Disfranchising Wellstone absentee voters

[Sanford Levinson]

I suppose the question is whether "legitimacy" is a closed-end, legally
definable term, or something else.  Two illustrations:  In what sense were
the British taxes that triggered the Revolution "illegitimate"?  They were
certainly passed in accordance with British law.  Even more to the point,
in what way were the senators and representatives sent to Washington in
December 1865 "illegitimate"?  They were, after all, elected by "states"
that had the juridical ability to ratify the Thirteenth Amendment and were,
to boot, recognized as such by the President of the United States.  Yet
Congress refused to seat them?  Was Congress wrong to do so?  I personally
think not, just as I continue to support the impeachment of Andrew
Johnson.  But, in both cases, I think that one cannot in any way extricate
the "legal" issues from the "political" ones.

sandy

At 02:32 PM 11/03/2002 -0800, you wrote:
>Sandy,
>
>Your definition of "illegitimate" is one that makes no sense to me.  If
>Coleman wins in accordance with the Minnesota law, in what sense his he
>a "totally illegitimate 'winner'"?  Because in your view the law should
>have been otherwise?  That's a very strange basis for legitimacy.
>
>If the Senate did refuse to seat him despite the fact that, in
>accordance with Minnesota law, he prevailed in the election, I would
>agree that that was illegitimate, in the traditional sense of the
>phrase.
>
>As I have repeatedly said, I think the pre-election rules matter here,
>just as they did in Florida (7 days means 7 days), New Jersey (51 days
>means 51 days), Missouri ("resident on the day of the election" actually
>means alive), Missouri again (polls close at 7 pm means you have to be
>in line by 7 pm in order to vote), etc.  This list is getting rather
>long, and I think it demonstrates just how dangerous it is when we start
>tinkering with election rules after the election is underway.
>
>John Eastman
>
>
>
>
>
>-----Original Message-----
>From: Sanford Levinson [mailto:SLevinson at MAIL.LAW.UTEXAS.EDU]
>Sent: Sunday, November 03, 2002 12:37 PM
>To: CONLAWPROF at listserv.ucla.edu
>Subject: Re: Disfranchising Wellstone absentee voters
>
>Let us assume that Coleman "wins" the election because of the disputed
>absentee ballots.  I.e., to make the hypothetical as pointed as
>possible,
>he wins by, say, five votes even as it is indisputable that there were,
>say, 10,000 Wellstone votes that were disallowed.  Let us also assume
>that
>the Senate remains in Democratic control even sans Mondale.  Would
>anyone
>on this list see a constitutional objection to the majority's simply
>failing to seat the totally illegitimate "winner"?  (Would this be an
>example of "hardball constitutionalism"?)  Or, put it this way, would it
>be
>any more illegitimate for the Senate to refuse to seat  Mr. Coleman,
>whose
>election would presumably be endorsed by the questionably legitimate
>occupant of the White House and his legal minions, than it was for the
>1865
>Senate to refuse to seat those who were "lawfully elected," in the
>opinion
>of the then-President, to the Senate?
>
>sandy