New Jersey election law?

Mark Tushnet tushnet at LAW.GEORGETOWN.EDU
Thu Oct 3 16:00:57 PDT 2002

Richard Friedman writes:  "the Constitution contains what seems to me to
be a textual commitment of the issue of what electors were elected to
the houses of Congress."  I've analyzed the "textual commitment"
argument regarding presidential elections in some detail in an article
in the North Carolina Law Review.  For myself, I think it quite hard to
find a textual commitment of the sort Baker v. Carr seems to require.
At most, there's an atmospherics about the Twelfth Amendment that
suggests that "this stuff" should be left to Congress.  But actually
finding a textual commitment in the Twelfth Amendment, or anywhere else,
seems to me quite difficult.  I won't repeat the argument here, but only
note that the Twelfth Amendment says what happens when electors cast
their votes, but the issue in Bush v. Gore was precisely, Who are the
electors?  And, in any event, the political question doctrine seems to
require a clause-by-clause analysis.  That something about presidential
electors might not present a political question doesn't show that the
texts dealing with elections to the Senate do not commit decisions to
the Senate.  At the least, Art. I, sec. 5, cl. 1 provides a much more
substantial basis for a political questions argument than anything in
the Twelfth Amendment.
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