While Jackson won a multiple of 99 electoral votes compared to Adams’ 84, the failure of either candidate to secure a majority sent the election to the House, as mandated by the 12th Amendment. After much bickering and the use of guidelines according to which each state had one vote, 13 state delegations voted for John Quincy Adams and seven for Jackson.
That legacy haunts contemporary presidential politics and efforts to reform the Electoral Count Act of 1887. Former President Donald Trump attempted in 2021 to orchestrate a situation where disputes over the 2020 election would send the decision to the House, where Republicans held a 26-24 state majority at the time. While the move has rightly been criticized as an election-stealing attempt, it exposes several ways in which the current US system of electing or selecting a president fails the democracy test — including, in certain cases, the undemocratic exclusion of the District. or Columbia, which means that its 700,000 residents have no say in the presidency.
DC and the 23rd Amendment
In 1961, Congress passed and the nation ratified the 23rd Amendment, which gave Washington three votes in the electoral college, ending the exclusion of citizens from presidential elections. Usually, the votes of a state’s electoral college are determined by the number of members of Congress consisting of two senators and a number of representatives based on the population of the state. For example, with 54 representatives, California has 55 votes in the electoral college. Since the district did not become a state, it instead received as many electoral college votes as — but no more than — the least populous state.
Neither the 23rd Amendment nor the 1974 District of Columbia Home Rule Act provided the city with voting representation in the House or Senate. (The district has non-voting representatives in both the House and Senate.) Although the house government has delegated significant power to the district, including an elected mayor and council, Congress still retains control of the city, as did the colonial domination, as the law states in section 601:
… the United States Congress reserves the right at any time to exercise its constitutional authority as the legislature for the District, by enacting legislation for the District on any subject … including legislation to amend the law in force in the District to change or withdraw.
Congress has used this power several times, such as when Congress ignored the DC vote to legalize marijuana or imposed widely opposed school vouchers. Congress can, in fact, extend this power, some congressional Republicans have promised. House Minority Leader Kevin McCarthy (R-Calif.), Rep. James Comer (R-Ky.), member of the House Committee on Oversight and Reform, and Rep. Andrew S. Clyde (R-Ga.) have all threatened to reduce or even end house rule if the GOP takes power in the House in 2023. Clyde claims crime and homelessness are spiraling out of control in the city and has told the Daily Caller that he is drafting legislation to repeal the house rule.
It is undemocratic enough to leave American citizens of the nation’s capital without representation in the federal legislature. That democratic exclusion would be even sharper if presidential elections were thrown to the House of Representatives.
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Some undemocratic ways the US selects presidents
First, a U.S. candidate can fail to secure the majority of the vote but still become president by winning at least 270 electoral college votes. This has happened twice in the six elections between 2000 and 2020. In 2000, George W. Bush lost the popular vote to Al Gore by about 500 votes, but won the election. In 2016, Hillary Clinton defeated Donald Trump by 3 million votes, but Trump took office.
Second, under certain circumstances, the state delegations in the House may decide on the presidency. This happens, for example, if the electoral college is equal, or if no candidate obtains a majority in the electoral college. It can also happen for corrupt or devious reasons, such as when Trump tried to get Republican state congressional delegations to vote against certifying the electoral lists of several states.
If presidential elections were to go to the House, citizens living in DC or US territories would have no say. Despite being less populated than the District, both Vermont (643,007 residents) and Wyoming (576,851 residents) would cast votes. In fact, since each state would have one vote, voters from those smaller states would have a disproportionate vote than voters in more populous states, whose votes would be relatively weakened.
If a contested presidential election went to Congress, the Senate would vote for the vice president, with each senator getting one vote — again boosting the votes of citizens of small states over those of more populous states.
These are real possibilities. Abundant evidence suggests that “big lie”-endorsing local and state candidates are taking election administration and will work with Congressional Republicans to send the 2024 presidential election to the House if Trump runs and loses again in the electoral college.
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A course correction is possible
However, since the Capitol uprising of January 6, 2021, members of Congress from both parties, along with legal experts and voting rights advocates, have been working to amend the Electoral Vote Count Act of 1887. If such a bill were to move forward, Congress could include a provision that would give DC a vote for president and vice president, should there be a House and Senate election. Giving the district the right to vote in a disputed or contested election would increase the country’s democracy.
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Clarence Lusane (@clusane) is a professor of political science at Howard University and the author of the forthcoming “Twenty Dollars and Change: Harriet Tubman and the Continuing Struggle for Racial Justice and Democracy(City Lights, 2022), among other books.