Balkinization: Constitutional minefields (continued)

Constitutional minefields (continued)

Sandy Levinson

The preceding discussion about a John McCain victory (followed by his untimely demise) didn't address the circumstances of his presumed victory. As is obvious, it is possible that it would be an electoral, but not popular vote, victory. So now add to the brew the possibility that Obama beats McCain in the popular vote but loses to him by a very few electoral votes (perhaps because of the disproportionate power given small states like Alaska and Wyoming: recall that Bush won nine votes in the two Dakota and Wyoming, while Al Gore was winning only 5 votes by carrying New Mexico, which had a population relatively equal to the collective population of those three states). And, as in previous scenarios, McCain dies before the electoral votes are tallied and the House has to pick the president. Assume also that the House will be Democratic and that a majority of the state delegations will be Democratic. So why shouldn't they go ahead a pick Obama, who, after all, is the choice of the plurality, perhaps even of a majority, of Amerian voters, under this scenario? The answer, presumably, is that Democrats, "putting country first," should honor an indefensible electoral college scheme and make possible the ascension to office of someone patently incompetent to be President "on day one." (I know that some on this list would say the same thing about Obama, but, needless to say, I respectfully disagree. He does, after all, know something about the United States as a whole and about the world, two things about which there is no similar evidence with regard to the provincial Gov. Palin.) But there is still another potential scenario:

While we're speculating about grim possibilities, we might also imagine that McCain simply suffers a stroke, perhaps like Woodrow Wilson in October, 1919 (though, of couse, the egomaniacal Wilson stayed in office while his wife in effect exercised the prerogatives of office). So under this scenario, the electoral votes cast for him in December could indeed be counted for him in January, though with the result that the 25th Amendment would immediately be invoked on the 20th and Sarah Palin would take over as president. Query: Who would name people to serve in the cabinet prior to that moment, since it's conceivable that the stricken McCain could recover and wish to reassert his authority.

All of these are admittedly unlikely, but so are Grade 5 hurricanes or terrorist attacks on nuclear facilities. Most people think it's prudent at least to talk about such possibilities, howver unlikely, andn to construct defenses against them. But not where the Constitution is concerned, apparently.....

Posted 10:07 AM by Sandy Levinson [link]

Comments:

You still haven't explained why this scenario (the electoral winner's death prior to the counting of the votes) throws the election to the House of Representatives, rather than being governed by Section 3 of the 20th Amendment.

# posted by

mls : 12:06 PM

The problem is: how do we change it?

I actually think there might be a way. I'm sure you're familiar with the National Popular Vote initiative.

It's a simple idea: a consortium of states with 270+ votes in the electoral college commit all of their electors to the winner of the national popular vote.

My idea is this: instead of committing to the candidate who wons the national vote, the consortimum commits to the winner of the popular vote in ONLY the states forming the consortium. That would shut the other states out of the election entirely.

It would then be possible to offer the non-consortium states a deal: a constituional amendment to eliminate the electoral college, give DC represntation, AND reform the apportionment of Senate seats among the states.

In short: make the small states an offer they can't refuse if they want to have any say in who the President is. The idea is a two-edged sword of course, but then that's also true of the status quo.

And on the other hand, if all these disgraceful hypocrites who drool endlessly about "freedom" and "democracy" actually believed in freedom and democracy, one might suppose they'd just get real about it and agree to make some much needed changes.... Not I'm holding breath or anything.

# posted by

Charles Gittings : 12:08 PM

Although I have qualms about the "Fair Vote" initiative because it would continue to result in the election of presidents who have not demonstrated majority (as opposed to plurality) support, I find Charles's suggestion extremely interesting inasmuch as it is a mechanism for forcing a more fundamental debate about the Constitution.

# posted by

Sandy Levinson : 1:42 PM

Senators have to be persons just as much as the president, but John Ashcroft lost his reelection bid to a candidate who died weeks before the election. I don't remember anyone deciding that Ashcroft could take his senate seat because the person who won the election was dead on election day and Ashcroft got the most votes of any live candidate. The seat was simply regarded as vacant and was filled in the same way it would have been had the senator elect died in office.

# posted by

HowardGilbert : 1:58 PM

I hope the House would vote for the popular vote winner under such circumstances. And I love Charles Gittings' suggestion.

# posted by

Mark Field : 2:19 PM

"an indefensible electoral college scheme"

You know, "indefensible" doesn't mean, "I wouldn't defend it". You really do have a difficult time with the concept of people disagreeing with you, don't you?

