BS: Supreme Court and Electoral College

Subject: BS: Supreme Court and Electoral College
From: Amos
Date: 20 Jul 04 - 08:21 PM

Usurping the Voters

By Peter M. Shane

Monday, July 19, 2004; Page A17 (summary; full text at
http://www.washingtonpost.com/wp-dyn/articles/A60580-2004Jul18.html)

"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."

...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.

...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.

...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.

The writer is a professor of law at Ohio State University.

---

CONFORMITY


Conformity is the jailer of freedom
and the enemy of growth.

    John F. Kennedy

Subject: RE: BS: Supreme Court and Electoral College
From: Rabbi-Sol
Date: 20 Jul 04 - 08:30 PM

The Electoral College has to go. It negates the will of the majority of the voters. If the next election ends up in the Supreme Court like the last one did, do you think for one moment that Justice Scalia is going to recuse himself and not allow his duck hunting buddy Dick Cheney another term by a 5 to 4 vote ? SOL ZELLER

Subject: RE: BS: Supreme Court and Electoral College
From: Amos
Date: 20 Jul 04 - 09:52 PM

Rabbi:

As far as I know there was one duck hunting trip on which Scalia and Cheney both went.

The deposition or assertions I read stated that they said very little to each other. I find that hard to believe. But if you have some hard data to support this "buddy" categorization I would lie to see it. Believe me I dislike both Scalia and Cheney intesely. But fairness is important, and truth even mopre so.

As for the Electoral College, I would say, take it easy unless you really feel you understand why it was established and agreed upon in the first place. It does serve an important function in balancing the ebb and flow of political will across the country.

A

Subject: RE: BS: Supreme Court and Electoral College
From: Bobert
Date: 20 Jul 04 - 10:04 PM

5-4....... and 4 more years.....

Bobert

Subject: RE: BS: Supreme Court and Electoral College
From: McGrath of Harlow
Date: 20 Jul 04 - 10:15 PM

Duck-killer! He'd never get elected here - mind, he wasn't elected over there either...

Subject: RE: BS: Supreme Court and Electoral College
From: Nerd
Date: 20 Jul 04 - 10:21 PM

As I've said in previous threads, the college itself is not the problem. The problem, as this article also confirms, is that the method of selection of electors is up to state legislators. In most states, this has practically meant an all-or-nothing system, where if you get 49 % of the vote you get 0% of the electors. This is what makes it so uncommon for the electoral results to look anything like the popular results.

Subject: RE: BS: Supreme Court and Electoral College
From: Rabbi-Sol
Date: 20 Jul 04 - 10:36 PM

Ours is supposed to be a government of the people, by the people and for the people. To me that means if the majority of the people say one thing, and an antiquated, outdated, political process can negate that popular will, then in the famous words of Apollo 13 "Houston- We have a problem". I don't think that the founding fathers ever envisioned a presidential election being decided by a 5 to 4 vote of the Supreme Court, overriding the will of the popular majority. SOL ZELLER

Subject: RE: BS: Supreme Court and Electoral College
From: Amos
Date: 20 Jul 04 - 10:46 PM

an antiquated, outdated, political process can negate that popular will...

You waxing rhetorical again, there, Sol?

A

Subject: RE: BS: Supreme Court and Electoral College
From: Bobert
Date: 20 Jul 04 - 10:50 PM

Well, let's take a snapshot of where democracy is these days. 4 out of 5 Congressmen in the United States House of Representatives come from "non-competetive" districts, meaning that 80% of the House election pre-determined. Hmmmmmmm? And we are wondering why folks don't feel any need to compromise. Why should they. If they do, they'll be replaced by someone from their own party come next election...

But if that isn't enought proff that the system is hopelessly broken lets look at Bush v. Gore. What the Supreme Court ruled in a case brought by bush is that Bush "would be harmed" id the Florida recount were to continue. Like a big ol'duhhhhhhh.... Well, yeah, he would have. If the system weren't broke there would be no way a recount would be called off because the the looser would soon be found out! Now that is about as broken as a system can be...

But, yeah, as America implodes from its own greed and inability to "just get along" it will get worse and worse and I can see a scenerio where states will war with one another, then sports teams will refuse to play in other states , and then people will flock to various staes where they feel safe and then, and then...

What we have is a collision course for the next civil war and no one out there with an ounce of leadership couold care less because the current failing sysytem put money in their pockets... Great?!?!...

Mean while back at the ranch...........

Bobert

Subject: RE: BS: Supreme Court and Electoral College
From: Rabbi-Sol
Date: 20 Jul 04 - 11:04 PM

Amos. I learned my American History. The Electoral College was a good idea at the time of the founding fathers in 1776. Today, in this age of a mobile population, the internet, rapid communications, and more public awareness, it has become a vestige of the past. Our Constitution, which is said to be a living document should be amended to reflect these changing times. SOL ZELLER

Subject: RE: BS: Supreme Court and Electoral College
From: Bobert
Date: 20 Jul 04 - 11:21 PM

The Constitution is badly in need of ammendin', Sol, but more than in just the area of elections, but in the way the Legislature works, the way judges are hired (appointed), the way campaigns are financed, the qualifications to vote and the use of "executive powers", not to mention reaffirming the Legislatures responsiblity for declaring war.... just to name a few...

