Fact Check: How much power do states have under the Constitution?
Editor’s note: This story has been corrected to address the omission of additional examples of state legislative powers in the U.S. Constitution. Because of the correction, the rating was changed to “zero stars: false.”
THE MEDIA: Web.
WHO SAID IT: Sylvia Allen.
OFFICE: State senator, District 6; Senate president pro-tempore.
THE COMMENT: "How the Electoral votes are appropriated is only one of two of the powers the state legislators have been given in the U.S. Constitution. The other is Article V which allows the states to propose amendments to the Constitution."
THE FORUM: Facebook post on Dec. 20, 2016.
WHAT WE'RE LOOKING AT: The powers of state legislators outlined in the U.S. Constitution.
ANALYSIS: The U.S. electoral college voted in December to seal President-elect Donald Trump’s victory despite Hillary Clinton’s popular vote victory margin of nearly 3 million. Last week, Congress, meeting in a joint session, certified the outcome of the Electoral College balloting.
This presidential election marks the fifth time the Electoral College victor did not win the popular vote, according to FactCheck.org. That has led to loud debate of the merits of the Electoral College system.
Sen. Sylvia Allen’s Facebook post came in response to what she said was a lot of email from constituents “asking (her) to change the way the Electoral College works in our state.”
The two powers she claims the Constitution grants state legislators are specified in articles II and V:
- Article II, section 1: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”
- Article V: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments.”
The Constitution, however, specifies more than just those two powers as being granted to state legislatures. For example:
Article I, section 4: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.”
Article IV, section 3: “New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”
The 10th Amendment addresses more broadly states’ powers: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” These state powers include establishing local governments, regulating state commerce and regulating corporations, among other powers.
Regarding the Electoral College, the members are selected by political parties in each state. According to the National Archives and Records Administration, “They may be state elected officials, state party leaders, or people in the state who have a personal or political affiliation with their party's Presidential candidate.”
BOTTOM LINE: Allen is correct that choosing electors and proposing constitutional amendments are two powers reserved for the states and outlined in the Constitution. They are not, however, the "only" the state powers specifically mentioned in the Constitution.
THE FINDING: Zero stars: False.
SOURCES: Sylvia Allen’s Facebook post; "Presidents Winning Without Popular Vote," FactCheck.org; U.S. Constitution, ConstituteProject.org; "About the Electors," National Archives and Records Administration.