You and I don't have a right to vote for President

Miscellaneous and Personal Stuff I Must Share
1

I ran across an interesting column by David Broder in the Omaha World Herald.

It seems that in the Bush vs. Gore opinion the Supreme Court emphasized that the US Constitution gives the right to select the electors for US President to the state legislatures and the people can be excluded from the election if the legislature decides to do that.
Constitution 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, [bold added] 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 elector.

The relevant part of the Court’s Bush vs. Gore decision:

[December 12, 2000]

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U. S. Const., Art. II, §1. This is the source for the statement in McPherson v. Blacker, 146 U. S. 1, 35 </cgi-bin/getcase.pl?navby=case&court=US&vol=146&invol=1&pageno=35> (1892), that the State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. Id., at 28-33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 ("[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated") (quoting S. Rep. No. 395, 43d Cong., 1st Sess.).

Actually, Scalia is big on “original intent” and it was obviously the intent of the framers that the legislatures of the states have the sole power to decide how the president is chosen. And, as the Court’s opinion points out, this was the method used by some states in the beginning. That is when “original intent” should have been much clearer to those state legislators.

Probably any state legislature that decided to select the electors by themselves without a vote of the people would get a lot of static, but they have a perfect right to do so.

I think it is interesting that the Court chose to include this statement in the opinion and wonder why the majority did so.

2

Well, that’s not exactly new news. Popular votes for Electors weren’t all that common until a few decades after the founding of the republic, and even then, most state legislatures only chose to listen to white, male property owners.

3

I believe that in South Carolina, the legislature selected electors up to Reconstruction.

4

For some reason, I’d had it in my mind that the extension of the ‘right’ to vote, first to women, then to 18-20 year olds, took care of that.

Looking at the actual wording of the Constitutional amendments, it’s a lot less clear. The Nineteenth Amendment, for instance: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” The 26th Amendment, which lowered the voting age nationally to 18, has the same sort of wording.

If it said, “such right or privilege as citizens of the United States have to vote…” it would be absolutely clear the other way: the Amendments would not be asserting a right to vote, but simply saying that where that right or privilege existed, it could not be denied or reduced on account of sex, or age once one was 18 years of age.

I’m obviously not a Constitutional lawyer, but lack of those credentials has never stopped us, as a group, from wrangling over the grammar of the Second Amendment, for instance. But to me, the clause “The right of citizens of the United States to vote” suggests to me that the Nineteenth (and 26th) Amendments are making reference to what they regard as a pre-existing right to vote.

Time for some lawyers to jump in.

If the Supremes don’t believe the right to vote exists on a par with the right to free speech, it’s certainly time for us to amend the Constitution to fix that.

5

Well, friends, feel free to start a movement to amend the Constitution to fix the indirect election problem. The good news is you don’t have to start from scratch. You can look up the previous attempts to do it, and you can see what was persuasive and what wasn’t. The bad news is there have been over 200 attempts so far, all unsuccessful.

6

The right to vote referenced in the various suffrage amendments can be taken to mean the right to vote for representatives and senators, for state and local offices. I seem to recall reading something in relation to the Bush v Gore debacle, I mean decision, that said something about how once the state extends the right to vote for president to its citizens it can’t take it away again later, but I’ll be switched if I can remember where I read it.

7

It looks to me that you are mistaken, RTF. As the B v G opinion notes there is no specific right to vote for President. States need not popularly elect the presidential Electors but once they do make that decision then every qualified voter is guaranteed an equal vote ( equal to other qualified voters of that state ). The amendments you refer to just place limits on the qualifications states can require.

Amending the Constitution to eliminate the EC is a rigged game.
Luckily we don’t have to play.

( OMG I’m in MPSIMS )

8

I don’t think this is true. If you read the Bush vs. Gore opinion that I cited above, the Court specifically said that the State Legislatures’ power in this matter is “plenary” i.e. absolute and all encompassing.

And, to quote the opinion; “The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (’[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated’) (quoting S. Rep. No. 395, 43d Cong., 1st Sess.).”

9

Yes, the Constitution allows the state legislatures to choose the manner by which presidential electors can be chosen, and a state legislature could potentially select a manner which disenfranchises that state’s voters. However, the reality is it ain’t likely to happen, and if it does, it will get changed back darn quick one way or another.

Voting for President (or more accurately presidental electors) is a “right” (or more accurately privilige) that the American public has come to expect and treasure. Yes, some state legislature could vote to take the selection of presidential electors into their own hands (or some other system), but the voters of that state would almost certainly become quite irate unless it were some very unusual situation (see Florida 2000, where if the deadlock persisted, under the state law it appeared that the legislature would have the right to select the electors on a breakdown of the usual election mechanism). The voters would most likely use the state electoral processes (ballot initiative or voting the legislators out) to reverse their disenfranchisement in presidential elections.

Failing state action to cause the presidental electors to be selected by popular vote, it is possible that at that time a constitutional amendment would be passed requiring it.

At this time, however, we seem to be operating under an “if it ain’t broke (too much), don’t fix it” policy with regard to presidental election procedures. By and large, the system works (with a few obvious hiccups), so there’s no great impetus for change.

10

Well, and also the suffrage amendments prohibit banning voting for specific reasons…if people can vote for president, you can’t stop them because of race, or because of sex, or because they can’t pay a poll tax, or because of age if they’re at least 18. They’re not absolute.

11

I’m not sure I’m completely following you (so pardon me if this is off-base) but I kinda think you’re misinterpreting that. The plenary power they’re talking about is the power to pick the electors, which is a process wholly separate from voting for President. Once the electors are in place, the presidential election can occur. The parts you’re quoting don’t seem to have to do with a presidential election. Just elector selection. Which, as it says, isn’t done by popular vote.

12

I think it has its good and bad points. Were, lets say, Jerry Springer to run for president, it’s quite possible he would win the popular vote, anyone with a celebrity status, seeing as how we elevate celebrities to the a near demigod status in this country, could very well run for, and win an election to the highest office in this country. Now, this could be good, or very bad. So would you want some ditzy celeb to have the final say on how this country is run? Or would you rather some well seasoned judges to be able to laugh, and say you must be joking, we’d be better off with another four years of Clinton. (Not that I think ill of Clinton. He was a damn good president, even if his taste in women was a little on the shady side.) Consider it a failsafe, even though it’s not foolproof. God knows they screwed up when they elected Bush.

13

otto wrote that he had read somewhere that once the legislature established that citizens voted for electors, granting of the vote for electors can’t be rescinded.

The Court opinion clearly says that it can be rescinded at the sole discretion of the legislature.