An Innovative Approach to the Electoral College : Part One
Re-Evaluating the Right-To-Vote For President
For the second time in five election cycles we experienced a presidential election with significant controversy. In the just completed 2016 election, Donald Trump lost the popular vote but won the Presidency because 48 of the 50 states require all electoral votes from the state be cast for the candidate winning the most votes. Had the electors been proportionally allocated in all states, it would be Hillary Clinton taking the oath of office on January 20th.
While the outrage among those who did not vote for Trump/Pence was palpable, no attempt to challenge the vote or electors was successful, largely because the judiciary and the entire legal profession subscribe to this dogma: The citizens of the United States have no Constitutional Right-to-Vote for President. If the right to vote does not exist, there is no basis for challenging how electors are allocated among the candidates.
The majority opinion of the Supreme Court in Bush versus Gore (2000) is instructive: The State … after granting the franchise … can take back the power to appoint electors. … “[T]here is no doubt of the right of the legislature to resume the power at any time… .” In other words, even after the vote, the state legislature can cancel the effect of our vote and appoint whoever they wish as electors!
Notwithstanding the entrenched history of this dogma, it contradicts the Constitution and disrespects the fundamental principle upon which the very existence of our constitutional republic depends — the sovereign voice and vote of its citizens in the exercise of government. The Right-to-Vote for Presidential electors is conferred in Section 2 of the Fourteenth Amendment; informed by the Equal Protection Clause, the principle of One-Person-One-Vote, and Article IV, Section 2; and may not be revoked at will by the legislature at any time.
Section 1 of the Fourteenth (Equal Protection, Due Process, etc.) has been extensively litigated. Section 2 has almost no case history, being largely ignored except when employed by legislators to deny felons the Right-to-Vote. Indeed, the most extensive language of Section 2, concerning the Right-to-Vote and consequent penalties for state violations thereof, has largely escaped notice and comment.
But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.(Amendment XIV, Section 2)
That this section has escaped the critical eye of the legal profession, otherwise so adept in logical, textual analysis is astonishing but may, perhaps, be understood in the context in which the principle actors in our system of jurisprudence are schooled. It is lawyers, after all, who are the significant actors at virtually every important intersection of legal knowledge, implementation, and practice — lawyers are the professors, the practitioners, the judges and, often, the legislators.
Law schools are, by-and-large, professional institutions tutoring future lawyers in the tools (dogma) of the trade — case history, precedent, rules of procedure, etc. — not think tanks. A survey of the curriculum at many of the most prestigious law schools reveals precious little time, outside the parameters of case law, practice and rules of procedure, afforded to engaging in or exploring new and original Constitutional theory. If there is no precedent or rule of procedure, there is usually no case. Novel approaches are discouraged; if not actively, at least implicitly.
One cannot reasonably argue that dogma itself is harmful or even undesirable. We all necessarily engage in repetitive processes, doctrinaire in nature, which are fundamentally dogmatic. It is when those dogmas are not subjected to periodic and rigorous critique that they lend themselves to capricious misuse, unjust dismissal, and egregious misapplication.
The contradictions between the legal dogma, asserting the right does not exist, and the Fourteenth Amendment, Section 2, unequivocally conferring the right, is stark and irreconcilable. No matter the weight of precedent, for justice to prevail, dogma must give way to the Constitution. We do have the Constitutional right to vote in Presidential elections!
In 2000 the Florida Republican legislature devised a contingency plan to ensure Bush won the state. Should Gore have prevailed at the polls, the legislature planned to convene in an emergency session for the explicit purpose of replacing Gore electors with Bush electors. Whatever the results of the vote, we were fated to have Bush as President.
Had the Constitutional Right-to-Vote as conferred in Section 2 been properly sanctioned, such a draconian design to subvert the will of the voters might never have been seriously considered. As it is, the offensive dogma repeated in Bush versus Gore would have provided a priori permission for such disgraceful behavior.
It is time, indeed past time, to reevaluate our Right-to-Vote cognizant of the language of Section 2.
(Next: Asserting and Proving the Right-to-Vote for Electors for President)
