In the wake of Florida 2000, there was some considerable discussion about whether Florida’s legislature would “step in” and name a slate of electors.
Now that we have some distance (and hopefully even some lessening of the rancor of that time, although maybe not) here’s the question:
Breaking news: the state of South Dakolina has announced that they will not continue to have presidential elections. Starting in 2008, South Dakolina’s electors will be chosen by majority vote of the South Dakolina legislature.
Is this constitutitutionally permissible? May the federal courts invalidate South Dakolina’s new scheme?
All state legislatures have chosen to select their presidential electors by statewide popular election, but that is a tradition, not a constitutional requirement.
It’s constitutionally permissible. It’s entirely possible that the courts could interpret statute law contemplating electors (in the normal sense, voters) choosing Presidential Electors to infer that the universal practice of indirect popular election of the President has moved into a constitutional guarantee status. It would be interesting to see arguments for and against that view.
The provisions respecting voting for electors don’t create a constitutional requirment for voting in presidential elections. They provide that if there is a general election to select the electors, the right to vote can’t be denied to any citizen on the basis of race, color or previous servitude (Fifteenth Amendment, sex (Nineteenth Amendment, failure to pay a poll tax Twenty-Fourth Amendment, or age (over 18) Twenty-Sixth Amendment. That’s not the same as saying that citizens have a general right to vote for electors in their state.
As well, in Bush v. Gore, if I remember correctly, the majority of the Supreme Court hung part of their analysis on the fact that the effect of the decisions of the Florida courts effectively took away from the state legislature its exclusive control over the selection of the Florida electors, contrary to Article II.
Given the propensity of courts to make law out of whole cloth, Polycarp, you might be right. But considering that presidential electors were chosen by the legislators at one time in our history, with no apparant constitutional problem, I fail to see where there would be a problem now.
Not that I want to see it, of course. This would be another of those things I consider to be wrong, yet perfectly constitutional.
While I take your point, this is not a case of finding a right to privacy or autonomy in relationships or marriage or travel where none is spelled out; it would be a case of reading Federal statute law regarding what is clearly a Federal question as having restricted a formerly permissible practice, pre-empting the state legislature’s power to determine the mode of choosing (or chusing) Electors. However, given the clear Constitutional empowerment and the fact that the statutes would not state that popular election of Electors was required but simply presume it en route to defining how to certify them, who may or may not be restricted from voting, etc., I think you’re probably right that South Dakolina’s decision would be constitutional.
This isn’t the first thread you have started like this Bricker. As far as I know no Doper or anyone for that matter has offered an argument that this would be unconstitutional. As such I would expect this thread to be a series of nos although I suspect you are waiting for someone to proffer a Due Process argument against this. I’ll be a pal here an offer that argument up as I suspect that is actually what you wish to debate here, but in the future just play Devil’s Advocate in the OP. If I am off base with this assumption just let me know and I will apologize.
Lets say for example that South Dakolina bans people from voting on some arbitrary basis such as having 4 fingers, no arms or having only lived in the state for 3 years. Lets take the last one as it is the most realistic. South Dakolina has a requirement that citizens must residents of South Dakolina for 3 years before being allowed to vote for the legislature becuase they only want permanent residents deciding issues. As far as I can tell this law is not unconstitutional becuase it passes the rational basis test with flying colors.
However when the legislature decides to change the way they pick electors those new to South Dakolina are being denied the right to vote in the Presidental election. In other words they are being denied their right to vote for the President for no reason. This on the face seems to be a violation of substantive Due Process becuase it fails the rational basis test.
As with the other thread Due Process has never been used to overturn such specific language in the constitution and this issue is no different.
Does it implicate the Equal Protection clause? South Dakolina’s residents are now denied the voice in choosing the President that North Dakolina’s residents have.
This thread arose after reading a series of articles about the 2000 election and the various “what-if” scenarios – and an honest mystification about how far proponents of a living Constitution might feel they can (or should) legitimately go. If this is a truly Bad Idea, isn’t there some subset of people out there who feel that THAT alone is sufficient to make it unconstitutional?
I hope the answer to that is ‘no’. But I’m not sure.
