According to CNN, seven states--Wisconsn, Minnesota, Michigan, Pennsylvania, New York, Connecticut, and Mississippi, make it possible for absentee voters to change their vote prior to the actual counting of the vote. Apparently, Wisconsin allows three bites of the apple, so even a second absentee ballot can be invalidated by showing up on election day and voting. Not surprisingly, it's not easy to do, but the point is that it is allowed.
So an important question is whether this is a good idea. Some political theorists, including Dennis Thompson, have criticized early voting--a system much used in Texas--precisely because it means that voters will be casting their votes on the basis of potentially important different pools of information. What if, for example, it emerges only in the final days of a campaign that one's hitherto favorite candidate is in fact a child molester or simply turns out to support a policy that you find execrable? Later voters can take advantage of this important information, whereas in most states, but not the seven named above, you're stuck. Is there anything positive to be said for the finality of early voting? As someone who has frequently taken advantage of early voting, I disagree with my good friend Dennis and believe that it has some genuine value. But I do agree with him that there are significant costs as well, and the seven states provide a solution to the most obvious potential cost. (Dennis also finds value in the entire ritual of "election day" that brings together Americans (or Californians or ....) together at the polling booth, where their equality is signified in part by the fact that everyone has to wait in line, etc. I agree that has value, but for me the value of early voting outweighs it, especially since most voters still wait to vote on the "official" day. Of course, as in Oregon, there are no longer any waiting lines because all votes are by mail, which raises other issues well beyond this posting.
So I wonder if the devotees of non-rescission believe the seven states are in error, that one should get a single opportunity to mark one's ballot and that no changes of mind are permissible. One response is to engage in a basically metaphysical argument that, whereas for regular elections, we're talking about real individuals, in the ratification process we're talking about some mysterious entity called "states" that have a collective mind altogether independent of the representatives who comprise the relevant legislative institutions (assuming, of course, that Congress has designated legislatures as the vehicle for ratification). The recission debate gets more complicated if, as with, so far uniquely, with the original Constitution and then the 21st Amendment, the method of ratification is through an elected "convention." Is it relevant that in both cases the ratification process was completed in less than a year (though Rhode Island and North Carolina got around to ratifying later, after George Washington and the rest of the new constitutional order was up and running? The rescission process as a practical matter assumes the common modern reality of an extended ratification period, with, all importantly, the possibility of intervening elections bringing to office representatives who presumably reflect a public opinion that earlier ratification was a bad idea.
I'm in the unusual position of agreeing with Brett and disagreeing with Mark Field, but c'est la vie. I still see no good arguments against allowing states to rescind ratification of proposed amendments prior to the declaration of final ratification. I'm absolutely confident of that position with regard to constitutional design. I think that any modern constitutional designer would be run the other way from the U.S. Constitution that allows extended, perhaps even eternal, time for consideration of proposed amendments and disallows any changes of mind during the ratification process. The fact that the issue may not be clear, as an interpretive matter, only underscores the defects of a Constitution that fails to provide clear answers to certain very important questions and therefore generates thoroughly motivated "interpretations" that generally serve one's own short-run political preferences, as with the continuing vitality of the ERA proposal.
"What if, for example, it emerges only in the final days of a campaign that one's hitherto favorite candidate is in fact a child molester"
ReplyDeleteOr if the candidate brags about it up front: https://www.factcheck.org/2018/06/pedophile-advocate-but-not-gop-candidate/
Perhaps the better example would be a candidate who shoots someone on Fifth Avenue....
On the main point -- rescission of a vote -- I'm truly shocked that some states allow for changing a submitted ballot. That said, I don't think that impacts my reliance argument because those votes aren't public, so nobody can rely on them.
I still don't think rescission is a good idea for reasons I've set out. I'd argue that changing a "yes" to a "no" presents an a fortiori case because states don't have to vote on Constitutional amendments at all -- every non-vote is, in practice, a vote against ratification.
