This topic is monitored by Moritz Law Professor Peter M. Shane
"Usurping the Voters"
(Reprinted with permission from The Washington Post, July 19, 2004)
We seem to be devoting a lot of time and energy in this summer of our discontent to thinking about things that could go wrong with the conduct of the November elections. Here's one you probably hadn't thought of.
Suppose that some of the electors — the people who under our constitutional system conduct the real presidential election some weeks after voters go to the polls — aren't actually selected by the voters.
Impossible? Not if you give a close reading to the Supreme Court's decision in the case of Bush v. Gore, which finally settled the presidential election of 2000, if not to everyone's satisfaction. 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 ordinary protection against this sort of usurpation is presumably the "outrage factor" — the idea that no legislature would risk the wrath of the citizenry by usurping their right to vote. But in 2000, unfortunately, Florida demonstrated that legislators might well be willing to risk the outrage if they have a case, no matter how contestable, that the electors they are choosing actually do represent majority sentiment in the state.
In a similar spirit, it doesn't seem all that great a stretch to imagine that the legislature in one state would likewise risk provoking outrage if it thought it could justify its decision as retaliation against shenanigans in another state. For example, even if Republicans narrowly won New Mexico, the Democrat-controlled state government could decide to cast New Mexico's electoral votes for the Democratic candidate in retaliation against what might appear to be Republican election "irregularities" in another state. This hardly seems less plausible than other breaches of conventional political behavior we have witnessed over the past quarter-century -- impeaching a president for lying about sex, for example.
What are the potential practical implications in 2004? One-party rule exists in 19 states, including four of the 10 states that the independent and well-respected political analyst Charlie Cook rates as "dead even." Republican state governments in Florida, New Hampshire, and Ohio, and Democrats in New Mexico, could spare us all some electoral suspense and simply decide their respective states' electoral votes on their own. Such a move would give Democrats five of these contested votes and Republicans 51.
It ought to be unthinkable that a state legislature is authorized to usurp the people's role in choosing presidential electors. But unless the Supreme Court repudiates its dictum in Bush v. Gore, there is an entirely serious prospect that a capricious state government, Republican or Democratic, might seek to decide the presidential election by removing the choice from the voters. And there is probably not much that can be done to remedy this situation before the 2004 elections.
One hopes, of course, that for the time being, the outrage factor and common sense will still any move in state governments toward such hyper-partisanship. What's disquieting is the number of recent occasions on which neither common sense nor the prospect of citizen outrage was sufficient to elicit responsible leadership from those who govern us.
The writer is a professor of law at The Ohio State University.
Readers interested in Professor Shane's theory why the Fourteenth Amendment does guarantee individual citizens the right to participate in the selection of presidential electors, should see Peter M. Shane, Disappearing Democracy: How Bush v. Gore Undermined the Federal Right to Vote for Presidential Electors, 29 Fla. St. U. L. Rev. 535-585 (2001), downloadable here.