Is It Time to Expand the Size of Congress?

Posted on Categories Congress & Congressional Power, Political Processes & Rhetoric, Public4 Comments on Is It Time to Expand the Size of Congress?

Seal of US House of RepresentativesOn August 8, 1911, President William Howard Taft signed a bill authorizing an increase in the size of the House of Representatives from 391 members to 433. A provision in the bill also provided that two additional members would be added in 1912, following the scheduled admission of New Mexico and Arizona as the 47th and 48th states, and thereby raising the size of the House to 435, which is still the size of the House.

This means that since the admission of Arizona as the 48th state on Valentine’s Day, 1912, the size of the House of Representatives has remained unchanged for the 101.5 years. (The admission of Alaska and Hawaii in 1959 increased the size of the United States Senate from 96 members to 100, but a decision was made at that time to keep the size of the House at 435.)

The 1910 Census reported the population of the United States as slightly more than 92 million people. In comparison, the figure for 2010 was slightly less than 309 million, an increase of more than 330%. This means that every Congressman today represents more than three times as many people as his or her counterpart of a century ago.

The original idea regarding representation was that congressional districts should be small enough that citizens would have confidence that their elected representative would be able to represent their immediate interests. However, the average congressional district of today has more than 700,000 constituents and is larger than 16 of the 46 states in 1910.

If we go back further into our constitutional past, the disparity is even greater. In the Congressional Resolution passed on September 25, 1789, endorsing a Bill of Rights for the Constitution and submitting the proposed amendments to the states, the original First Amendment required the creation of a minimum of one congressional district for every 50,000 people.

As it turned out, this was the only one of these “original” amendments that did not become part of the Constitution. Had the original first amendment been adopted, Congress today would be made up of approximately 6,180 members, which all but the most fervent admirers of the Founding Fathers and advocates of constitutional localism would likely agree is too large.

Under the relevant provisions of the Constitution (Article I, sec. 2, cl. 3, and Sec. 2 of the Fourteenth Amendment) the size of the House of Representatives is left entirely to the Congress to determine, with the restriction that unless the population of a state is under that number, every Congressional District must have a population of at least 30,000 citizens. This would currently rule out the possibility of a 10,300 seat House (or anything larger).

But to say that 6,000 (or 10,000) members is too many does not mean that 435 is not too few. Had the ratios embraced by the 1911 bill remained the norm, there would currently be 1,436 members in the House of Representatives. While most observers would react by saying that 1400 would also be too large, would that actually be the case? Or is that reaction just a predictable response to the unfamiliarity of the idea. (We are conditioned by experience to assume that 435 is the proper size of the House of Representatives. To remember a House that did not have 435 members, a person would have to be at least 110 years old, which is pretty much the equivalent of remembering the Chicago Cubs winning the World Series.)

It does seem possible that the House of Representatives in its current form is too small and that representatives are too far removed from their constituents, at least by traditional norms. Perhaps an influx of additional new members could help improve the image of Congress, which appears to be at an historic low. One thing is clearly true, dealing with a 6,000-member House of Representatives would change the way that lobbyists do business.

What Difference Did the Constitution’s Three-Fifths Clause Really Make?

Posted on Categories Congress & Congressional Power, Constitutional Law, Legal History, Public, Race & LawLeave a comment» on What Difference Did the Constitution’s Three-Fifths Clause Really Make?

We the PeopleThis is one in a series of posts relating to slavery and the Constitution as part of Marquette University’s observation of the sesquicentennial of the Emancipation Proclamation during the 2012-2013 academic year.

The United States Constitution’s infamous “Three-Fifths Clause” dictated that for purposes of representation in the House of Representatives African-American slaves were to be counted as less than full persons. The somewhat obliquely worded section of Article I, Section 2, provided:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Although this provision has traditionally been cited as evidence that the Constitution was a pro-slavery document (though never actually using the term “slavery”), historians have more recently begun to emphasize the “anti-slavery” aspects of the clause, or at least to argue that it reflects an ambivalence toward slavery among the document’s drafters. Since white women and children, free blacks, and property-less whites were counted as full persons for enumeration purposes, even though they lacked the right to vote, hold office, or serve on juries in most situations, the decision to treat enslaved people differently from others who lacked full citizenship rights was clearly to the disadvantage of those who lived in states with large slave populations.

The actual effects of the Three-Fifths Clause on Southern representation in the House of Representatives were not as significant as one might think. As it turns out, counting slaves as full persons would not have shifted the balance of power in the House of Representatives to the South at any point between the ratification of the Constitution and the onset of the Civil War.

In 1820, for example, 47% of the U.S. population lived in Southern states (i.e., states below the Mason-Dixon line and the Ohio River). Had slaves been fully counted for representation purposes, Southern delegates in the 1820’s would still have been outnumbered in the House of Representatives by a margin of 113-99, or possibly 112-100, rather than the actual 123-89 margin.

One might have thought that even this small difference would have mattered in the Missouri Crisis of 1819-1820, when a North-South division over the future of slavery in Missouri nearly erupted in a major constitutional crisis (which Thomas Jefferson compared to a “fire bell in the night”).

On March 1, 1820, the House of Representatives for the second time passed a Missouri statehood bill that would have admitted the Show Me state to the union subject to restrictions providing for the gradual elimination of slavery in the jurisdiction. The vote on the bill was 91 to 82, with 39 representatives not voting. The division was on a strictly geographical basis with Southerners bitterly denouncing the action.

