgments by state governments as each citizen already possessed relative to abridgments by the federal government.
The National Popular Vote bill does not abridge any existing constitutional privilege or immunity. In particular, the people have no federal right to vote for President.97 The people acquired the vote for President as a result of the enactment by state legislatures of state laws, on a state-by-state basis. In the nation's first presidential election in 1789, only five states permitted the people a vote for presidential electors. Indeed, at the time when the 14th Amendment was ratified (1867), state legislatures still occasionally appointed presidential electors themselves, without a vote by the people (e.g., in 1860, 1868, and then for the last time in 1876). As the U.S. Supreme Court stated in the 1893 case of McPherson v. Blacker:
"The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket [i.e., what is now called the 'winner-take-all' rule], nor that the majority of those who exercise the elective franchise can alone choose the electors."98
17.2 MYTH: Section 2 of the 14th Amendment precludes the National Popular Vote compact.
Section 2 of the 14th Amendment says:
"Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. [Emphasis added]
Section 2 of the 14th Amendment provides a remedy in the form of reduced congressional representation if any person's right to vote is denied or abridged by any state.
The National Popular Vote bill does not deny or abridge any person's right to vote for any other office. Section 2 manifestly does not preclude a national popular vote for President.
Note also that section 2 does not give the voters the right to vote for President. At the time when the 14th Amendment was ratified (1867), state legislatures were still appointing presidential electors themselves, without a vote by the people (e.g., in 1860 in South Carolina, 1868 in Florida, and 1876 in Colorado). The congressional act providing for Colorado's statehood in 1876 specifically mentioned that the Colorado legislature could appoint the state's presidential electors for the 1876 election. Thus, there were examples of state legislatures appointing presidential electors before, during, and after the time when the 14th Amendment was debated and ratified. As the U.S. Supreme Court stated in the 1893 case of McPherson v. Blacker:
"The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket [i.e., what is now called the 'winner-take-all' rule], nor that the majority of those who exercise the elective franchise can alone choose the electors."99
17.3 MYTH: The Due Process Clause of the 14th Amendment precludes the National Popular Vote compact.
The Due Process Clause of the 14th Amendment says:
"… nor shall any State deprive any person of life, liberty, or property, without due process of law …"
The National Popular Vote bill does not deny any person of life, liberty, or property. Voting for President is not a "liberty" granted by the U.S. Constitution, and it certainly is not "life" or "property."
17.4 MYTH: The Equal Protection Clause of the 14th Amendment precludes the National Popular Vote compact.
The Equal Protection Clause of the 14th Amendment says:
"no state [shall] deny to any person within its jurisdiction the equal protection of the laws" [Emphasis added]
Some have argued that it is not permissible, under the Equal Protection Clause, for some states to close their polls at 6:00 p.m. while others close at 9:00 p.m; for some states to conduct their election entirely by mail while other states conduct their (non-absentee) voting at the polls; and for some states to permit violent felons to vote while others prohibit it (absent a pardon). However, the U.S. Constitution does not require that the election laws of all 50 states be identical in virtually every respect. In particular, the Equal Protection Clause of the 14th Amendment only restricts a given state in the manner in which it treats persons "within its jurisdiction." The Equal Protection Clause imposes no obligation on a given state concerning a "person" in another state who is not "within its [the first state's] jurisdiction." State election laws are not identical now, nor is there anything in the National Popular Vote compact that would force them to become identical. Indeed, the U.S. Constitution permits diversity of election laws among the states because it explicitly gives the states control over the conduct of presidential elections (article II) as well as congressional elections (article I). The fact is that the Founding Fathers intended, and the U.S. Constitution permits, states to conduct elections in diverse ways.
The National Popular Vote bill does not violate the Equal Protection Clause of the 14th Amendment.
97 Even if there were a federal right to vote for President, the National Popular Vote bill would do nothing to abridge that right.
98 McPherson v. Blacker. 146 U.S. 1 at 27. 1892.
99 McPherson v. Blacker. 146 U.S. 1 at 27. 1892.