Wednesday, October 04, 2006

Foley and Florida’s “Quirky” Election Law

Okay, so it’s been a while since I’ve posted anything here at TPS or anywhere for that matter. Thanks to BDJ for keeping things somewhat active during my extended absence. I could riddle you with the usual excuses, work, work, travel, work, and well there was the time when I was working, but you get the point. Now that things have slowed a bit, I’ve had some time to reflect and concoct this post.

While there are lots of things that one could say and write about the Congressman Foley situation, I only really find one element of it that is interesting to me. That element has to do with what will happen on Election Day in the Florida 16th, Foley’s district. As noted and well-respected Election Law blogger and law professor Rick Hasen has pointed out section 100.111(4)(a) of the Florida Elections Code appears to allow for “proxy candidates” in situations such as this one. By this I mean that former Congressman Foley’s name will appear on the November 7th ballot, but votes cast for him will be attributed to the Republican Party and not Foley himself. Thus, since the Florida GOP has named another candidate for the seat, a vote for Foley is in effect, assuming I’ve read and understood the law correctly, a vote for the replacement candidate. Unusual, for sure, but I’m not convinced that there is anything illegal/unconstitutional about it, nevertheless I’m opposed to such a “proxy candidate” scheme this being applied to congressional or senatorial elections.

So Mr. Hotshot Lawyer, explain that last sentence. Well as I said, my objection doesn’t necessarily stem from a strict legal or constitutional objection, but rather from a democratic and institutional perspective. I concur with Professor Hasen’s analysis of the constitutionality and legality of the Florida law, which you can read here. The Constitution clearly affords Florida the right to pass such a silly election law, but that doesn’t mean that Congress has to accept the results. Art. 1 sec. 5, cl. 1 states that “Each House shall be the judge of the elections, returns and qualifications of its own members …,” which, of course, means that a person is not a member of Congress until Congress says that they are. Congress has in the past refused to seat members who have arrived in Washington D.C. with election credentials certifying them the winner. See, e.g., Powell v. McCormick, 395 U.S. 486 (1969) (reversing Congress’s decision not to seat Congressman Adam Clayton Powell on qualification clause grounds). Given the precedent for refusing to seat Members, Congress should exercise its right to refuse the seat should a “proxy candidate” wins the Florida 16th race. Simply put, the “proxy candidate” would not have “won” the election; note that I’m defining “won” in the simplest terms, namely, receipt of the most votes.

Congress, to the best of my knowledge, has always decided elections based on who received the most votes, and there is absolutely no reason to deviate from that precedent now. I don’t believe there has ever been a “proxy candidate” situation before, but from an institutional position I believe Congress should reject this idea. Besides it is not like there isn’t a solution. If Mr. Foley wins the most votes (unlikely I’m sure, but possible), he would of course refuse to take the seat and thus a vacancy would be declared and a special election would ensue. This scenario would likely result in a GOP win as the seat is a “safe” one for Republicans, according to almost every source I’ve seen. Allowing a proxy candidate” who only received votes by virtue of a quirky law would, in my opinion, do great damage to our democratic process and by extension Congress has a whole. The winner of the election wouldn’t necessarily be the person with the most votes. Thus, the legitimacy of the process would be questioned and rightly so. Congress depends on democratic legitimacy, the House of Representatives more so than any other part of our government, including the President. To allow a deviation from the principle of “person with the most votes wins,” would, it seems to me, irreparably damage that legitimacy. Of course, it is true that a write-in candidate who wins a majority of the vote outright posses no institutional problems and, therefore, should be seated by Congress. Any other combination, however, and I strongly believe Congress should refuse to seat the person and force a special election.


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