Might of fact, the Constitution may have become a time bomb waiting to blow us all up...

Maybe what we need is a Constitutional Convention....

And if that doesn't work then maybe the right of states to say "Hey, take my star off that flag. We're outta here!" Yeah, I know that has happened before and it might just happen again as the neo-con minority continue to tighten the noose on the majority...

Bobert

Subject: RE: BS: Supreme Court and Electoral College
From: Jim Dixon
Date: 21 Jul 04 - 01:17 AM

I think I see one flaw in Peter M. Shane's argument. He's right that election laws are determined by the states, and that state legislators, along with the governors, can change those laws, and take the election out of the hands of the voters. But they can't do it retroactively. In other words, they can't hold an election and then decide to nullify the results of the election. That would be a violation of the ex post facto prohibition in the US constitution (Article 1 section 10).

Whatever laws are in effect at the time of the election would be binding. If the legislature wanted to change the procedure, they'd have to do it before the election.

"An ex post facto law is a law passed after the occurrence of an event or action which retrospectively changes the legal consequences of the event or action." – from http://www.lectlaw.com/def/e086.htm

Subject: RE: BS: Supreme Court and Electoral College
From: Nerd
Date: 21 Jul 04 - 04:42 PM

Jim, I think he's suggesting (and I don't know for sure, nor do I know if it is true) that in at least some states the rules for selecting electors are traditions of the legislature rather than laws. In that case, the legislature could change them at will, even after the votes are cast. I believe this is what the Republicans did in redistricting Texas: by tradition, this is done once every ten years. The Republicans figured, we now have the votes to ram through a gerrymandered redistricting, so why not do it? It was not a law that it be done every ten years, just a rule of the legislature that they were able to change with enough votes.

Rabbi Sol: We went over this in many threads after the 2000 election. In at least one respect, the electoral college is still a useful idea. One of the reasons the Founding Fathers established the rules of the college was to even out the differences between big and small states just a little. Each state gets one elector per congressional district and one per senator. That means one group that is based on population and one that is fixed. In this way, Vermont gets three (one congressional district and two senators). A big state with a hundred districts gets 102. Because of the two extra electors, the big state has its number of electors increased by 2 %, the small state by 200 %. The idea was to prevent a situation where only a few big states mattered in elections.

What state legislatures then did was to undermine this by making the rules for choosing electors all-or-nothing. In other words, by giving ALL the electors to the candidate who wins the most votes, they make it again the case that only a few large states matter in US elections. You can win 49% of the vote in NY and get 0% of the electors. So New York's huge number of electors act as a voting bloc, making the state far more powerful than it should be. In theory, it would be possible for a candidate to get 49% of the vote nationwide, and get almost no electors (two states, Maine and Nebraska, award electors proportionally, so the number would not be zero).

In my opinion, if we were to keep the college, but make it a federal law that electors are chosen proportionally in every state (ie if you get 30% of the vote you get as close as possible to 30% of the electors) we would strike the best balance. Small states would still enjoy a slight proportional advantage; they would still be far weaker than large states, but it would be mitigated. In this way, presidential candidates would still need to appeal to rural as well as urban, and small-state as well as big-state, concerns. But the electoral results of a presidential election would look very similar to the popular results.

Subject: RE: BS: Supreme Court and Electoral College
From: beardedbruce
Date: 21 Jul 04 - 04:52 PM

Nerd,

Excellent point in your post. I agree with you on this. The states have the right to appoint electors proportioantly, but choose not to. I am not sure if a federal laww mandating this would be considered legal under the present Constitution, but an amendment to allow that law would be far better than throwing open the whole Constitution to change, which is what a Constitutional Convention would do.


8-{E

Subject: RE: BS: Supreme Court and Electoral College
From: Rabbi-Sol
Date: 21 Jul 04 - 04:57 PM

A law could be struck down by the Supreme Court (as in 5 to 4). A Constitutional ammendment can not. SOL ZELLER

Subject: RE: BS: Supreme Court and Electoral College
From: Nerd
Date: 21 Jul 04 - 06:40 PM

What you say is not true, Rabbi Sol. A law cannot be "struck down" by the Supreme Court. The Supreme Court could find a loophole in the law, or judge whether a certain situation was or was not in violation of the law, and in certain cases they can declare a law unconstitutional, but they can't just strike it down because they don't like it. If the law is written clearly enough, it would be unlikely for the composition of the Supreme Court to have any effect.

Also, remember that if the law were passed, and after an election but before the results were finalized the SC suddenly decided the law was unconstitutional, that could quite possibly precipitate a constitutional crisis. It would be difficult to argue that court was doing anything other than meddling in an election. Since it is not clear which party the new law would favor, it is unlikely they would declare it unconstitutional in advance of an election, unless it actually is unconstitutional.