Here's another thought. Some states have submitted very late ratifications of an amendment long after the amendment has been adopted. What happens to those, and what effect do they have (if any)?
If SL disagrees with mine & MF's analysis, though it's not really clear why we are wrong, so be it. But, the fact a few states allow early voters to change their votes one to three times until the final vote is submitted on Election Day is of limited help here.
ReplyDeletePersonally, I'm wary of early voting, at least something like a month before. I prefer something like a three day voting period. Absentee should be limited and in today's world, can be done in many cases by Skype or some such method. But, I put that aside.
Until the final vote -- in each individual state -- state legislators can change their mind. Likewise, in the House or Senate when voting for a bill. But, once the U.S. House or Senate or state legislature in the amendment process votes, it is final. This is the rule. Maybe, it's not a good one. Maybe, the House should be able to take back its passage before the Senate votes. But, that isn't the rule now.
Mark Field just voted in CA & which is not one of those states. I was not aware of some ability to change my vote but when I vote in a federal primary election this month in NY, I will do so in person. I will not have the ability the day after Election Day to change my vote. The ability to change an early ballot doesn't alter this.
Take PA. An early voter might change their mind. The vote is only final on Election Day. This allows them -- like a single legislator during a House bill vote -- a chance to change their mind before that specific election is over: http://fox43.com/2016/10/18/ask-evan-can-i-change-my-absentee-ballot-once-its-mailed/
The issue seems fairly "clear" [e.g., the text does seem to say states have the power to ratify without any power to de-ratify] actually but after 150 or more years, I do think there is a heavy burden on the other side, especially if we are going to change rules in the middle of the process.
Anyway, for the ERA is doesn't even matter! It should be assumed to be defeated. In the future, it doesn't matter too much since even now Congress is held to be the final judge on ratification. By that light, it can apparently even decide recissions should count. I do think it is a bad idea to have an open-ended ratification process. A limited fixed time for the amendment, especially when the language will mean something significantly different years later (like here) is the best policy.
"Here's another thought. Some states have submitted very late ratifications of an amendment long after the amendment has been adopted. What happens to those, and what effect do they have (if any)?"
ReplyDeleteI don't think they're of any consequence at all, unless it should turn out that an earlier ratification vote was fraudulent. (Unfortunately, the enrolled bill doctrine makes that possible...) But counting them does no harm.
I'm generally hostile to the idea of early voting, due to the unequal information issue, among other reasons. But, if you're going to have early voting, it makes a great deal of sense to allow a vote cast in person on election day to override the early vote: After all, the earlier vote might very well have been absentee ballot fraud, or, given the lack of ballot secrecy for absentee ballots, coerced!
Perhaps our strange constitutional bedfellows (Sandy and Brett) in their quests for a second constitutional convention might also agree upon requiring "plain meaning" text for such a convention. Perhaps each could take a separate crack at, a "plain meaning" text of the amendment process, or the individual right to keep and bear arms. Then we could make a comparison of each of their potentially extreme views.
ReplyDeleteSandy: So I wonder if the devotees of non-rescission believe the seven states are in error, that one should get a single opportunity to mark one's ballot and that no changes of mind are permissible.
ReplyDeleteFor the purposes of interpreting Article V, I would note these state laws expressly grant this rescission power to voters, while our disputed constitutional article does not.
As a matter of policy, allowing one or more ballot rescissions serves no useful purpose and is instead a waste of resources and fertile ground for ballot challenges.
Just make up your mind before marking the damned ballot. I left my 2016 ballot unmarked for weeks while I struggled with whether to cast a vote for the libertarian out of principle or for the boorish real estate mogul running the fascist campaign the GOP had nominated (over my vote) purely to stop the felon and corrupt influence peddler the Democrats nominated. In the end, I marked the ballot and lived with my choice.
I still see no good arguments against allowing states to rescind ratification of proposed amendments prior to the declaration of final ratification.
