Twelfth Amendment (Electoral College) should be used

[davidgmills]

to make national election laws with timetables, recount procedures and federal jurisdiction over federal election contests.

"The electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;...."

Some things instantly jump out at me about this amendment. First, since we used to be able to vote for Pres and VP separately, the fact that we can no longer do this has changed the power of the executive considerably. This "separation of powers" is now gone.

Second, why have one elector from a different sate? Weird.

But the point I want to make is that while we advocate paper ballots, and while we advocate recounts, we are not insisting upon national federal election laws (with federal court jurisdiction) of both recount and election contest litigation to sync up with federal electoral college deadlines. What good are these paper ballots and recounts if we can't get the issues checked and resolved in a timely manner.

People forget, or never realized to begin with, that the problem with Florida 2000, was the sorry state election law that took no consideration whatsoever for a national election and was designed strictly for state elections.

People also think that Gore made a mistake by not asking for a statewide recount. I confirmed this week, that according to the Washington Post, under state election law he could not ask for a statewide recount.

Take Ohio this year. Again no federal election law to help force a recount or have a litigated election contest.

A state by state system of recounting and election law contest is just absurd. At present, it's a game of beat the clock that the contester just can't win. State election laws are designed to take months for recounts and election contests. If a state has to do without a state representative for nine months, it's no big deal. That is the usual timetable to resolve a state election contest. But in our federal election for President you have eight or nine weeks. That's it.

If we are going to retain the electoral college, which I think as a practical matter we will whether we like it or not, the least we could do is make a uniform system of recounts for federal elections and a uniform system for contesting the validity of the "elected." And the federal courts need to be the courts decidng this, not the state courts.

One of the reasons cited for the electoral college is that if there is a questionable election, then the problem, if local, can be handled by the state where the problem occurred. You don't need an entire national recount or national election contest. You go to the state where the problem was and recount there and contest there. But this advantage to the electoral college is totally lost when we continue to have this hodge-podge state by state system of recounting and electoral contesting.

We badly need federal jurisdiction over the recounting and contesting of our federal elections, which takes into account the federal timetables. It needs to be a federal law with rocket procedures and dockets, not turtle procedures and dockets. If the federal courts do not get this jurisdiction and it is left to the states, paper ballots and other recount measures will only be a panacea.

[dandrhesse]

1. Russ Feingold did introduce legislation of this nature last year.

Of course it was not passed, don't even know if it went beyond introduction. I have it somewhere here in one of my stacks but if you search on THOMAS the government website and search for bills introduced or sponsored by Feingold you will see it. Jesse Jackson Jr. has also introduced legislation which has not passed. These issued were addressed and valiant attempts were made to remedy them, to no avail. The question is why are Republicans opposed to free, fair and transparent elections?

[many a good man]

2. States' Rights Issue

Under the Constitution states are given all the authority over how to hold elections. If states wanted to vote using colored marbles they could. People don't even have the right to directly elect our President under our anachronistic system. Feds now can only get involved if there is a violation of civil rights.

It would seem to require a Constitutional amendment to make the changes needed. OTOH, I think we can frame it as a civil rights issue. The remedy will be to subsidize the entire federal election system with uniform standards and grant billions to implement it. Officially this new system would only be required for federal elections, but of course states could and would use the same system for all races. That's how we can avoid a constitutional challenge.

A fair recount standard would require uniform ballot and counting rules. Its a big task.

[davidgmills]

3. States' Rights

See, I'm not sure it is a states' rights issue because it involves the election of the President and VP pursuant to the twelfth amendment.

It is only be a states' rights issue when the powers or rights are not expressly granted or implied under the Constition.

I think under the ambit of the twelfth amendment, the means of electing the state electors who ultimately vote for the president and vice president of the US is a federal issue not a states' rights issue.

