Balkinization  

Thursday, September 13, 2012

Speaking of the Unwritten Unwritten Constitution

Gerard N. Magliocca

There is an AP story (hat tip to Jonathan Adler) stating that three GOP presidential electors who are sympathetic to Ron Paul are threatening to not vote for Mitt Romney.  (They are in Iowa and Nevada, which are tossup states.)  Now let's assume that Romney wins 271-267 and carries the states with these faithless electors.  If these electors do not vote for Romney, they could throw the election to President Obama or (by abstaining) into the House of Representatives.

There is, of course, nothing unconstitutional about this in the sense that no court can countermand the vote of a lawful presidential elector.  It's fair to say, though, that a lot of people would think that this was unconstitutional in that it violates longstanding practice. 

Comments:

Have these states enacted the Uniform Faithless Elector Act?
 

I may be wrong, but I think that only bars voting for somebody else, not abstaining. Can a court force an elector to vote?
 

I don't know, but in response to the Kerry as Sec of State hypo, I was going to make a quip about considering the possibility that Obama could be elected President and Ryan Vice-President. And now here is a way it could happen.

Plus which Ryan might decide to test theory that he could serve as VP and a Member of Congress at the same time.
 

Are Gerard and mls channeling Abbott & Costello's "Who's on First?"
 

Being unfaithful is what electors exist for, in much the same sense jurors exist to vote to acquit. In both instances they're there so that they can do as they weren't told to, if the situation demands. Electors were created because, at the time the Constitution was written, travel times were such that important information might come out about a candidate after the choice was made. This is, thus, about as far from unconstitutional as it gets.

Sucks if you're Romney, of course, but then, Romney didn't *have* to cheat Paul and the Tea party out of the delegates they'd won following the rules.
 

So is Brett suggesting doing away with juries and the electoral college? His:

"This is, thus, about as far from unconstitutional as it gets."

is somewhat confusing, at least this early in the day.

 

You're easily confused, I guess.

Electors exist to be "unfaithful". Even in the 1800's, it would have been possible to just mail in the votes, instead of sending people to vote. Why didn't they?

Because the electors were supposed to exercise their own judgement if it came to it. They were delegates, representatives of their state, not just colored stones dropped in a jar. It was contemplated that they might vote for somebody else, that's why they're *people*.

This being the purpose of electors, their doing this can not be "unconstitutional". It might be illegal under state law, of course. Which raises the question of whether that state law is actually binding, or itself constitutional. A tough call, I think.

It's rather similar to the way some people get into a tizzy when jurors nullify. But jurors exist to nullify, you can look at the historical cases like the William Penn trial, which are extolled as the glory of the jury system, and they are nullification.

Similarly, I suppose you could have a state law prohibiting jurors from nullifying. Nothing in the Constitution explicitly prohibits this. But it's understood that nullification is part of the jury system, part of what it is meant by having a jury trial.

"Faithless" electors are part of what it means to have an electoral college. Fine, get rid of it. But until we do, this is what it's for.
 

I agree with Brett on this. The basic idea of the EC was that the electors would make an informed decision. It hasn't worked that way, of course, but the intent was there. I'd say the result would be shocking but not unconsitutional.
 

I think some of you are missing Mr. Magliocca's point in arguing that this would not violate the written Constitution. Yes the written Constitution allows and likely even contemplates this, but Mr. Magliocca's point is that enough electors voting against or refusing to vote for their declared candidate would strike many people as not only wrong but downright 'unconstitutional' because of tradition and expectations.
 

So, Brett, then at least you are in favor of doing away with the electoral college as presently devised? As for jury nullification, that is indeed against the law in many states (except in Dixie, perhaps). Perhaps Brett has some reservations on certain aspects of originalism.

Yes, Brett, I am easily confused by your obtuseness and efforts at nuance. Speak directly like an engineer.
 

Well, to the extent people would "think" it is unconstitutional, that's probably true. The people in effect would think long practice, including as expressed in laws binding electors, has an "unwritten constitution" flavor.

Brett is correct as to the original understanding but it is unclear if the text itself requires that -- he notes himself state laws that bind electors might or might not be unconstitutional. If electors clearly have discretion, it really shouldn't be a close question.

If a state can bind electors, it is not totally crazy to suggest tradition of the sort referenced in Prof. Amar's new book might too. Or, so many people might think.

Push comes to shove, like a D.C. delegate who abstained in '04, I don't think they would do so if their votes were the margin of victory. If it is not, go right ahead. And, if the votes don't matter and the state have a faithless elector law, it would be an interesting challenge.

(they probably would lose per a 1950s precedent but who knows]
 

"If a state can bind electors, it is not totally crazy to suggest tradition of the sort referenced in Prof. Amar's new book might too. Or, so many people might think."

Well, we're talking state law here, not tradition. Which has the advantage of being, you know, law.

As for laws banning jury nulification, they exist. Plenty of unconstitutional laws exist. Are they enforcible? Not so I understand it.

Shag, I am indeed in favor of getting rid of the Electoral college. You seem to have this misconception about originalism, that it somehow means you think the original meaning is *good*. No, it just means you think it's the *meaning*, until you change the words.

Originalism, unlike living constitutionalism, sees determining meaning as something apart from whether you think that meaning a good thing. It is the belief that you should evaluate the meaning of laws in a disinterested fashion, rather than using motivated reasoning.

Plenty of things about the Constitution strike me as bad. The appropriate response is amendment, not lying about what it means.
 

"Well, we're talking state law here, not tradition. Which has the advantage of being, you know, law."

Our system recognizes a form of common law that is partially defined by looking at certain kinds of custom and tradition. This includes when defining constitutional law.

Your position on the subject is on record, but your analysis of what "law" means is open to question.
 

Shag, I am indeed in favor of getting rid of the Electoral college. You seem to have this misconception about originalism, that it somehow means you think the original meaning is *good*. No, it just means you think it's the *meaning*, until you change the words.Buy Windows 7 Key
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http://www.pbs.org/newshour/rundown/2012/09/conversation-justice-david-souter.html


9/17 was not just Constitution Day, but also Souter's birthday. So, quite appropriate!

A Prof. Levinson comment:

"I would like to think that enough examples of non-compromise are going to start people thinking that there must be a better way to try to govern the country."
 

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I don't know, but in response to the Kerry as Sec of State hypo, I was going to make a quip about considering the possibility that Obama could be elected President and Ryan Vice-President. And now here is a way it could happen.

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Brett is correct as to the original understanding but it is unclear if the text itself requires that -- he notes himself state laws that bind electors might or might not be unconstitutional. If electors clearly have discretion, it really shouldn't be a close question.

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