In 1825, John Quincy Adams won the presidency with 13 votes. Not “by” 13 votes, but “with only” 13 votes. In that hotly contested election with his fierce rival Andrew Jackson, neither candidate won a required majority of electoral college votes. At the time, 261 electoral college votes were available, requiring a candidate to win a minimum of 131, one over the majority.
While Jackson won a plurality of 99 electoral votes compared to Adams’s 84, the failure by either candidate to achieve a majority sent the election to the House, as mandated by the 12th Amendment. After much haggling, and using guidelines under which each state had one vote, 13 state delegations voted for John Quincy Adams, and seven voted for Jackson.
That legacy haunts contemporary presidential politics and the effort to reform the 1887 Electoral Count Act. Former president Donald Trump in 2021 tried to orchestrate a situation in which disputes about 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 been appropriately criticized as an effort to steal the election, it exposes several ways in which the current U.S. system of electing or selecting a president fails the democracy test — including, in certain cases, the undemocratic exclusion of the District of Columbia, leaving its 700,000 residents without a say in the presidency.
D.C. and the 23rd Amendment
In 1961, Congress passed and the nation ratified the 23rd Amendment, which gave Washington three electoral college votes, ending its citizens’ exclusion from the presidential election. Ordinarily, a state’s electoral college votes are determined by the number of its members of Congress, consisting of two senators and some number of representatives based on the state’s population. With 53 representatives, for instance, California has 55 electoral college votes. Since the District was not made a state, it was instead assigned 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 does have non-voting representatives in both the House and Senate.) While home rule devolved considerable power to the district, including an elected mayor and council, Congress still retains control of the city, much like colonial rule, as the act states in Section 601:
Congress has used this power several times, as when Congress overrode the D.C. vote to legalize marijuana or imposed school vouchers that were widely opposed. Congress may in fact expand this power, or so some congressional Republicans have promised. House Minority Leader Kevin McCarthy (R-Calif.), Rep. James Comer (R-Ky.), ranking member on the House Committee on Oversight and Reform, and Rep. Andrew S. Clyde (R-Ga.) have all threatened to reduce or even end home rule if the GOP takes power in the House in 2023. Claiming that crime and homelessness in the city are out of control, Clyde has told the Daily Caller that he is drafting legislation to repeal home rule.
Leaving U.S. citizens of the nation’s capital without representation in the federal legislature is undemocratic enough. That democratic exclusion would be even more pointed if a presidential election were to be thrown to the House of Representatives.
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Some undemocratic ways the U.S. selects presidents
First, a U.S. candidate can fail to win a majority of the popular vote but still become president by winning at least 270 electoral college votes. This has already happened twice in the six elections between 2000 and 2020. In 2000, George W. Bush lost the popular vote by about 500 votes to Al Gore, but won the election. In 2016, Hillary Clinton bested Donald Trump by 3 million votes, but Trump took office.
Second, under certain circumstances, state delegations in the House get to decide the presidency. That happens if, for instance, there’s an electoral college tie, or if no candidate receives an electoral college majority. It could also occur for corrupt or devious reasons, as when Trump tried to have Republican state congressional delegations vote against certifying several states’ slates of electors.
If a presidential election were to go to the House, that would deprive citizens who reside in D.C. or U.S. territories of any say. Despite being less populous than the District, both Vermont (pop. 643,007) and Wyoming (pop. 576,851) would cast votes. In fact, since each state would have one vote, those smaller states’ voters would have a disproportionate say than voters in more populous states, whose voices would be comparatively diluted.
Were a disputed presidential election to go to Congress, the Senate would vote on the vice president, with each senator getting one vote — again amplifying the voices of citizens of small states over those of more populous states.
These are real possibilities. Plentiful evidence suggests that “big lie”-endorsing local and state candidates are taking election administration offices and will work with congressional Republicans to send the 2024 presidential election to the House if Trump runs and again loses in the electoral college.
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However, since the Jan. 6, 2021, Capitol riot, members of Congress from both parties, along with legal experts and voting rights advocates, have been working to change the 1887 Electoral Vote Count Act. Were such a bill to move forward, Congress could include a provision giving D.C. a vote for president and vice president, should an election be thrown to the House and the Senate. Granting the District the right to vote in a disputed or challenged election would increase the nation’s democracy.
Correction:
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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 Ongoing Fight for Racial Justice and Democracy” (City Lights, 2022), among other books.