Tuesday, July 27, 2004


In case you're worried about November . . . (revisited)

I guess this is my day to play catch-up. I've been meaning to write about this ever since the article appeared, but with the Democratic Convention in the news, there can't be a better time.

A month ago I wrote about how the Bushies might throw the election and boiled it down to four tactics:

But I warned that I couldn't "match wits with the Rove-Cheney-Rumsfeld alliance for pure deviousness." And sure enough, Peter M. Shane, an Ohio law professor, has revealed a fifth possibility, which I'll christen the "Tom Delay ploy."

You may remember Delay's unheard-of tactic of getting the Texas state legislature to reapportion the voting districts after a Federal court had already conducted a post-census reapportionment. And the Supreme Court upheld it.

Well, Professor Shane may have provided him with fresh fodder. Here's how it goes.

The premise is based on the Supreme Court's 2000 decision in 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."

Professor Shane notes that in states where one party or the other controls the legislature and governorship, there is nothing to prevent the state legislature from commandeering the state's electors and directing them to vote for the candidate of that party, regardless of the popular vote.

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.

What's to prevent it from happening? Professor Shane seems unable to propose any legal obstacles but instead offers "hope"--hope that state legislatures will be deterred by the "outrage factor" and by "common sense."

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.

Have a nice day.

Related post: In case you're worried about the November election . . .

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