Race to the bottom
Mark.Scarberry at pepperdine.edu
Sun Aug 12 09:00:58 PDT 2007
The primaries do not choose electors. The manner of choice of electors, other than the time at which they are chosen, is committed the state legislatures per Art. II, sec. 1, cl. 2. A similar issue is being discussed on the electionlaw list. Here is the post I sent to that list on the issue:
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From: Scarberry, Mark
Sent: Thu 8/9/2007 9:58 PM
Subject: RE: constitutional issues with congressionally mandated regional primaries for president
Some probably pedestrian points:
It seems to me that McPherson v. Blacker (1892) and the per curiam Palm Beach County decision (2000) make clear that state legislatures have plenary power to determine the manner of selecting electors. ... [L]ist members will of course have considered that question at length in the context of the limitations that Article II may place on use of state constitutional provisions by state supreme courts to override legisative choices. See McPherson, Palm Beach County, and the concurrence in Bush v. Gore. It seems to me that it is even clearer that *Congress* has no power to interfere with choices of state legislatures in this regard (assuming those choices do not run afoul of the 13th, 14th, 15th, 19th, 24th, or 26th Amendments or legislation validly enacted under one of those amendments).
I suppose Congress could usurp the power to interfere without there being any remedy for the usurpation, because Congress counts the electoral votes and could refuse to count votes of electors who were not chosen in conformity with a congressional dictate. But that would be a usurpation.
Assuming the primaries are part of the manner in which presidential electors ultimately are chosen, the manner of holding primaries, including dates, should be for the legislatures to determine, subject to whatever associational rights the parties may have under the 14th Amendment. Even if the primaries are not seen as part of the manner in which electors are chosen, it's still hard to see any constitutional authorization for Congress to interfere.
Art. II, sec. 1, cl. 4 only gives Congress the power to determine when the electors are chosen, not the power to determine how they are chosen. I don't think clause 4 authorizes Congress to set the date on which party convention delegates are chosen. They, of course, are not presidential electors. I suppose Congress could bribe the states or parties into setting up regional primaries, but the price might be steep.
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From: conlawprof-bounces at lists.ucla.edu on behalf of guayiya
Sent: Fri 8/10/2007 11:09 PM
To: Samuel Bagenstos
Cc: Sanford Levinson; CONLAWPROF at lists.ucla.edu
Subject: Re: Race to the bottom
But what about AII s1 para4? Even if it does not require that all states hold primaries on the same day, surely it opens the door for Congress to act. And I don't see how the 12th amd. changes this.
BTW, for other examples of big problems w/federalism, how about the current efforts by congress and states, respectively, to address the immigration issue?
Samuel Bagenstos wrote:
Isn't AIs4 just about Congress?
From: "guayiya" <guayiya at bellsouth.net> <mailto:guayiya at bellsouth.net>
Subj: Re: Race to the bottom
Date: Fri Aug 10, 2007 5:38 pm
Size: 596 bytes
To: "Sanford Levinson" <SLevinson at law.utexas.edu> <mailto:SLevinson at law.utexas.edu>
cc: "CONLAWPROF at lists.ucla.edu" <mailto:CONLAWPROF at lists.ucla.edu> <CONLAWPROF at lists.ucla.edu> <mailto:CONLAWPROF at lists.ucla.edu>
Art. I, sec. 4 seems to clearly say yes. Someone might try to argue
that the "but the Congress..." proviso does not apply to primaries and
that those are reserved to state control, but this makes little sense
given all the caselaw in which primaries are governed by the bill of
rights and the VRA.
Sanford Levinson wrote:
So the constitutional hook is this: Could Congress simply impose a
sane primary system in the face of complete and utter irresponsibility
of the states and the lack of any backbone by the ostensibly
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