hendersl at IX.NETCOM.COM
Wed Nov 8 10:55:01 PST 2000
RE: election questionsThe last time that I know of that one party really did
control all three branches was the late 30's-40's, when the Democrats were
in control.. One could say that briefly during the Eisenhower era, this was
also the case, except that the Court never really "belonged" to the
Republicans in the same way. Thus, Bush's election *is* very signitifcant,
for all kinds of reasons. If Gore actually wins the popular vote, then it
is a mess.
In terms of being bound by the text of the Constitution, we've moved far
beyond the "original intent"--and two states (Maine and who else? I cannot
remember) allow their electors to split votes, which isn't precluded by the
text, but violates the "practice" of winner-takes-all that developed. There
is no rule I know of to bind electors to the majority vote of their states.
If I am wrong, Eugene, please correct me.
On amending the Constitution, I am not sure the Republicans would have any
incentive to do so, and therefore we are still stuck with this rather
archaic system. As it is truly a political question as to how electors
should vote, I don't think Alex's thoughts are so beyond the pale.
From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Volokh, Eugene
Sent: Wednesday, November 08, 2000 9:55 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: election questions
It seems to me that in selecting a President, the definiteness and
finality of the choice is, if not everything, close to it. Sure, we can all
imagine some unusual situations in which it isn't (what if Hitler were
elected President?), but this isn't one of them. The fact that a bare
majority of votes in the Senate (considering also the VP tiebreaker), the
House, or the electoral college will lead to the majority party having the
power in all three bodies isn't some weird anomaly -- it's the natural
result of a system in which a bare majority does rule, and of course it will
be necessarily tempered in the Senate and the House by the fact that party
discipline is far from perfect.
To create another month and a half of uncertainty, electioneering,
and probably behind-close-doors jockeying with the electors, on the other
hand, would create a *very* serious problem, and may well lead to a result
that ends up being much less credible to the public than the current one.
Even if the proposal otherwise seems like a good one -- and I'm not sure it
does -- it will have been created over the span of only a few weeks, this
will have been the first time that it's tried, and there will be guaranteed
snafus. Doubtless someone won't like this result, so they'll come up with
another proposal to "fix" the supposedly unfair result created by this one,
and so on. We should count ourselves fortunate that we've never had to deal
with this sort of uncertainty and instability since (I imagine) at least
We had an election, and whoever wins the recount in Florida will
have won the Presidency fair and square, or at least fair and square enough
given what one can expect of an inevitably messy political process.
Likewise for whoever wins the House and the Senate, under the rules that
we've consistently applied every election cycle. In 2002, we'll get to vote
again, and if the public still so closely divided, the House or the Senate
may well go Democratic; in 2004, the Presidency may go the opposite of
wherever it's going today. It seems to me that all of us, Democrats,
Republicans, and others, should have a strong interest in maintaining a
stable if imperfect system (and perhaps finally getting around to fixing the
Electoral College through the standard means of a constitutional amendment)
instead of trying to fix a particular result that is far from clearly broken
through untried, ad-hoc means.
Alex Aleinikoff writes:
Al Gore's Campaign Chairman Bill Daley appears to have stated that if
Bush has won Florida that Gore and Lieberman are prepared to concede the
election. Should they? Here's a counter-argument, based on the assumption
that Gore has won the popular vote (and that the Nader votes in Florida cost
Gore the election). Obviously, the country is divided right down the middle.
The Senate may well be tied [although even if 50-50, is it correct that Lott
remains Majority Leader?]; the House is nearly tied. To give the White House
to Bush would allow Republican domination of both branches--permitting a
Vice President who received fewer votes than his opponent to cast
tie-breaking votes. In such circumstances, why shouldn't the Democrats try
to build a popular campaign to have electors "vote their conscience" or
establish a "fusion government." I'm not sure what form such a proposal
could take. Consider the following suggestions: (1) that electors split
their ballots for Bush and L!
ieberman, or Gore and Cheney [note that the 12th Amendment calls for
distinct ballots for President and Vice President; and the requirement that
no elector vote for both a President and Vice President from their own state
means that the Constitution might require an electoral to ignore the vote of
his or her state.]; (3) that electors adopt proportional rather than unit
voting rules; or (3) that electors carry out a public debate when they "meet
in their respective states."
Several questions: to what extent are electors bound by state law to
vote as a unit for the winner of the state? would campaigns for "open
voting" by electors create too great a potential for mischief? would it be
inconsistent with the constitutional design? is it finally time to get rid
of the electoral college?
Georgetown University Law Center
aleinikt at law.georgetown.edu
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