Title 3 U.S.C. Legislative History

[John C. Eastman]

I agree with Professor Katkin's assessment of the import of 3 USC 2 and Congress's
power to set the time for choosing electors.  Where we disagree is whether there
has been a "failure" to choose on the appointed day (in the appointed manner).
Actually, I am not even sure we disagree there, but the relevant question is what
Congress will/might think.  If they reject the Harris slate as not lawfully
certified in accord with Florida law (and there is no other slate), surely that
constitutes a "failure" for sec. 2 purposes.  Can the legislature, then, concerned
about that very real possibility, not certify a back-up slate?

We regard to Professor Katkin's response to my reply to Bill Lasser, Bill Lasser
specifically noted "that the Florida legislature is preparing to act by concurrent
resolution, which, in their view, apparently would trumps existing law."  That
suggests, at least to me, that he viewed the problem as one of the legislature
acting by concurrent resolution to overturn a statute enacted by a prior
legislature.  My comment questioning his implicit conclusion that that would be
improper applied only to that.  Obviously, the Florida legislature could not
overturn sec. 2, enacted pursuant to Congress's own plenary power to fix the date
of choosing electors (but then see above for why I don't think that necessarily
binds the Florida legislature in this instance either).  But perhaps I misread
Bill Lasser's post.
-- John Eastman

Kenneth Katkin wrote:

