Friday, January 26, 2007

Populism Run Amok (as usual)

Regular readers of this blog will (hopefully, I know its been a while) recall that generally speaking we are not big fans of populism. In fact, it is one of a surprising many subjects on which we all tend to agree, regardless of political party affiliation. With this in mind, I’d like to rant a bit about the most recent attempt to bring “populist” ideas into our republic. This time, however, it involves something else near and dear to many of our hearts, the Electoral College.

There is a little known movement afoot to effectively rid the nation of the Electoral College. What’s even more hideous is the fact that this movement seeks to achieve this goal, not by amending the Constitution or even through an activist judiciary (whatever that means), but rather through the state legislatures, and where necessary, the ballot box. Before you all blow a gasket and call me crazy, let me explain. Let’s start with a few basic principles. Recall that electors are appointed by the state legislatures, not “elected” by the voters. In some states the names of the electors who have been appointed actually appear on the ballot, but in most states the candidates names appear giving people the false sense that they are voting for say Kerry or Bush. In reality you are voting for a slate of electors that will go to DC in December and cast an official ballot for the candidate who will be President. This technically of our Presidential election system is simply ignored by the vast majority of citizens who are woefully ignorant of the finer details of our republic. Most, but not all, of the States control how their electors vote. In other words, in most states the electors are to cast their vote according to the winner of the state’s popular vote. In these states the electors have no discretion. For example, if, say a Republican wins the popular vote in Virginia, the electors, regardless of whom they personally voted for, are arguably legally bound to cast their Electoral College vote for the Republican candidate. Interestingly, our own GipperClone, in a legal publican of some national repute, has discussed the constitutionality of these types of state laws in light of the First Amendment. While I am aware of several historical instances where individual electors have disobeyed the public will and “voted their conscious,” it has never, to my knowledge, actually affected the outcome of a Presidential election.

Thus, if the states can pass laws requiring electors to cast their votes for the winner of the state’s popular vote, it should follow then that states could also pass laws that require their electors to cast their vote based on any other rubric that the state legislature deems relevant, right? Such is the theory that a group of scholars and “populists” are attempting to use to circumvent the Electoral College. What this group of activists is proposing is that each state adopt a law that requires their electors to cast their vote, not for the candidate that prevails in the state’s popular vote, but for the winner of the NATIONAL public vote. To use the 2000 election as an example, under this theory, since Al Gore won the national popular vote, states would have required their electors by law to cast votes for Gore, regardless what the outcome in their state was. End result, President Gore, period dot end. Never mind the fact that President Bush actually won more states, he lost the popular vote, and in these people warped mind, should have never been elected President.

Long story short, proponents of this popular election system argue that it is constitutional because it doesn’t interfere with the functioning of the Electoral College. Rather than repeal that part of Article II, they simply assert that the state’s power to appoint and control the votes of the electors can render the College effectively dependent on the popular vote. In other words, they are purporting to use one provision of the Constitution – the state’s power to appoint electors – to trump another, the Electoral College.

Thankfully, thus far the group hasn’t experienced any success. However, rumor has it that bills putting this plan into law have already been introduced in small states like North Dakota, who, because of their small number of electoral votes and virtually homogenous Republican population, are basically ignored in Presidential elections because everyone knows how they’re going to vote anyway. Of course, one could say the same about many states, where the outcomes, based on population demographics, is virtually assured anyway. This list includes, for the most part, states like NY, CA, and TX, large states with big populations who also see very little action during the Presidential election season.

So some states don’t get their fair share of attention every four years. So what? Is that really a reason to change our method of electing the President, which, by the way, has produced numerous peaceful transitions of power throughout our history? Only 3 times has the election, hence the Electoral College, ever been in doubt 1800, 1876, and, of course, 2000. That’s a pretty good record, no? More importantly, however, is that fact that like it or not, we’re not supposed to directly elect the President. We’re not really capable of it, at least not in my opinion. The Electoral College, antiquated as it may be, provides a very real, very important buffer between the election of the single most powerful individual office holder in the country and the general population. To turn such a thing over to the popular will is simply crazy, not to mention antithetical to a republican form of government. One can question the wisdom of even the existing controls on state electors, and I do. I don’t think such laws are unconstitutional, but I’m not 100% convinced they are a good idea. That said, I’m sure this movement is a bad idea, and I hope that those of you who hear about it in your states, will alert your state representatives to its folly.

I’m also not convinced it’s even constitutional, as I question using one part of the document to nullify another. But, unfortunately there is little case law or theory that I could point to in support of my instincts. It’s not as though we were amending the document, in which case the amendment would trump the original text of the Articles. Rather, this is using two equally situated provisions in a manner that renders one null and void. Generally, with respect to statutes, such a construction is not permitted, as the reader is supposed to read the document in a way that gives full force and effect to each provision. Thus, I think as a matter of statutory construction the Constitution should not be read in a manner that would permit such a move. However, I’m far from 100% confident in this assessment. Anyway, just some food for thought. I’m curious to get the reaction from the TPS regulars. Is this as offensive as I think, or just no big deal?


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