I doubt it. That’s like arguing every state’s citizens should get an annual check from the state just because Alaskans do (the oil dividend). I don’t think “equal protection” extends to things that are purely a creature of state policy.
Don’t take my statement the wrong way. I am not accusing you of trying to pull a “Gotcha Ya!” on anyone. Rather I am just suggesting that if there is a specific issue or argument you want to debate specify it in the OP. It would probably save a page or two in the future of waiting for someone to proffer the argument you want to argue.
I think there is a fundamental issue here that we need to address. Not many people, if any, would argue that a law should be found unconstitutional becuase it is a bad idea. Rather it is unconstitutional becuase it violates the rights of the citizentry. Saying that the government can do anything that is not specifically prohibited ignores the 9th amendment just as saying the government can’t do anything not specifically allowed ignores the 10th amendment and the necessary and proper clause. Obviously all rights not specifically mentioned in the Constitution needs to be filed under one of those two options.
How do we determine then which rights go into which file. I would posit that we ought to look at those rights specifically given to the people and extrapolate from there. Of course the quintessential case in this argument is Roe vs Wade so I might as well use it. Looking at the amendments specifically the 1st, 4th and 14th it is obvious to me at least that the framers wanted the least amount of government intervention necessary. I would say that the citizen’s right to basically be left alone falls under the 9th amendment. There probably is a fancier name for it but I think that says the meaning accurately.
Of course if we came to that conclusion and also concluded that the government as no right to interfer with the citizentry except in cases specifically proscribed in the constitution we would be ignoring the 10th and necessary and proper clauses. Again I would argue that we should look at the specific powers granted to the government in the constitution. It does not take a convulted interpetation to read that the government has the power to protect the lives of citizens and promote the public good.
I guess the point I am trying to make here is that a strict reading of the constitution either way whether it grants the remainder of the rights to the people or the government ignores parts of the Constitution. The Constitution was never meant to be a list of the rights of the people nor was it meant to be a list of the powers of the government. It was, as I believe you put it, intended to be a live animatronic dancing Constitution.
To get back to your question, no the judiciary should not make up rights out of the cloth becuase they find a law to be a bad idea. But the idea that the judiciary has made up rights out of cloth is a straw man. It is merely the same reasoning that brought us about the power of the government to promote the public good. That isn’t anywhere in the Constitution but was not made up out of cloth either.
Which constitution are you referring to, Bricker? IIRC from those discussions, every state including Florida delegate the choice of electors to the people via their own constitutions. The FL lege therefore lacked the constitutional authority to do what they were trying to do.
What are the terms of the South Dakolina state constitution?
I don’t recall any discussion of a Florida constitutional provision such as you describe, and a quick review of Florida’s state constitution doesn’t have it leaping out at me.
Yeah, but then you have another state beholden to Disney.
I don’t have a constitutional problem with the issue…even if it requires an amending of the state constitution in question.
What I think WOULD happen is a quick repeal via the ballot box of the representatives who pushed it through. Some things, once assigned, are hard to take back.
There isn’t one, but Congress could pass a law saying states must choose their electors in a direct election or loose federal funding for highways, schools, welfare, etc. Congress can make states “volunteer” to pass laws in areas where the fed-gov can’t pass laws directly simpley by threating to cut the purse strings.
Bricker, if you mean to discuss Florida 2000 yet another time, kindly make your point directly. If you don’t, then what the hell are you after this time? You’ve posted enough simple gloats over the results already; are you looking for legal/moral vindication as well?
No. I’m looking for the very sharp minds that inhabit this forum to either support or reject the hypothesis that if a state legislature were to step in and directly choose a slate of presidential electors, the federal courts would be powerless to intervene. This scenario is not a wild one; it was discussed during the Florida 2000 election debacle.
The results in 2000 came from the votes cast and from the action taken by the Supreme Court, but they had nothing to do with the state legislature. So what actually ended up happening in Florida is not really relevant. Since you asked for a state constitution for my mythical state, I gave you one that, so far as i can tell, is silent on any issue that would be relevant to this question.
I wonder if Congress couldn’t pass a direct law mandating popular votes for electors in states… but that’s not really what I was getting at. It’s not congressional action, but federal judiciary action, that intrigues me here.