One of your concerns about the Article V process was it made amending the Constitution inordinately difficult, a position with which I agree. Why then do you want to make the process even more difficult by allowing states to rescind ratification votes?
Like this voter, states need to take the necessary time to consider the implications of the proposed amendment (an argument against congressional time limits), make a final decision and live with it.
I have, half in jest, proposed a "Simon says" amendment: Each of the 10 amendments in the Bill of Rights would be amended to begin, "Simon says" just to underscore that they mean what they say. "Simon says Congress shall make no law..."
ReplyDeleteSure, plain language is always best. But, of course, the very purpose of the constitutional convention is to propose the amendments itself. I'd have no say unless I became a delegate. Which I'd love, but is extraordinarily unlikely.
There has been great debate over the language that seems clear to each side in various cases. Hamilton v. Madison, who wrote the Federalist Papers together, was an early example.
ReplyDeleteAs to Brett being a delegate, didn't SL propose some sort of general lottery there? Shag can be the Ben Franklin. Brett can be sort of the Elbridge Gerry type. Perhaps, Mark Field can be the James Madison, academic about all the information and principles. I will stay agnostic about my role. I can't sing well, so Hamilton is out.
This talk about "plain meaning" seems like something out of Rumpole of the Bailey and one of the caricature judges with their maxims. Welcome Sandy Levinson opening up comments though the subject does seem to be getting repetitive.
Call my agent. You and he should do lunch.
ReplyDeleteIf there were to be a second constitutional convention, I assume its proceedings would not be in secret. Some may disagree, but make the assumption. Via the traditional media in conjunction with the Internet and its social media, I would expect that the language being discussed at such a convention would get critiqued and get suggestions for changes. Unlike 1787 in Philadelphia, a diverse public would get involved. Current intent, understanding, meaning would come into play. Should the meaning of the product of such a convention be understood by a broad segment of the public? This is where "plain meaning" would come into play. "Plain meaning" might result in a product looking more like a code. Consider the recent discussions at this Blog on the pardon power. What would "plain meaning" call for to address issues raised in such discussions? Even more complex would be responding with "plain meaning" to the discussions at this Blog on Article V. One purpose of "plain meaning" might be to reflect original public meaning in case originalism is raised in the future, as perhaps "plain meaning" today may in the future lead to living constitutionalism.
ReplyDeleteAnyway, Mark's comment reminds me I have to leave for the Thursday liberals lunch. Chow for now. But I'll be back after I chow down.
This comment has been removed by the author.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteShag: Should the meaning of the product of such a convention be understood by a broad segment of the public?
ReplyDeleteInteresting question.
An amendment (and all legal writing) should employ simple and categorical language and, whenever possible, avoid legal terms or art which are not in common usage. However, opponents of a law can be relied upon to misrepresent even the plainest language to the people. See initiative voter guides, press coverage and op-eds. Can your average disengaged American understand a proposed amendment under those conditions?
The primary players in a convention of the states are not the voters, however, but rather the delegates proposing amendments and the state legislators who participate in the ratification votes.
All the state applications for an Article V convention seek to re-limit our progressive government and the progressive state will not tolerate challenges to its power. Currently, the call for a convention is running under the radar of most of the progressive ruling class. However, if this movement gets close to required number of state applications, the Democrats and their media, along with more than a few progressive RINOs, will employ a full court press against any remaining legislatures applying for the convention. If the convention is called, they will do everything in their power, fair and foul, to pressure the delegates and the legislatures to derail the amendments for which they applied.
For this reason, the convention should be held in private and, if possible, the delegates sequestered. However, I doubt that will prevent delegates who oppose various amendments from selectively leaking real and fictional drafts to the Democrat media to attack.
SPAM is transparent in his reasoning for a private convention to avoid transparency, including sequester of delegates, that could accommodate a rigged system by conservative states. Perhaps SPAM would require NDAs to bind the silence of the delegates. No cell phones? How well did that work in 1787 for the public? recall that the 1787 Constitution did not have a bill of rights, especially the 1st A and 14th A.
