Article II

[Michael McConnell]

Black letter 14th amendment doctrine does not hold that any particular
office must be filled by popular election, but that if a state chooses to
conduct such an election, it may not treat its citizens unequally with
respect to the franchise. It would be politically unthinkable for a state
legislature to dispense with popular election for electors, but this would
certainly *not* be unconstitutional under the Reynolds-Kramer line of cases.


For what it is worth, I do not understand the Florida legislators as
contemplating an exercise of any power simply to choose electors, but only
to judge which slate of electors was properly elected should the courts fail
to make a final determination, pursuant to law, prior to Dec. 12. The
interesting question is what might happen if the Florida courts reach a
final determination but the Florida legislators believe that in so doing
they did not follow applicable law.

Michael McConnell
University of Utah College of Law
332 South 1400 East Rm. 101
Salt Lake City, UT 84112


> -----Original Message-----
> From: Tom Grey [mailto:tgrey at LAW.STANFORD.EDU]
> Sent: Saturday, December 02, 2000 12:53 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Article II
>
>
> 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
>