Electors

[Scarberry, Mark]

The 17th Amendment is in fact a very good reason to think that the Art II,
sec. 1 power is not subject to limitations imposed by the state
constitution, at least if we are going to pay much attention to the text.
The Court in McPherson v. Blacker made the point that a US Constitutional
amendment was necessary to change the method of electing US Senators,
precisely because the pre-17th Amendment Constitution gave that power to the
state legislature and because the state legislature's pre-17th Amendment
power could not have been limited by the state constitution.

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu


-----Original Message-----
From: Sanford Levinson [mailto:SLevinson at MAIL.LAW.UTEXAS.EDU]
Sent: Thursday, December 07, 2000 10:11 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Electors


>Prof. Volokh wrote:
>The fact is that today electors are chosen with the assumption that they
will vote mechanically, and are thus not really vetted for their sterling
character, wise discretion, or what have you.  When everyone acts in
reliance on this sort of now fairly traditional assumption, it doesn't
quite seem right for the electors to
>reject this assumption and start exercising discretion *for which they were
>not chosen*.  It may be constitutional -- but it just isn't right, . . . .
>
I basically agree with Eugene, but that only underscores the anti-Scalian
point that we must read the constitution in the light of changes that have
occurred in our operative political culture since the good old days of
1787.  It is no more "right" for the Florida legislature to threaten a de
facto coup than for an elector to decide to revert to the old
understanding.  The difference in the two examples, some of you would
argue, is that Eugene concedes that faithless electors are constitutional,
albeit immoral, whereas I want to argue that the Florida legislature would
be behaving illegally as well as despicably.  I think that is true, given
both the technical statutory arguments made by Steve Griffin and others
and, more importantly, the rejection by our political culture, seen most
vividly in the 17th amendment, of the proposition that the state
legislature can deprive the populace of the right to choose its governors.

sandy levinson