Paging Constitutional scholars

Charles Brown CharlesB at CNCL.ci.detroit.mi.us
Tue Dec 12 14:16:31 PST 2000



>>> jlbaird3 at yahoo.com 12/12/00 12:49AM >>>

-clip- Since Scalia has come out with the idea that there is no Constitutional right to vote for President, and therefore presumably the Florida Legislature can appoint any electors it damn well pleases, I decided to look up the actual language.

(((((((((

CB: As much as I don't trust the Supreme Court, I doubt that even they would actually make a holding explicitly based on this as the principle of law ( even though as you say later in your post, the language in the Constitution and the earlier practice gives some support to that interpretation ). Michael Hoover posted on this. But we shall see.

((((((((((

But reading furthur on, you come to this interesting tidbit, in the (post-civil war) 14th amendment:

"...But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state..."

Doesn't this seem to imply that, while the Florida legislature does have the right to remove from their people the right to vote for President, Florida would thereafter lose all of its representation in Congress?

Seems strange, but thats what it says. I haven't heard anyone in the media comment on it.

((((((((((

CB: This sounds like a specific measure to dissuade Southern states from disenfranchising ex-slaves.

((((((((((

There's also this, from the 24th amendment (which, shamefully, I didn't even remember was in there):

"The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax."

What's interesting about this amendment, in contrast to the 13th and 19th which merely refer to a general "right to vote", is that it is specific about what sort of voteing is not to be abridged. Doesn't this imply that the rest of the Constitution implicitly recognizes a right to vote for electors?

((((((((((

CB: What you are saying is not illogical ,but not likely legal logic. The anti-poll tax amendment was not aimed at the issue you discuss, and it is not likely to be treated as just having a sideeffect, unintended impact.

I think (maybe) what the U.S. Supreme Court wants to do is rather than say that the Florida legislature can elect whoever it wants as the electors regardless of the vote of the People in Florida ( which would just be too grossly in conflict with today's common sense about democracy; you already have people grumbling about the electoral college), it would like to say that the Florida legislature is basing its selection based a legitimate interpretation of the vote of the People of Florida.

The barrier the U. S. Supreme Court faces in saying this is that the Florida legislature has already , in the past, established a statute on how the election goes ( for example the automatic recount provision that went into effect when the difference was within a certain margin). Once the legislature establishes this, it is the executive branch that executes, but it is the state courts ,and ultimately the state supreme court , that interprets that statute. For the Florida legislature to vote a specific law now to govern the election of November 7, would be an ex post facto law. In other words, the Florida legislature should elect the electors based on its (prior) statute and the Florida supreme court's interpretation of the statute.

The U.S. Supreme Court conservatives have got to figure out the way around this obstacle to what they want to do. And they are more than capable of finding some smarny logic around it.

The Republicans have a final backstop in the Republican U.S. House, which could refuse to accept the Florida electors, if they are for Gore. Then the House could decide for Bush. By stopping the count and probably causing any recount completion to miss today's Dec. 12 deadline, the U.S. Supreme Court made it easier for the Republican House to reject electors for Gore selected after Dec. 12. That was a most blatant illogical command. Why not allow the recount to continue, in case you decide it is ok.

Bush has the U.S. Supreme Court, the U.S House of Representatives and the Florida state legistature. This is three of a kind, and beats Gore's hand.



More information about the lbo-talk mailing list