U.S. S.C. Intervention into Florida Dispute

[Bryan Wildenthal]

> -----Original Message-----
> From: Scarberry, Mark [mailto:Mark.Scarberry at PEPPERDINE.EDU]
> Sent: Thursday, November 30, 2000 2:53 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: U.S. S.C. Intervention into Florida Dispute
>
>
> At some point I will reply in detail to Bryan's description
> of McPherson v.
> Blacker, but don't have time to do so now. For now I will
> just note that I
> think he is misreading the US Supreme Court's opinion. It includes an
> apparently favorable quotation of federal legis. history to
> the effect that
> a state constitution cannot override the legislature's power
> under Art II,
> sec. 1. The reference to the US Supreme Court not being able to review
> matters of state law does not mean that a state const.
> restriction on the
> legislature's power would be a matter of state law. It simply
> means, as I
> see it, that the US S. Ct. can't review the state s. ct.'s
> interpretation of
> the state constitution. That is why the US S. Ct. had to
> reach the federal
> question whether the election of electors by district
> violated Art II, sec.
> 1. Of course had it violated Art II, sec. 1 then it would not
> matter what
> the state constitution provided. Since it did not violate Art
> II, sec. 1 the
> US S. Ct. affirmed. But that does not mean that the US S. Ct.
> thought the
> state constitution could bind the state legislature's
> exercise of its power
> under Art. II, sec. 1.

[Bryan Wildenthal:  It also does not mean that they thought the opposite,
whereas the Court's own language in McPherson that I quoted does suggest
that they thought the opposite.  But I think Mark and I are in agreement
that the above issue was not strictly relevant to the Court's holding in
McPherson, which only concerned a Leg's power to adopt district elections as
opposed to statewide vote.  The "legislative history" quotation in McPherson
that Mark refers to is dealt with in Larry Tribe's reply brief, p. 18, which
notes that the Bush side quoted it without indicating that it was NOT the
McPherson Court's own language, but merely quoted language from an 1874
Senate committee report.  This was a report on a failed constitutional
amendment to establish a district election system for electors, and thus
take away the state Leg's power to designate other (possibly undesirable)
"manners" of choosing electors, such as vesting appointment in the Governor
or State Supreme Court.  The report's point was simply that, under existing
Art II:1, a state leg could always repeal laws providing for popular
election of electors, and revert to any other "manner" it chose.  The
McPherson Court's point in quoting it was, it seems obvious in context,
merely to underscore the point that state Leg's are free to adopt district
election systems.  In any event, a single Senate committee report in 1874 is
not necessarily even a persuasive authority as to what constitutional
language adopted in 1789 means.]

> The Court's recitation of the history of selection of
> electors by state
> legislators (without any concurrence of any governor) is
> interesting, and I
> think it is compelling evidence that the legislature holds
> the Art II, sec.
> 1 power by itself.

[Bryan Wildenthal:  That obviously does not follow.  The fact that a state
legislature could delegate to itself the unreviewable authority to choose
electors (just as it could, by law, delegate that unreviewable power to the
Governor, or indeed the State Supreme Court) has nothing to do with whether
the Leg's exercise of legislative authority to so determine the "manner" of
their selection would not be subject to the usual checks and balances
involved in enacting and enforcing state legislation.]

> We'll see what the present US S. Ct. makes of McPherson soon.
>
> Mark S. Scarberry

[Indeed.  We will find out whether the supposed commitment to states' rights
by the Lopez/Morrison majority is real or not. -- Bryan Wildenthal, Thomas
Jefferson School of Law]