Missouri Senate Race

[John Noble]

At 2:12 PM -0500 11/6/00, Richard Dougherty wrote:
>I generally agree. I wonder, though, how many voters who cast their vote
>for >the deceased candidate are (or, in Missouri, will be) aware of the
>consequences >of their vote.

Perhaps the best defense for the provision is that it covers those
circumstances where the electorate is not even aware that the candidate on
the ballot is dead.  It is hard to imagine in the age of CNN, but through
much of the 19th Century news of a candidate's death might not reach half
the voters in rural areas of a large state in less than a couple of weeks.
And I haven't looked at the Missouri provision, but I expect that it also
covers a post-election, pre-investiture death where the voters are plainly
unaware of the consequences of their vote.

My question is why the Governor. It so happens that Missouri has a Democrat
governor appointing the successor of a Democrat candidate, but it would
make little sense if a Republican governor could appoint Ashcroft after he
was rejected at the polls. In RODRIGUEZ. v. POPULAR DEMOCRATIC PARTY, 457
U.S. 1, the Supreme Court upheld a provision in Puerto Rico's constitution
which provides for the replacement of a deceased legislator by his
political party, and cited Garcia v. Barcelo, 671 F.2d 1, 6 (CA1 1982):

"One might argue, as a matter of form, that appointment by a governor is
indeed more 'democratic' because the governor is himself elected. Yet in
practice this is not likely to be so when the governor and former
representative are of different parties. In that case the party difference
is likely to produce successors of different parties. In such
circumstances, we see how the framers of a state constitution might
conclude that party selection is more likely to reflect the will of the
voters than selection by the governor, for it was the former
representative's party, not that of the governor, that won the prior seat.
Such a judgment, reflecting a knowledge of political practice, seems
perfectly consistent with the basic democratic role of the modern political
party -- translating the individual wills of myriad voters into a
practically achievable program administered by a government that can be
held responsible for its performance at the polls."

(Obscure legal trivia: The case was Abe Fortas' one and only appearance
before the Supreme Court following his resignation. He successfully
represented Puerto Rico's Popular Democratic Party.)

John Noble