Monday, July 19, 2004

Constitutional Law: Electoral College Showdown?

A professor of law from Ohio writes an op-ed in the WaPo noting that the Bush v. Gore (2000) case rules that the Constitution has the possibility for a show-down over electors on a state-by-state level. It is correct.

Suppose that some of the electors -- the people who under our constitutional system conduct the real presidential election some weeks after voters go to the polls -- aren't actually selected by the voters.

Impossible? Not if you give a close reading to the Supreme Court's decision in the case of Bush v. Gore, which finally settled the presidential election of 2000, if not to everyone's satisfaction. Under that decision, there is no guarantee that the electors who are decisive in choosing the next president of the United States will themselves be selected by the people of the United States. That's because the justices ruled in that case that state legislatures have unlimited authority to determine whether citizens in their respective states shall be allowed to vote for president at all.

"The individual citizen has no federal constitutional right to vote for electors for the President of the United States," the court said, "unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College."

Imagine, now, a state in which the same party controls both houses of the legislature and the governor's office. There would presumably be no partisan impediment to the state legislature, with the governor's approval, deciding that the majority party in state government shall control the state's electoral vote, regardless of any popular vote in the state. If the Supreme Court's declaration is an accurate statement of the law, there would not be any legal impediment either.

The ordinary protection against this sort of usurpation is presumably the "outrage factor" -- the idea that no legislature would risk the wrath of the citizenry by usurping their right to vote. But in 2000, unfortunately, Florida demonstrated that legislators might well be willing to risk the outrage if they have a case, no matter how contestable, that the electors they are choosing actually do represent majority sentiment in the state.

In a similar spirit, it doesn't seem all that great a stretch to imagine that the legislature in one state would likewise risk provoking outrage if it thought it could justify its decision as retaliation against shenanigans in another state. For example, even if Republicans narrowly won New Mexico, the Democrat-controlled state government could decide to cast New Mexico's electoral votes for the Democratic candidate in retaliation against what might appear to be Republican election "irregularities" in another state. This hardly seems less plausible than other breaches of conventional political behavior we have witnessed over the past quarter-century -- impeaching a president for lying about sex, for example.

What are the potential practical implications in 2004? One-party rule exists in 19 states, including four of the 10 states that the independent and well-respected political analyst Charlie Cook rates as "dead even." Republican state governments in Florida, New Hampshire and Ohio, and Democrats in New Mexico, could spare us all some electoral suspense and simply decide their respective states' electoral votes on their own. Such a move would give Democrats five of these contested votes and Republicans 51.

It ought to be unthinkable that a state legislature is authorized to usurp the people's role in choosing presidential electors. But unless the Supreme Court repudiates its dictum in Bush v. Gore, there is an entirely serious prospect that a capricious state government, Republican or Democratic, might seek to decide the presidential election by removing the choice from the voters. And there is probably not much that can be done to remedy this situation before the 2004 elections.

However much the oldman believes the oldman believes that the Supreme Court damaged it's reputation by interfering in an unseemly and uninvited manner in the dispute of the 2000 election (at great cost to its own credibility) its reading of the Constitution is in this case (unfortunately to say the least) actually correct. As the oldman has pointed out, whether States even hold popular elections to determine the selection of Presidential electors is wholly in the hands of individual Legislators. All power save the timing being vested in the hands of State legislators.

This is a relic of our original system by the Founding Fathers in which identity was much more strongly vested in States than it was in the Federal and national system. People thought of themselves as Virginians and New Yorkers first and Americans second generally. Such popular vestment and interest in the working of state electoral machinery was felt to be the safeguard against abuse. How many of us are even aware of any state elected official now other than the governor of our states?

In the past two centuries the American people have come to view the stakes for national leadership as much higher than in the past. As such they locus of power has shifted despite the Federalist doctrine from the States to the Federal government. Most people are completely unaware of their state legislators or local party slates and processes.

What was considered a feature rather than a bug in the past, could now open the way to dueling state legislators. This is because in modern day politics the extra-Constitutional apparatus of the party has created loyalties that supercede local sentiments. The Founding Fathers simply did not foresee the emergence of national parties whose appeal and social obligations would be considered stronger by local state legislators than balancing the needs of their own constituents. That a state legislator could become more attached to its party line than his own state citizens was an outcome not planned for and a contingency that was not accounted for.

If this fall, states should usurp their own popular election rights - especially if there is a pretext of uncertain results - then this would possibly present a real Constitutional crisis as profound as the Secession of the South from the North. Given the polarization of the electorate and that many states have significant minority party representation, I don't see how this could cause another other than a complete political snafu. If all parties were reasonable then a compromise should be able to be worked out. However such a course of action in the first place is not reasonable, giving way to question what sort of political and potentially violent escalation could result from such a debacle.

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