Article II

[Tom Grey]

Sandy Levinson raised the issue whether suffrage, even for presidential
electors, might be a privilege or immunity of national citizenship under
the 14th Amendment, despite the grant of legislative discretion in Article
II. Pam Karlan then pointed the Reynolds-Kramer line of cases as an already
established doctrinal basis to the same effect, possibly subjecting to
"strict scrutiny" any attempt by a state legislature to reclaim its
original power to choose the presidential electors on its own, independent
of any popular vote. Mark Scarberry responded that the "plain terms" of Art
II would stand in the way of her point, and implicitly of Sandy's less
doctrinal suggestion too. And indeed it is common for even us "living
constitutionalists" to exempt the explicit procedures set out in the
Constitution from the process of evolutionary development, for reasons of
the sort Mike McConnell has given. But two points on that:

1) As has been conceded by everyone including Mark Scarberry, the state
legislature's power to decide on the method of choosing presidential
electors under Art II, Sec. 1 is subject to the 14th Amendment. But the
14th Amendment is the (formal) source of the treatment of the vote as an
Equal Protection Clause "fundamental interest" in the Reynolds-Kramer line.

2) Further, as Tony Lewis pointed out in his column this morning, the 14th
Amendment does explicitly contemplate a popular vote for presidential
electors. Its Section 2 provides for reduction of states' congressional
representation to the extent they abridge  "the right to vote at any
election for the choice of electors for President and Vice-President of the
United States." (Of course the existence of that same Section 2 provided an
argument against the Reynolds-Kramer doctrine, but that issue seems to have
been resolved for now.)


-- Tom Grey     Stanford Law School    tgrey at law.stanford.edu