Tuesday, July 13, 2004

Constitutional Law: Why Only States Can Regulate Elections

This whole election-delay fuss has made me turn my eye toward domestic matters. On one hand Condi Rice is stating that there are no plans to delay elections. Of course the White House also claimed that there was no plan to invade Iraq either and we all know how that turned out. Remember that when you read the spin on the LAT site.

National security advisor Condoleezza Rice was even more emphatic. "Let me just be very clear: I don't know where the idea that there might be some postponement of elections comes from," she said on CNN.

The Department of Homeland Security has been researching laws and precedents in an effort to gather information but is not drafting a plan.

There are some who claim that the Bush Administration is already pressing behind the scenes for legislation to postpone an election. Again the semantics of "having a plan" as opposed to acting consistently with a course of action are bandied about.
The Bush administration has asked for legislation enabling it to postpone the November election as a result of a terror attack. While worded very carefully to suggest that an attack must take place for such a move; I do not see either of the below stories unequivocally state that, if granted, these powers might not also permit elections to be “postponed” on merely a well-publicized threat. Don’t believe the press stories. Read the legislation when it is introduced to see what it says there. If that discretion is included then we are at the edge of an abyss more dangerous than anything we have ever faced.

These powers, if enacted, will go to the Department of Homeland Security. DHS would also be the entity to decide when, or if, postponed elections would be held.

Allowing suspension of the elections on just the threat of a terror attack would create a hole in the legislation big enough to drive an oil tanker, or an open dictatorship, through. Since the legislation has not been seen yet we do not know what it will say. Once introduced, the bill would then go into Senate and House Committees (Republican controlled) where the language could easily be modified to give discretionary power to the Administration. At that moment the Constitution would overtly cease to have any operational meaning at all. The separation of powers would vanish.

Judging from the news stories tonight we will probably see the legislation introduced fairly quickly. From the instant it appears, this legislation must be tracked daily, even hourly, at http://thomas.loc.gov.

I have no idea whether or not the Bush Administration plans to suspend elections. I do know two things. The first is that I distrust appearances especially when Condi "We had no idea bin Ladin wanted to attack inside the United States" Rice is out there saying the Administration has no plan to do this. Appearances have always been untrustworthy. This is not something I accuse the Bush Administration of in particular.

For instance, take the Guardian (UK) story about Captain Cook's demise. The official version produced by an artist talking to some crew members is that Captain Cook was killed by native islanders while having his back turned to them, and signaling his crew heroically to stop firing. Later as it turns out pictures were unearthed with more serious evidence supporting them that indicated that Captain Cook had shot his firearm and was struggling for his life as he clubbed islanders with the butt of his rifle. That in itself could be understandable, except that these inconvenient pictures were then altered to fit the more official and heroic account lauding his exploits post-humously. There has always been spin, and those who bought into it always been suckers.

So mind you I'm not accusing the Bush Administration of some special vice. They're just doing what everyone else trying to represent themselves to the public has always done when in positions of power: presenting the account they prefer to the public.

The main objection I have is that the system being proposed is simply not Constitutional. This is a State powers and Federalism issue as well as a Constitutional issue. Note:
Article. II.

Section. 1. The executive Power shall be vested in a President
of the United States of America. He shall hold his Office during the
Term of four Years, and, together with the Vice President, chosen for
the same Term, be elected, as follows:

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: but no Senator or Representative, or Person holding an Office
of Trust or Profit under the United States, shall be appointed an

The Electors shall meet in their respective States, and vote ...

The Congress may determine the Time of chusing the Electors, and
the Day on which they shall give their Votes; which Day shall be the
same throughout the United States. [emphasis added]

Now it is clear, that the States may choose their own timing of elections. Note also that the Congress only controls the timing of when the electors are chosen and when they cast their votes. What is left out is that the Congress may (conspicuously) not determine the timing of State elections regarding the President.
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 chusing Senators

Note that the power to control the election of electors to the electoral college is controlled wholly by the States and the Congress has no power whatsover to determine the manner of the choosing of the electors. By honored custom and tradition, and enacted through state statuatory law popular elections are held in each state through which the State may choose its electors. However the electoral college is not itself bound by the choices of the state legistlators or inhabitants.
This system while seemingly ill-defined is the Constitutional safeguard against an electoral disruption. If the Congress so wishes it may move the dates of the choosing of electors to allow States more time to hold elections, or change the date of meeting of the electoral college. States are in complete control of how within that time frame they manage to choose electors. If necessary and consistent to their State Constitutions they can simply meet and pick some guys off the street. Remember electors are chosen: "in such Manner as the (each state's) Legislature
thereof may direct

If one or more states were disrupted by a terrorist attack, then they would either have to meet to reconvene the election, patch it somehow, or to choose electors by another method - it could literally be lots if that was allowed by State Constitution - and they would have as much time as Congress allowed them by either leaving the traditional date of the electoral college where it is or moving it to give some states more time to ratify results. In any case, the Constitutional machinary would progress and produce an electoral college choice of President even in the event of an attack so massive it disrupted popular polling in several states. All it would require is a copy of the US Constitution, consultation and legislation by Congress, a copy of each States Constitution, and a quorum of State legislators. That's it. Theoretically they could randomly pull state citizens off the street as electors.

Now as much as I dislike the case, Gore v. Bush (2000) is clearly a precedent here.
Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment," the per curiam opinion held 7-2 that the Florida Supreme Court's scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in practice. The record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county. Because of those and other procedural difficulties, the court held that no constitutional recount could be fashioned in the time remaining (which was short because the Florida legislature wanted to take advantage of the "safe harbor" provided by 3 USC Section 5). Loathe to make broad precedents, the per curiam opinion limited its holding to the present case. Rehnquist (in a concurring opinion joined by Scalia and Thomas) argued that the recount scheme was also unconstitutional because the Florida Supreme Court's decision made new election law, which only the state legislature may do. [emphasis added]

In simple language if it is unConstitutional to delay an election judicially (usurping the State legislature), then it is also unConstitutional to delay an election through the executive. Furthermore the Constitution specifically states if in the event that not all states should be represented at the time of the electoral college meeting that:
But in chusing the President, the Votes shall be taken by States, the
Representatives from each State having one Vote; a quorum for this
Purpose shall consist of a Member or Members from two thirds of the
, and a Majority of all the States shall be necessary to a Choice.[emphasis added]

There in black and white is the "doomsday" scenario planning of the Founding Fathers. In the event of a massive national disruption, it only requires exactly 33 States (2/3rds is 0.66 times fifty (50) is 33) to meet in order to choose a President and Vice President of the United States. Now I don't know about you, but if more than seventeen states are unable in one form or another to send electoral college representatives to choose a POTUS then we have more serious problems than choosing a President!!!

In any case, the Federalist clauses of the Constitution are quite clear. Congress has no authority to delegate the suspension of elections to the executive. Furthermore Congress can only alter the meeting of the electoral college within limits. States have complete discretion in how they choose electors within the limits of their State Constitutions, and even whether or not popular votes are held to choose these electors. In event of a complete catastrope it only takes 33 states to ratify the vote of a new President and vice President or confirm the incumbent. Finally Congress has no authority to delegate the delay of the election if it should interfere with the electoral college machinery.

There is no discussion really. If we simply follow the Constitution we'll be fine. Now I'm not happy about such a scenario. I believe that an electoral college showdown would increase the odds of Bush being relected, but I would defend such results. If President Bush becomes so onerous a President so as to cry against all reason then the proper channel for such dissent is impeachment through Congressional action and not subverting the Constitution when it's letter and intent is black and white on this matter.


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