Proposed Constitutional Election Amendment

[Bryan Wildenthal]

In response to Greg Sisk and Jim Maule on the below points (again with
thanks for the provocative stream of commentary), it seems to me (unless I'm
missing something) that my proposal is completely neutral as to the status
and opportunities of third/small-party candidates.  I don't think it moves
the system in any direction, either more or less favorable to such
candidates.  It does give voters supporting third-party candidates more
influence over the final choice between the top two finishers, if they wish
to exercise it.  It thus seems paradoxical that Greg suggests my proposal
"disenfranchises" such voters; under our current, no-run-off system they are
more truly disenfranchised since they may cast a vote for a third-party
candidate only on pain of relinquishing any influence on which of the
major-party candidates wins --- and third-party voters will usually, I
think, have at least a "least worst" preference between those.  My proposal
deliberately ENfranchises such voters in this regard.

Under our current system, "10 or 15 people can [already] run outside of the
party-locked primaries," third-party candidates can already bypass party
primaries, disgruntled losers of party primaries can already launch
third-party bids, etc.  My proposal wouldn't necessarily change any of this.
It does clarify Congress's power to regulate the primary election process
(within other constitutional limits) in ways that might change things, but
that is left up to legislative judgment (where it pretty much now rests).

To also throw in a brief response to Leslie Goldstein's posting, her
concerns about shortening the election calender also do not flow from
anything my proposal requires.  It's up to Congress whether to shorten or
stretch out the primary calender.  My proposal would clarify Congress's
centralized power to regulate this, instead of the present
"race-to-the-bottom" competition among states to get their primaries in
first.  Leslie feared that having a summer election would be as inconvenient
as a November election.  Even the run-off under my proposal would be no
later than early to mid-May, but, especially given Ann Althouse's point
about not holding the run-off too soon after the general, I think it is a
sound suggestion to shift the schedule earlier and stretch it out a bit.

Bryan Wildenthal, Thomas Jefferson School of Law

> -----Original Message-----
> From: James Maule [mailto:maule at LAW.VILLANOVA.EDU]
> Sent: Monday, January 29, 2001 11:37 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Proposed Constitutional Election Amendment
>
>
> >>> greg.sisk at DRAKE.EDU 01/28/01 08:12PM >>> writes
>
> It is also arrogant to assume that voters for
> third-party candidates would all gladly have made a second-choice
> because they viewed one of the major party candidates as a
> satisfactory alternative.  Setting up a system in which runoffs will
> occur regularly and voters must make second choices, either
> immediately or in a runoff, effectively disenfranchises the committed
> opponent of the two major parties from participating in the final
> balloting.
>
> ========
>
> And what of people who have no FIRST choice (who either stay
> home or go for the perceived least offensive candidate)?
> People could do the same as to second choices... leave it
> blank (i.e., don't indicate a second choice) or not show up
> for the run-off.
>
> I agree that there is a problem but it's deeper than and not
> caused by Bryan's proposal. (And I'm not sure his proposal
> makes it any worse other than causing it to happen twice
> rather than once).
>
> Bryan's proposal (in terms of run-offs, not necessarily in
> terms of electoral college removal) moves us a tiny step
> closer to a system in which 10 or 15 people can run OUTSIDE
> of the party-locked primaries. The assumption that the two
> "major" candidates are the best their parties can offer is a
> sad and untrue, misleading, scary thought. ("If this is the
> best we have, then..... [fill it in for yourselves]). Some
> sort of open election (which would, of course, require a
> run-off) might have the effect of "revealing" a very viable
> candidate who otherwise would be foreclosed.
>
> Query: Are there constitutional problems with eliminating the
> hold of the PRIMARIES on the electoral process? Are primaries
> constitutionally REQUIRED? Are there problems in prohibiting
> them? (I suspect so, certainly in terms of elections for
> state offices, and maybe for election of state represenatives
> and Senators to the Congress but I'm not certain). At least
> with respect to Presidential elections, cannot the federal
> government bar the use of primaries? And wouldn't that have
> an interesting spillover effect into the campaign financing
> environment?
>
>
>
> Jim Maule
> Professor of Law, Villanova University School of Law
> Villanova PA 19085
> maule at law.villanova.edu
> http://vls.law.vill.edu/prof/maule
> President, TaxJEM Inc (computer assisted tax law instruction)
(www.taxjem.com)
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