ReplyDeleteShag:
ReplyDeleteThe proposed Constitution was released to tge states for ratification, published to the public, thoroghly debated and then amended. The public was served very well,
There was no transparency regarding the 1787 Convention until after its deliberations were concluded. The delegates had a mission to address certain issues concerning the Articles of Confederation and suggest amendments that would require the consent of all of the states. It was not until after the Convention that it was learned that the delegates had contravened that unanimity requirement. Had the proceedings been public, there could have been public reaction regarding the unanimity requirement as well as other provisions.
ReplyDeleteBy the Bybee [expletives deleted, despite Gina], the 1787 Constitution presented to the ratifiers were not amended. The 1787 Constitution was first ratified and subsequently amended in the manner provided by its Article V.
A second constitutional convention should have the same transparency as Congress in passing laws.
This comment has been removed by the author.
ReplyDeleteShag:
ReplyDeleteLegislation is negotiated and drafted behind closed doors to allow representatives to be honest and compromise with one another and not be forced to perform for the media.
The public debates over the proposed legislation come afterward.
Applying this principle to a constitutional convention is especially important because the delegates will be negotiating amendment language with their home legislative leadership so the final proposed amendment(s) likely have the necessary support for ratification.
My question is, if the Blue state delegates leak the proceedings to the Democrat media in an attempt to derail the process, will the Red state delegates shut them out of the process?
Yes, our cold civil war has become that bad.
Are congressional committee procedures all in secret? Don't they hold public hearings on matters pending before them? Are their agendas made public in advance of hearings? Doesn't C-SPAN and other media cover such proceedings? The full House and Senate are covered by C-SPAN and other media as proposed legislation is debated.
ReplyDeleteAs to SPAM's question, his suggested answer would seem to be the rural Bundy form of insurrection that appeals to libertarians of SPAM's ilk, that's what has become that bad.
But note that in the third paragraph of SPAM's 8:53 AM comment, SPAM would permit delegates in his secret convention to negotiate:
" ... amendment language with their home legislative leadership so the final proposed amendment(s) likely have the necessary support for ratification."
presumably in secret. SPAM is so undemocratic.
Shag:
ReplyDeleteLegislative committee proceedings review previously drafted and filed bills. This is part of the public debate.
As for the proceedings of a future convention of states, I am borrowing the rules under which the 1787 convention operated.
Fans of Married ... with Children (Duchess Meghan's father worked behind the scenes on the show) know that the Bundy family is cursed. OTOH, a pitcher named Bundy did win the other day. It was against the Mets, so perhaps an asterisk.
ReplyDeleteSPAM is " ... borrowing the rules under which the 1787 convention operated" with undemocratic enthusiasm. Sandy has informed us in great detail how that worked out. Those delegates, by the way, could not readily check what they discussed with "their home legislative leadership so the final proposed amendment(s) likely have the necessary support for ratification." Maybe delegates to a second constitutional convention should be required to wear three-cornered hats. (This calls for a chorus of "Mein Hut Er Habt Dreieckern".)
ReplyDeleteShag:
ReplyDeleteThe delegates and their state legislatures did indeed successfully communicate without the benefit of telecommunications.
What precisely is "undemocratic" about debating and voting on a proposed amendment (or legislation) after it is proposed?
Is SPAM suggesting with this:
ReplyDelete"The delegates and their state legislatures did indeed successfully communicate without the benefit of telecommunications."
that this occurred while the 1787 Convention was in progress? Carrier pigeons? Smoke signals? Pony express? After the closed convention, the document was made available for the ratification process pursuant to its Article V. But prior to that, to what extent were there such "successful" communications?
Apparently SPAM doesn't understand the transparency of Congress with its debates open to the public, including floor amendments, and voting, on proposed legislation. That's democratic.
