Last week in a comment to my posting on the Minnesota Supreme Court's decision in Coleman v. Franken the Reverend took exception to my description of Bush v. Gore. Let's discuss that case and consider how the Constitution ought to be amended regarding how we elect Presidents.
On July 2 the Reverend wrote:
[Quoting Huhn] "If upon recount Florida had gone for Al Gore the Congress would not have accepted that result and the House, voting by states, would have installed George Bush as President anyway."
You're speculating here. Perhaps you're correct, we'll never know.
The Bush v Gore debacle relied on, as you say, "no uniform legal standards for determining the intent of the voter,"……at the same time, for example in Ohio, there's no uniform legal standard for voting. Does that mean that Ohio violates equal protection everytime there's an election?
Bush v Gore was the most dreadful example of judicial activism ever, and demonstrated beyond any reasonable doubt that the modern Supreme Court is simply a political entity.
In my opinion the problem with the majority opinion in Bush v. Gore was not the finding that there should be a uniform statewide standard for determining the intent of the voter on disputed ballots – that's just basic fairness. The problem was that the Court first entered a stay prohibiting the recount and then, on the day that it handed down its ruling (December 12, 2000) the Court declared that "time was up" because that was the deadline under Florida law. What's wrong with this is that the Supreme Court normally has no power whatsoever to interpret state law. On December 12, 2000, The United States Supreme Court should have remanded the case to the Florida Supreme Court to oversee the recount, and should have left it up to the Florida court to declare whether or not the recount should proceed. I stand by my opinion that if that had happened the Republican Congress would have responded by throwing out the results from Florida and the House of Representatives (where Republicans at that time controlled 29 state delegations) would simply have elected Bush President. All of which would have been perfectly constitutional.
But lurking in Bush v. Gore is an even greater danger to our democracy. In this concurring opinion authored by Chief Justice Rehnquist and joined by Justice Scalia and Justice Thomas three members of the Court placed principal reliance upon the following language in the Constitution which provides how the Presidential Electors are to be chosen. Article II, Section 1, Clause 2 of the Constitution states:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.
The Chief Justice quoted this passage in support of his argument that the United States Supreme Court did not have to follow the ruling of the Florida Supreme Court in its interpretation of state election law statutes – that instead, the United States Supreme Court could reach an independent judgment about the meaning of state law because under Article II it was up to the federal court to determine what the state legislature intended the law to be. At the same time some Republican members of the Florida legislature wanted to take this language one giant step further, and have the state legislature itself appoint Presidential Electors pursuant to Article II, Section 1, Clause 2, thus guaranteeing Bush's victory.
The point is, folks, that the Constitution does not require that there even be a popular election for President. It is up to each individual state legislature to determine how the Electors are to be chosen. The people do not even have a second-hand right to elect a President. Under the Constitution we are at a third remove in the selection of the President. We elect the state legislature, which determines how the Electors are chosen, who vote for the President – but if no single person earns a majority of the Electoral vote then the matter is turned over to the House of Representatives, voting by states. Is this the proper way to choose the single individual who represents all of us?
Let's discuss this further Thursday. Tomorrow I will summarize what Governor Sarah Palin would have to prove in order to win a defamation suit against Shannyn Moore, Wayne Barrett, and other bloggers and journalists.
{ 2 comments… read them below or add one }
No way, I wouldn't change much! The Electoral College is one of the most brilliant ideas of our founding fathers. I wouldn't mind laws that freeze things where they are now. You were not a big fan of my earlier at-large congressmen idea.
The power of the state legislature is not absolute. They are accountable to the voters. And weren't there some unsuccessful attempts for states to term limit themselves that were overturned in courts?
I would like to go back to the ides of the Vice-President ( and therefore the President of the Senate) being the Presidential candidate that finished second. I think there should be some healthy friction between the legislature and the executive branches.
Are you suggesting an Amendment to the federation Constitution requiring that states implement a democratic methodology to selecting electors?
…so maybe American is a Republic, pure and simple???