Never Trusted Those Voting Machines Anyway

Peter Shane has a cautionary article in today's Washington Post. In Usurping the Voters, Prof. Shane conjures up a scary hypo based on a close reading of Bush v. Gore,

Under that decision, there is no guarantee that the electors who are decisive in choosing the next president of the United States will themselves be selected by the people of the United States. That's because the justices ruled in that case that state legislatures have unlimited authority to determine whether citizens in their respective states shall be allowed to vote for president at all.

“The individual citizen has no federal constitutional right to vote for electors for the President of the United States,” the court said, “unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”

Imagine, now, a state in which the same party controls both houses of the legislature and the governor's office. There would presumably be no partisan impediment to the state legislature, with the governor's approval, deciding that the majority party in state government shall control the state's electoral vote, regardless of any popular vote in the state. If the Supreme Court's declaration is an accurate statement of the law, there would not be any legal impediment either.

The impedement of course is, as he notes, “outrage” but look how far that's gotten us in the last four years…

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9 Responses to Never Trusted Those Voting Machines Anyway

  1. Matt Weiner says:

    How would that be affected by the infamous no-precedent clause in Bush v. Gore?

  2. Night Owl says:

    There would presumably be no partisan impediment to the state legislature, with the governor’s approval, deciding that the majority party in state government shall control the state’s electoral vote, regardless of any popular vote in the state.

    Even scarier: Under Bush v. Gore, there is also no judicial impediment that would allow a State Supreme Court to declare such legislative action in violation of the US or even the State’s own constitution.

    Remember that the US Supreme Court interpreted the Federal statute as granting the State Legislature sole power to choose the method for selecting Federal electors, thus stripping the Florida Supreme Court of it’s power to review the actions of the Legislature of it’s own state.

    Bush v. Gore thus bars a state’s judiciary from having any say as to whether it’s own state’s citizens are allowed to vote in Federal elections, and leaves the decision solely within the arbitrary realm of the State’s political branches. In turn, the US Supreme Court usurps for itself sole power to review this state legislative action, and leaves state judiciaries with absolutely no say in whether even it’s own state constitution has been complied with.

    So much for the concepts of Federalism, state rights or the even co-equal branches of government.

    Judicial Conservatism indeed.

  3. jam says:

    South Carolina’s state legislature appointed the state’s presidential electors until the state seceded from the union.

  4. Brett Bellmore says:

    “Under Bush v. Gore, there is also no judicial impediment that would allow a State Supreme Court to declare such legislative action in violation of the US or even the State’s own constitution. “

    Perhaps because it wouldn’t be a violation? Not everything you find offensive is unconstitutional, after all.

    In order to get away with such a thing, the legislature, as a practical matter, would have to do it BEFORE the election. Once the election, as mandated by state law, has taken place, the electors HAVE been chosen by the means the legislature decided upon. I needn’t dwell on the likely consequences for those state legislators, who’d be on the same ballot for re-election.

    And, yes, the Florida legislature was acting after the election, but as they were just going to appoint the slate of electors who’d already been appointed by the means the legislature chose before the election, the legal counts, the post election action wasn’t an issue. If they were going to appoint a different set of electors, it might have gotten nasty.

  5. Night Owl says:

    Perhaps because it wouldn’t be a violation? Not everything you find offensive is unconstitutional, after all.

    Setting aside for the moment your sweeping substantive conclusion that denying a state’s citizen’s the right to vote in the Presidential election does not violate any state’s constitution, your whole premise is simply beside the point.

    This is about process. It’s not you, me or even the US Supreme Court that should decide whether a state legislature’s actions violate that state’s laws. It is for the judiciary of that state to decide. The US Supreme Court in Bush v. Gore, however, carved out an unprecedented exception to state judicial oversight where Federal electors are concerned, thus eviscerating the whole concept of separation of powers in state government.

    The legal gymnastics of Bush v. Gore would put Nadia Comaneci to shame. Not only can a state legislature bar it’s own citizens from voting in a presidential election, but the state’s citizens are also barred recourse to their own State Supreme Court in hopes of overturning the legislation on ANY (constitutional or otherwise) grounds. THAT is what I find offensive.

  6. Brett Bellmore says:

    Elector is NOT a popularly elected position, constitutionally speaking. It’s an appointed position, which is filled according to popular election only as a matter of tradition. If legislators wanted to, they’d be perfectly entitled to pin pages from the phone book on the wall, and throw darts. This does not come as a suprise to those of us who didn’t sleep through civics class. If you don’t like it, I direct your attention to Article V. Go for it!

    As for separation of powers, when did this stop meaning that each branch had it’s own area of responsibility in which it was supreme, and start meaning that the judiciary has the last say on everything? The Florida legislature passed a law describing how Presidential electors would be appointed, as is their right, and when the Florida Supreme court decided they had the right to change those rules after the fact, (That they were just enforcing what the legislature wrote doesn’t pass the laugh test.) they got slapped down. My only complaint is that, properly speaking, they should have been impeached as well.

  7. Matt Weiner says:

    the means the legislature chose before the election, the legal counts

    I was under the impression that the judiciary generally got to rule on legal issues. So this doesn’t make the legislature’s power grab any less ex post facto. Not everything you find offensive is illegal, after all.

    I’m sure you’re a better authority on Florida law than the Florida Supreme Court, though.

  8. Brett Bellmore says:

    Really? I don’t think I am. I just think I’m exibiting better faith about Florida election law than the Florida Supreme court did.

    And as I’m not a legal realist, I CAN distinguish between “legal”, and “the rulings of courts”.

  9. Night Owl says:

    The Florida legislature passed a law describing how Presidential electors would be appointed, as is their right, and when the Florida Supreme court decided they had the right to change those rules after the fact

    Wrong. That is not what happened. The manner of elector appointment (ie, by popular vote of a slate of electors) was never challenged. At issue was the state’s own election procedures for determining an accurate count of the popular vote. These state laws on vote counting covered not only Federal elections but also state elections as well, yet the US Supreme Court conveniently decided that for this one Federal election only, the Florida Supreme Court could not adjudicate the law of it’s own state.

    Your whole argument is based on the faulty premise that the Florida Court tried to change the rules about how to choose electors after the fact. That was simply not the case.

    As for separation of powers, when did this stop meaning that each branch had it’s own area of responsibility in which it was supreme, and start meaning that the judiciary has the last say on everything?

    Judicial review of legislative actions IS the court’s area of responsibility ever since 1803. I direct your attention to Marbury v Madison. Go for it!

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