# posted by

Brett : 3:43 PM

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# posted by

Charles Gittings : 4:43 PM

"You really do have a difficult time with the concept of people disagreeing with you, don't you?"

When folks claim that 1 + 1 = 3 it's not because there's a disagreement going on.

# posted by

Charles Gittings : 4:44 PM

No, I don't have problems with people disagreeing with me, and Brett is probably right that I would have better said "a scheme that I find indefensible even when presented with pro-electoral college arguments presented by serious and thoughtful scholars like Dan Lowenstein and John McGinnis," with whom I conducted a debate published in the electronic version of the Penn Law Review.

# posted by

Sandy Levinson : 4:46 PM

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# posted by

Mourad : 4:50 PM

Perhaps a briefing paper for the (hopefully) incoming Obama-Biden administration would be in order.

It is well known that Obama lectured in constitutional law - what I had not realised was that Senator Biden has also been teaching a class on "Selected Topics in Constitutional Law" since 1991 at Widener University School of Law - and took a class today: Biden goes Back to School.

At least the Democratic nominees would understand the issues. I suspect that if such a paper were sent to Gov Palin she'd want to refer it to a committee of fundamentalist creationist, pro-life, rapture ready "pastors" for their opinion and guidance before responding. A bit like the ayatollahs on the Council of Guardians in Iran.

Strange how some Republicans can be so enamoured of fundamentalist fringe theology when considering political issues in the USA yet oppose an essentially similar extremist theological approach to political issues in Iran.

# posted by

Mourad : 4:55 PM

"When folks claim that 1 + 1 = 3 it's not because there's a disagreement going on."

Anybody who thinks Sandy's opinions as to the deficiencies of our constitution are on a par with mathematical axioms is seriously wacked. Much of this is barely above the level of matters of taste.

# posted by

Brett : 5:04 PM

Well I got news for you Brett: logic is logic and fallacies are fallacies, regardless of whether or not a given proposition is concerned with quantity or quality -- and it's completely obvious that the electoral college is both egregiously undemocratic and hopelessly defective.

Indeed, I just gave you a conclusive demonstration of that fact, not that you bothered to actually think about what was said or anything. If you really think there's some reasonable basis for disagreement here, you're free to state it, but you haven't even tried; and notwithstanding Sandy's regard for his colleagues who differ on the point, I don't think it's even possible -- for the very reason I stated above.

QED.

# posted by

Charles Gittings : 8:10 PM

Again, it's a fascinating question, but it doesn't even become possibly relevant unless McCain wins.

I also have a fun question about what happens if you flip a coin ten times and it comes up heads all ten times. But I'm unlikely to have a test case any time soon.

# posted by

jpk : 10:23 PM

As a practical matter, it would be next to impossible for someone to govern who owed his office to his own party having substituted his victory for the VP on his opponent's ticket. This would appear to much of the country as a coup. It wouldn't have the veneer of a non-partisan Supreme Court acting as a neutral (please save your posts about whether they are truly non-partisan; I am just talking about perceptions) and it would appear as though they (the Dems) seized upon a tragedy to grab power for their guy. Like it or not, the constitution does say that the electoral vote is determinative for the entire ticket, not just the top of it.

Certainly, if Obama succeeded in supplanting Palin as president, it would be impossible for him to govern in any sort of post-partisan or bipartisan manner. Also, whether or not it succeeded, the attempt alone would likely cause a backlash, even among independents and moderate Dems, that would result in the Dems losing their majority two years later.

For illustrative purposes, consider what would happen if Congress controlled by the same party removed their standard-bearer (or their designated successor) and picked someone else. At least here, you don't have the suggestion that the losing party is trying to snatch victory through legal maneuvers. So in your example, Palin is rejected by a Republican-controlled Congress in favor of Newt Gingrich, who clearly has the experience needed to be president having been Speaker for a period of time. I don't think this would fly either because we don't live in a parliamentary system and it is the voters who get to pick office holders, not the party apparatus. Voters may trust Palin but not Gingrich. But if you add to this hypo the fact that it is the other party making the substitution, expect the reaction to be riots.

The problem you have with many of the assumptions underlying your questions, is that by electing McCain, voters would be endorsing Palin as qualified to succeed him. That makes her qualified in any relevant sense (assuming she meets the legal requirements to be VP, such as being natural born), and Congress has no power to undermine that decision. Likewise, a GOP-controlled Congress could not maneuver to avoid an Obama administration by claiming he is too inexperienced or suggesting, say that his known associations smack of treason or sedition or something else incompatible with being president. By electing him president, the voters are saying that they disagree.

# posted by

Zachary : 3:06 AM