Shag, it's a matter of historical record that at least some of the delegates were corresponding with their state legislatures during the convention, (Despite the demand for secrecy!) and it lasted long enough for several rounds of missives to make the trip.
ReplyDeleteIt happened by ship, which between coastal cities could be quite fast.
Shag:
ReplyDeleteEarly US mail was not much different from the subsequent pony express and, yes, the delegates communicated with their state legislatures during the convention.
Remember, this was a convention of the states and the delegates represented the states. The delegates could not hope to write a completely new constitution, spring it unannounced on the states, and expect 3/4 of the states to approve it. There was a great deal of groundwork laid ahead of time.
Those delegates, by the way, could not readily check what they discussed
ReplyDelete"Readily" is the best best here.
They had an oath of secrecy and historical accounts have stated it was largely enforced, but there were means over the months involved to communicate, especially for the home state Pennsylvania delegation. Didn't just need to be by ship either.
But, especially late in the day, it was a limited communication. Anyway, it's just a tidbit.
SPAM at 12:42 PM:
ReplyDelete"The delegates could not hope to write a completely new constitution, spring it unannounced on the states, and expect 3/4 of the states to approve it. There was a great deal of groundwork laid ahead of time."
Were the delegates directed or authorized "to write a completely new constitution" or were they assigned to amend the Articles in the manner provided in the Articles? Was there "great deal of groundwork laid ahead of time" keeping in mind the records of the Convention's proceedings? Where was that groundwork revealed prior to the Convention? Recall, the Articles called for unanimity under its amendment provision, not 3/4 of the states. Where was this disclosed in the groundwork prior to the Convention?
Joe points to the work "readily" in the statement of mine that both Brett and SPAM ignore. Also, keep in mind the "attendance" records of some of the delegates at the Convention. Joe's "tidbit" is apt.
Shag:
ReplyDeleteBy ahead of time, I am referring to the time when the convention proposed the constitution to the states.
Before the convention, I am sure the state legislatures provided their delegates at minimum with basic positions. I am unaware of any coordination between the states before the convention.
The United States was war ravaged, bankrupt, suffering from a raging stagflationary recession and close to becoming a failed state. No one thought the Articles were working and the delegates went in expecting to make substantial changes. All the initial plans were complete reworking of their confederate national government.
No one claimed the delegates could "readily" communicate back to their states as we understand communications today. However, they did communicate with their states.
In any event, in this day and age why should the procedure/process of the 1787 Convention serve as the model for a second constitutional convention? Beginning with the ratification of the bill of rights in 1791, the 1st A provided certain individual rights that led to making Congress and much of the rest of the federal government more open, transparent and participatory over a greater than 200 year period of time with the benefit of various technologies. It's clear SPAM would like to game the system and Brett may be jumping aboard SPAM's secret second constitutional convention.
ReplyDeleteMark Field just voted in CA & which is not one of those states. I was not aware of some ability to change my vote but when I vote in a federal primary election this month in NY, I will do so in person. I will not have the ability the day after Election Day to change my vote. The ability to change an early ballot doesn't alter this.
ReplyDeleteTake PA. An early voter might change their mind. The vote is only final on Election Day. This allows them -- like a single legislator during a House bill vote -- a chance to change their mind before that specific election is over: http://fox43.com/2016/10/18/ask-evan-can-i-change-my-absentee-ballot-once-its-mailed/
The issue seems fairly "clear" [e.g., the text does seem to say states have the power to ratify without any power to de-ratify] actually but after 150 or more years, I do think there is a heavy burden on the other side, especially if we are going to change rules in the middle of the process.
Anyway, for the ERA is doesn't even matter! It should be assumed to be defeated. In the future, it doesn't matter too much since even now Congress is held to be the final judge on ratification. By that light, it can apparently even decide recissions should count. I do think it is a bad idea to have an open-ended ratification process. A limited fixed time for the amendment, especially when the language will mean something significantly different years later (like here) is the best policy.
i get content