> In response to Prof. Eastman:
>
>   First, let me freely admit that I have read through these legislative
> history materials only once, that the Cong. Globe is somewhat confusingly put
> together, and that I surely failed to grasp the meaning or significance of
> some of the floor statements that I did read.  I would need to work through
> these materials far more carefully before I could come to any solid
> conclusions about the "legislative intent" of the 28th Congress that enacted 3
> U.S.C. secs. 1-2 and 4.
>
>     That being said, however, I believe at this point that Rep. Hale's New
> Hampshire example supports the Gore argument and refutes the Bush argument.
> By specifically referring to a State in which, by law, no one could be deemed
> an election "winner" without receiving 50% of the popular vote,  Rep. Hale
> appears to me to have indicated that a State's popular election would be
> deemed to have "fail[ed]" if and when it could be ascertained that no
> candidate satisfied the State's (pre-existing) definition of "winner."
>
>   This is precisely the opposite situation from the present situation.  Here,
> Florida's pre-exisitng law awards the election to whoever gets the most
> votes--even if the margin of victory is only one vote.  Thus, Florida cannot
> be said to have "fail[ed] to make a choice on [election] day" unless and until
> it can be determined that Bush and Gore got precisely the same number of votes
> as each other.  (In that event, I would surely agree with you that the state
> legislature could then choose a winner under 3 U.S.C. sec. 2).  If one of them
> got even one more popular vote, however, then the one with more votes is the
> winner.  A failure to count the ballots quickly enough to satisfy the media
> does not constitute a "fail[ure] to make a choice."
>
>     This reading of the 28th Congress's intent is borne out by Rep. Black's
> explanation of why Congress rejected a proposed amendment that would have
> vested the state legislatures and the popularly elected electoral colleges
> with some measure of concurrent jurisdiction.  As I noted before, this
> amendment was rejected because the 28th Congress was afraid if "those two
> bodies [were] of different political opinions, the election might be negatived
> entirely, and no election take place."  14 Cong. Globe 15 (Dec. 10, 1844)
> (statement of Rep. Black), available online by following a trail from:
> http://lcweb2.loc.gov/ammem/amlaw/lwcglink.html
> The clear implication is that the Congress did not intend to empower State
> legislatures to conduct popular elections of the President, but then to
> disregard the results if they did not approve of the outcomes.
>
>    Also, in response to your other question (addressed to Bill Lasser) about
> the propriety of one legislature binding, by statute, the exercise of a
> constitutionally delegated plenary power by a subsequent legislature, I would
> only note that here, no prior enactment of the Florida legislature has been
> said to prevent today's Florida legislature from awarding Florida's votes to
> Gov. Bush.  Rather, today's Florida legislature is prevented from doing so by
> the U.S. Constitution's delegation to the U.S. Congress of the power to choose
> the TIME of appointment of Presidential electors, and the Congress's actual
> exercise of that power to require that all states do so on the first Tuesday
> after the first Monday in November (regardless of whether they do so by
> popular vote or by a vote of the State legislature).
>
>   For reasons discussed above (and by others on this list), Florida has not
> "failed" to choose electors on Nov. 7, and therefore the one Congressionally
> authorized exception to the "first Tuesday" rule does not apply.  If, however,
> the Florida legislature now chooses not to conduct a popular election for the
> Presidency in 2004, then I would agree with you that the current Florida
> statutes that provide for such an election could not prevent the legislature
> from doing so.
>
> >===== Original Message From John Eastman=====
> >Funny.  I thought it would be more useful to Ted Olsen.  As I read the
> >legislative history graciously provided by Ken Katkin, a failure to choose
> >electors in accord with state election law constitutes a sec. 2 failure,
> >entitling the legislature to reassume its original plenary power over the
> >subject.  Is that not the precise argument being made, that due to the
> Florida
> >Supreme Court's Nov. 21 ruling, the "manner" of choosing electors was altered
> >(the discretion in the secretary of state, the deadlines for certification,
> >etc.), so that even the Harris slate (not to mention any potential contest
> >slate) was not lawfully certified in accord with Florida law, resulting in
> >a "failure" to choose electors on the appointed day, in the manner set forth
> >by the Florida legislature.
> >John Eastman
>
> >
> >Leslie Goldstein wrote:
> >
> >> wow, someone ought to forward this stuff to David Boies!
> >>
> >> Kenneth Katkin wrote:
> >>
> >> > Thanks to Prof. Neuman's recitation of Prof. Tribe's citation, I was able
> to
> >> > look into whether the legislative history of Title 3 casts any light on
> Prof.
> >> > Friedman's hypothesis that 3 U.S.C. § 2 "really looks to something like a
> >> > hurricane."  In fact, I think the legislative history suggests that
> Section 2
> >> > was intended to look to something quite different--namely, to state
> election
> >> > law (INCLUDING, I believe, election law set forth in State
> Constitutions).
> >> > Specifically, in discussing what type of circumstances might cause a
> State to
> >> > "h[o]ld an election for the purpose of choosing electors, and . . . fail
> to
> >> > make a choice on the day aforesaid,"  Rep. Hale of New Hampshire, in
> floor
> >> > debate, noted by way of example that, at least in New Hampshire:
> >> >
> >> > "a majority of all the votes cast was required to elect the electors of
> >> > President and Vice President of the United States and it might so happen
> that
> >> > no choice might be made.  If such a law had existed in some of the larger
> >> > States, that would have been the position in which they would have been
> >> > placed.  In the large State of New York, for instance, a majority of all
> the
> >> > votes given was not given for the electors, of whom, by the laws of that
> >> > State, choice was made."
> >> >
> >> > 14 Cong. Globe 14 (Dec. 10, 1844), available online by following a trail
> from:
> >> > http://lcweb2.loc.gov/ammem/amlaw/lwcglink.html
> >> >
> >> > Certainly, this statement is ambiguous concerning whether New Hampshire's
> >> > 50%-majority rule (which seems also to have been in effect in several
> other
> >> > states in 1845) derived from the statutes of New Hampshire or from its
> >> > Constitution.  But I found no evidence that the 28th Congress, in
> enacting
> >> > Title 3, perceived that anything would turn on such a distinction.
> Anyone
> >> > else who would like to search for such evidence might wish to begin with
> 14
> >> > Cong. Globe 14-15, 21, 27-29, and 35 (1844), all of which contain some
> floor
> >> > statements related to the statute that is now 3 U.S.C. §§ 1-2, 4.
> >> >
> >> > The legislative history of Title 3 also addresses the question whether
> the
> >> > State Legislature may, after conducting a popular election on election
> day,
> >> > appoint a slate of electors that was not elected by the voters.  Several
> reps
> >> > noted that Title 3 does NOT require popular elections, and that South
> Carolina
> >> > (by 1845 alone among the States) did not conduct popular elections for
> >> > President or Vice President.  See 14 Cong. Globe 14 (Dec. 10, 1844)
> >> > (statements of Reps. Elmer and Duncan).
> >> >
> >> > But it was also noted, without objection, that if a State legislature
> elects
> >> > the State's electors directly, then it must do so on election day, and
> not
> >> > later.  See, e.g., id. (statement of Rep. Duncan) (under the bill, "no
> >> > difficulty could occur in [South Carolina], for its legislature could be
> >> > convened every fourth year on [ELECTION DAY] to discharge the duties
> therein
> >> > prescribed.").
> >> >
> >> > And, of special significance today, the 28th Congress specifically
> rejected an
> >> > amendment that would have "give[n] concurrent jurisdiction to the
> legislatures
> >> > and to the [popularly elected] electoral colleges in the respective
> states,"
> >> > Id. at 15 (statement of Rep. Black).  The reason for rejecting this
> amendment?
> >> >  Because if "those two bodies [were] of different political opinions, the
> >> > election might be negatived entirely, and no election take place."  Id.
> >> > Exactly.
> >> >
> >> > Prof. Kenneth Katkin
> >> > 561 Nunn Hall
> >> > Salmon P. Chase College of Law
> >> > Northern Kentucky University
> >> > Highlands Heights, KY 41099
> >> > 859-572-5861
> >> > katkink at nku.edu
>
> Prof. Kenneth Katkin
> 561 Nunn Hall
> Salmon P. Chase College of Law
> Northern Kentucky University
> Highlands Heights, KY 41099
> 859-572-5861
> katkink at nku.edu
-------------- next part --------------
A non-text attachment was scrubbed...
Name: res07ujr.vcf
Type: text/x-vcard
Size: 450 bytes
Desc: Card for John C. Eastman
Url : http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20001210/e21d5a8e/res07ujr.vcf