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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Are Our Democratic Instincts Atrophying?

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August 3, 2004

I recently published an op-ed (available here) expressing dismay with the implications of a constitutional dictum uttered by the Supreme Court in Bush v. Gore: "The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college." I conceded that state legislatures may be unlikely to exercise the power identified in this sentence—a power to oust the individual voter from the choice of a state's presidential electors. But, because the possibility looms, I traced its practical implications in a nation where one-party control exists in the governments of four of the most competitive states in the 2004 presidential election.

The op-ed elicited a gratifying flow of e-mail and online commentary. The virulence of one negative reaction, however, surprised me. Namely, a number of e-mails and blog entries more or less called me an "idiot" for failing to recognize the Bush v. Gore dictum as an unassailable reiteration of the Constitution's plain meaning.

I was not surprised that critics failed to anticipate the precise lawyerly line of constitutional reasoning that might most effectively rebut Bush v. Gore. An op-ed is not a law review article, and the 750 words allotted to me did not permit me to lay out the theory of the Fourteenth Amendment that would prevent state legislatures from choosing slates of electors without recourse to a popular vote. (That theory appears in an essay on the Electoral College that I contributed to this web site, and which may be found here.)

What surprised me is the apparent alacrity with which my antagonists unflinchingly embraced so undemocratic a reading of our Constitution. I would have thought it the American instinct to believe that something like "privileges and immunities," or "due process," or "equal protection" would come into play somehow to avoid an anachronistic absurdity. I had not thought that the idea of a living constitution was so moribund that my fellow citizens would accept, without interrogation, the suggestion that their state legislatures could nullify their capacity to help choose the President.

You do not have to be much of a judicial activist to go this far. In the famous Youngstown case, Justice Frankfurter—one of our most heroic embodiments of judicial restraint—wrote the following, which I had always thought to be more or less incontestably true: "The Constitution is a framework for government. Therefore, the way the framework has consistently operated fairly establishes that it has operated according to its true nature…. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them."

What gloss has life written upon the constitutional text pertaining to elections? Since the adoption of the Fourteenth Amendment, state legislatures have eschewed popular election only twice—once, in Florida in 1868, a process Florida presumably did not have time to change for that year's election once the Fourteenth Amendment was ratified, and once, in Colorado in 1876, the year Colorado became a state and thus, I assume, before it had fully worked out a permanent system for choosing presidential electors.

Moreover, since the ratification of the Fourteenth Amendment, we have added thirteen other amendments to the Constitution, six of which were specifically intended to further our constitutional commitment to the democratic process. We extended the vote to persons of all races, provided for the direct election of Senators, extended the franchise to women, permitted District of Columbia voters to choose electors, eliminated federal poll taxes, and lowered the voting age to eighteen. The obvious trajectory of our constitutional development is towards more democracy.

Please do not misunderstand: I do not think my constitutional theory, even exhaustively briefed, would be a "slam dunk," especially in the current Supreme Court. But I would have thought our political history sufficient by itself at least to predispose Americans to the idea that the Constitution entitles them to help choose their President. At the risk of reading too much into a handful of comments, I am chagrined to discover that my intuition may simply be wrong.