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Election Law @ Moritz

Election Law @ Moritz


Silence of the Lambs

With the election of 2012 now well over and past the second inauguration of the incumbent President, the historical analysis of the events has begun and will last as long as written human history lasts. An interesting tidbit may already be lost to the majesty of the moment.

The voters of three very different states, Alaska, New Hampshire, and Ohio, all had an opportunity to call state constitutional conventions. In each state the voters turned the opportunity down by very similar votes, 68%, 64% and 68% respectively against.

The paucity of public comment on the resolutions in each state was deafening. Other than formal messages in newspapers and an occasional editorial comment, lost in paragraphs with much more succulent issues, there was no real public debate or discussion. In each state most voters were surprised totally to find the language on their ballots.

The constitutions of these three states and thirteen others give voters an opportunity, at regular intervals, usually every twenty years, to call a constitutional convention. They never have. Pity.

Why do we fear to vote yes? Our fifty states have held more than 180 additional constitutional conventions after their initial formation conventions. Most states have had an average of three constitutions; New York is on its fifth constitution, adopted in 1938.

State legislatures called most all of these subsequent constitutional conventions (except for some very notorious ad hoc, post-civil war conventions in Southern States), and there’s the rub. A citizen vote to empanel a constitutional convention by-passes the politicians in control of the state’s government. The incumbent members of state legislatures and the governors do not begin them, nor control them, nor write them, nor decide whether to submit them to the populace for ratification.

The Ohio provisions are instructive. If citizens vote to call a convention, each house district holds a second vote to elect delegates, “without party designation,” to the new convention. The delegates’ work is then submitted to the populace in a third vote to be adopted by a “majority of those voting.”

Note what the provision does not require. It does not require a full rewrite by the delegates. The elected delegates can choose to do nothing, to amend the existing constitution, or to start from scratch, all independently, at least formally, from the assent of any governor or state legislature.

My informal inquires on why we do not take such an opportunity usually produce a version of this response: “We could do with some very overdue changes to state government structure and incentives, but…. the crazy people may show up. Who knows what they would do…”

In Ohio the incumbent politician’s fear of a popularly called convention leads to a once every twenty year ritual. The legislature, on the year before the convention language is on the ballot, calls a Constitutional Commission, staffed with appointees named by each political party. The appointees are usually safe, often -retired politicians and a few academics. The Commission meets, discusses some technical changes (anything controversial goes nowhere), and recommends to the legislature that the legislature submit a harmless amendment to the constitution to the voters using the present constitution’s amendment procedures. The quiet point: We in Ohio do not need a convention; the pros are working on amending the constitution on your behalf.

Why so little confidence in the judgment of a new set of elected delegates? The framers of the federal Constitution of 1787 showed some resolve and judgment when they junked the Articles of Confederation, which, by the way, started as an effort to amend rather than scrap the Articles.

In any event, and perhaps most important to re-stabilizing a sensible notion of constitutional theory, the opportunity of sixteen states’ voters to call a constitutional convention reaffirms American constitutional law as based on a Lockean notion of civilian consent. The opportunity and failure to call a convention is a kind of consent. So too is the yearly opportunity, and failure, of state legislatures to call conventions, for that matter.

Many- too many-academics, overwhelmed with the technical problems that accompany any notion of actual consent, have largely abandoned the concept as a foundational justification of American constitutions. It would be great for a state’s voters to call a state convention now and then to show them how wrong they are.


Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

Read full post here.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Wisconsin Supreme Court Upholds Voter ID Law

In two opinions issued today, the Wisconsin Supreme Court upheld the state's voter ID law against challenges that the law violated the Wisconsin Constitution. The court issued an opinion in League of Women Voters of Wisconsin v. Walker and also an opinion in Milwaukee Branch of the NAACP v. Walker.

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