[Kip Humphrey]

6. NOT IN THIS CONGRESS

David,
I have to disagree:

First: the electoral college does vote for president and Vice-President separately which is all the 12th amendment addresses (minor point)

Second: The states conduct elections not the federal government

Third: I will not trust THIS Federal government with election reform. HAVA has proven to be disastrous. In my view, the federal government should be removed from interfering with elections.

Fourth: We have a better chance of achieving good, solid election reform at the state level where there is less central control and influence exercised by the RNC (so far).

Fifth: Bad law is more likely to be rescinded at the state level than the federal level (historical)

Sixth: States have the flexibility to experiment, try different things, make mistakes, and, most importantly, correct mistakes in ways the Federal government never (or very seldom) does.

The only federal action I would fully favor is a complete repeal of HAVA. "Making HAVA better" only further institutionalizes it and puts our elections under the control and whim of Congress forever more.

[davidgmills]

7. All good states rights arguments

But since I have lived in the south all of my life and legal career, we know here that if we want meaningful civil rights change it has to come from the federal government.

I too am concerned about the federal government at present and what laws they will come up with. It could be worse than the some of the states would produce, but on the whole, I really doubt it.

I also have great familiarity with both state and federal courts. I would feel far more comfortable in most federal courts than in most state courts on issues such as these.

State and local officials pay far more attention to what a federal judge tells them to do than a state judge. That is just the way it is.

Besides, looking at all the threads on potential federal legislation, it seems that it is a done deal that there will be federal legislation whether you want it or not.

I say give the federal courts a hammer to make sure recounts are done expeditiously and right and election contest litigation is done expeditiously before all matters are moot.

[Igel]

4. I take one bit of the text a bit differently, but I'm no lawyer.

"The electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; ..."

"Second, why have one elector from a different sate? Weird."

If "themselves" refers back to the set of electors, I don't see how the "one" can be in that set. ("One of the electors has to be from a state different than the electors are from" is ungrammatical for me.)

If it refers to the set containing the president and vice-president, it becomes grammatical, though awkward. So New Hamshire could vote for two Oregonians, but not two New Hamshire-ites. Still a strange thing to have in the amendment. But less strange.

[davidgmills]

5. I believe your right

Makes sense because in those days the Pres and VP were not on the same ticket.

[many a good man]

8. You need an historian, not a lawyer

You misstate the law:

"Second, why have one elector from a different sate? Weird."

You mean candidate from different states. Many states were uneasy about the centralization of power inherent in the new Constitution compared to the weak Articles of Confederation. Its always difficult for states to give up even a tiny bit of sovereignty for any reason. They were extremely afraid of being run over by the larger wealthier states. This is how their allegiance was won and the Constitution was ratified. Its still an issue today.

[BeFree]

10. Further clarification: Candidates

Since it was conceivable that the two candidates could come from different parties, it made sense to ensure that at least two states were represented.

Therefore:
The president must be from a different state than the vice president.

[davidgmills]

12. Further clarification

There was the possibility that you could have two candidates from the same party and from the same state.

Parties really didn't exist then though so I don't know whether the founding fathers would have prohibited the pres and vp from being in the same party. If they clearly thought this could be a separation of powers problem, maybe they should have prohibited the pres and vp from being in the same party.

But it is clear (to me now, duh) that they thought that the pres and vp should be from different states.

They didn't seem to mind (or appreciate the implications of )candidates from the same party however, or they would have prohibited this as well.

[Wilms]

9. kick n/t

[BeFree]

11. That would be the best reform ever

It makes perfect sense using the constitution as a basis for lawmaking, eh?

The federal courts should be prepared to hear cases immediately after every election.

So far the timing has been all screwed up -- of course, it was screwed up for a purpose: It keeps the incumbents safe. Hey, who wrote all the existing election laws? The incumbents.

Good work, David.

[davidgmills]

13. I'd like to take credit for this idea

but all the laws Congress passes have to have some basis in the powers granted to Congress by the constitution. If the laws don't have a basis in the powers granted Congress by the constitution, then the laws are unconstititional.

But I'm sure that it is never explained quite like this to the average person.

[Wilms]

14. kick n/t