A law could be vetoed by the President. But again it's not clear if such a law would help one side or the other in the next election, so there would be little reason for a sitting president to veto it. In any case, it's not conceivable that such a law could make it through the legislative process by the next election, I think, so this is a long term issue.

As for an amendment to the constitution, it's difficult to imagine this will happen. The problem is that an amendment to the constitution, whether it goes by the single amendment route or the convention route, must be ratified by three quarters of the state legislatures. The whole reason we are in this position is because this is the way forty-eight out of fifty state legislatures want it (in theory, the party in power in the state legislature believes it has the best chance to win the state in a presidential election, so whichever party is in power feels the "all or nothing" system and the electoral college benefits them at that moment).

BeardedBruce is right that a federal law such as I've described is probably itself unconstitutional. And a constitutional amendment to make it legal puts us in the same boat as any other constitutional amendment on this: as currently constituted, the legislatures will not pass it.

It would appear our best chance for fairer elections is for state legislatures to stop hogging the power. And the way to achieve that is to influence the legislatures with our votes, voices and donations. It's a pretty good argument for local as well as national involvement on the part of voters.

Subject: RE: BS: Supreme Court and Electoral College
From: DougR
Date: 21 Jul 04 - 07:23 PM

Kevin: you are hereby challenged to prove that George W. Bush was NOT elected president of the United States in 2000. I'm not interested in opinions. Just facts if you please. I thank you.

DougR

Subject: RE: BS: Supreme Court and Electoral College
From: IvanB
Date: 21 Jul 04 - 08:53 PM

DougR, what makes you think the belief that Bush WAS elected president in 2000 is any more provable than the belief that he WASN'T? Both views are based on opinion. Certainly there are facts to be had, but either camp can interpret those facts to its own end. In the end, it's all a moot point - Shrub is acting with the full authority of the position whether or not I accept his right to do so, and nothing I might think, say or do will make a tinker's dam worth of difference in that fact.

Subject: RE: BS: Supreme Court and Electoral College
From: IvanB
Date: 21 Jul 04 - 08:54 PM

At least until this fall.

Subject: RE: BS: Supreme Court and Electoral College
From: GUEST,Larry K
Date: 22 Jul 04 - 03:47 PM

It seems to me that with todays technoligy, we should be able to vote on line and 10 seconds after the polls close we would have an absolute winner with no recounts necessary.   I guess, they would worry about virus or computer tampering.   It just seem so archaic the way we count the ballots.

If we did away with the electoral college candidates would never go to 20 of the states and pay no attention to them.    I don't know if that is a good thing or a bad thing.   (do you really want Kerry or Bush in your state tying up traffic)

We do not live in a democracy.   We live in a Republic.   (and to the Republic for which it stands) In a democracy we would have town halls on every issue.   Instead, we elect politicians who represent us. (remember an honest politician is one who stays bought) The electoral college is similar to a republic where the delegates vote for us.

If you are going to criticize Scalia, you also have to criticize Breyer, Douglas, and Ginsberg.   In court, Breyer refererred to the Gore side as "us" and than caught himnself and revised his statement.   I think the partisanship by the Florida Supreme Court and those three was more shameful than anything done by Scalia.

Subject: RE: BS: Supreme Court and Electoral College
From: Bev and Jerry
Date: 22 Jul 04 - 04:30 PM

Really, Larry?

How about the fact that Scalia went to dinner at the White House the Sunday after the inaugeration?

How about the fact that Bush appointed Scalia's son, Eugene, to a high level government job in the Department of Labor?

How about the fact that, during the campaign, Bush said that the two best justices on the supreme court were Scalia and Thomas?

How about this Scalia gem: "The choice for the judge who believes the death penalty is immoral is resignation"?

Or this one: Any Catholic jurist... would have to resign."

And, by the way, he opposes abortion rights, affirmative action, workers' rights and gays.

But he supports duck hunting at least with the right company.

Bev and Jerry

Subject: RE: BS: Supreme Court and Electoral College
From: beardedbruce
Date: 22 Jul 04 - 04:33 PM

Context for those quotes, please.

Subject: RE: BS: Supreme Court and Electoral College
From: Bev and Jerry
Date: 23 Jul 04 - 01:10 AM

Don't have the context. They were quoted by Molly Ivins in her book "Bushwacked".

Bev and Jerry

Subject: RE: BS: Supreme Court and Electoral College
From: GUEST,steve
Date: 26 Jul 04 - 01:30 PM

Electoral College is good, it requires the candidates to pander to the middle, which is hte way it should be. Beyond that, they actually have to visit the moderate states. No campaigning in Utah or Hawaii, that's a waste of time. Visit Ohio and Tennessee and Missouri and Iowa, that's where the election will be won.

Good link for an electoral college map:

Electoral Map

Subject: RE: BS: Supreme Court and Electoral College
From: Bev and Jerry
Date: 26 Jul 04 - 03:49 PM

Steve:

Great site.

Bev and Jerry

Subject: RE: BS: Supreme Court and Electoral College
From: Terry Allan Hall
Date: 26 Jul 04 - 05:02 PM

Absolute agreement, Rabbi Zeller...the Electoral College has long since outlived it's usefulness.