An additional 10 or 11 Southern representatives in 1820, all voting against the bill, would seemingly have led to its defeat, presumably by a vote of 92 or 93 to 91. However, on March 1, 1820, the passage of the Northern bill was a foregone conclusion. Had there been a chance that the bill would be defeated, a larger number of Northern voters in the House would almost certainly have voted, given that 32 of the 39 abstaining voters were from Northern states.

Since the Northern states would still have had an absolute majority in the House, even if there was no Three-Fifths Clause, the anti-slavery version of the Missouri statehood bill would have passed the House of Representatives, regardless of what formula was used to establish representation.

However, the March 1 vote was ultimately of little consequence. The Senate at the same time endorsed the admission of Missouri as a slave state, as a clear majority of white Missourians wished. The conflicting positions of the two houses were reconciled by House Speaker Henry Clay in what came to be known as the Missouri Compromise.

Under Clay’s plan, Maine, previously the non-contiguous northern part of Massachusetts, was to be admitted as a separate free state while Missouri was to be admitted as a slave state. In addition, slavery was to be prohibited in any future state created out of territory north of the southern border of Missouri (excepting, of course, Missouri), while it would be permitted south of the line, which at that time included only the Arkansas Territory. The House approved this modification the following day by a vote of 90-87, thereby negating the impact of the previous day’s vote.

Moreover, in the years after 1820, the Southern disadvantage grew even smaller. According to the 1850 United States Census, approximately 39% of the United States population, free and slave, lived in Southern states, and that year the South controlled 38% of the seats in the House of Representatives. Although the Three-Fifths Clause reduced the “population” of the South about 1.5 million “persons,” the distribution of the slave population was such that the Clause had very little impact on the assignment of representatives, costing the region only two or three representatives.

When the Thirteenth Amendment was ratified in December of 1865, the Three-Fifths Clause was consigned to the dustbin of constitutional history along with the Fugitive Slave Act and the constitutional provision in Article V prohibiting the abolition of the international slave trade before 1808, all embarrassing reminders that, reluctantly or not, our Founding Fathers accepted the legitimacy of slavery in our nation’s foundational document.

Does Federal Law Actually Preempt Relaxed State Marijuana Laws?

Posted on Categories Congress & Congressional Power, Constitutional Law, Criminal Law & Process, Federalism, Public, Speakers at Marquette3 Comments on Does Federal Law Actually Preempt Relaxed State Marijuana Laws?

Federalism & MarijuanaThe Cato Institute’s Ilya Shapiro recently spoke at the Law School concerning the status of relaxed state marijuana laws in light of the federal Controlled Substances Act’s continued prohibition of activities that these state laws now allow. This is a timely question with, it turns out, a less-than-certain answer. More precisely, it demands an answer that is more nuanced, and less categorical, than one might initially be inclined to give.

One’s initial answer is likely that these state laws are preempted—that is, rendered void and unenforceable—because of the federal statute. It is conventional constitutional doctrine, after all, that the U.S. Constitution’s Supremacy Clause makes valid federal law supreme over conflicting state law. Moreover, because the U.S. Supreme Court in Gonzales v. Raich (2005) deemed the federal marijuana prohibition to be a valid exercise of Congress’ commerce power, the specific question of whether state marijuana laws are vulnerable to preemption seems already to have been answered.

Mr. Shapiro makes an important observation, however. Continue reading “Does Federal Law Actually Preempt Relaxed State Marijuana Laws?”

Important Points Won Even as ACA Case Was Lost, Paul Clement Says

Posted on Categories Congress & Congressional Power, Constitutional Interpretation, Federal Law & Legal System, Federalism, Public, Speakers at Marquette, U.S. Supreme CourtLeave a comment» on Important Points Won Even as ACA Case Was Lost, Paul Clement Says

Paul Clement’s arguments did not carry the day when it came to the outcome a year ago of the historic United States Supreme Court decision on the constitutionality of the individual mandate in the federal Affordable Care Act, popularly known as Obamacare. But his arguments were supported by a majority of the justices on important points that will have an impact for years to come in Congress and in the judicial system, Clement said in delivering the Hallows Lecture 2013 in the Appellate Courtroom of Marquette University Law School’s Eckstein Hall this week.

Clement, formerly solicitor general of the United States, has argued 65 cases before the Supreme Court. He was the lead attorney in presenting arguments to the Court on behalf of 26 states that challenged the health care law. The Court heard a remarkable six hours of arguments focused on several major aspects of the challenge.

“The challenge for the challengers was to run the table to the tune of going 15 for 15” on legal points involved in the case, Clement said. “The good news is the challengers went 14 for 15. The bad news, from the perspective of my clients, is that 14 out 15 isn’t good enough. . . . Getting a really satisfying opinion from four justices still counts as a loss.”

The question at the heart of the case was whether there would continue to be a meaningful limit on the power of the federal government to impose laws such as the Affordable Care Act on the states, Clement said. He said, “I do think in some respects, the single most important takeaway from the decision was there were not five votes to say that there really is no meaningful judicial review of federalism constraints on Congress. There are constraints—again, the power is very substantial, very broad in the wake of the New Deal precedents of the Court, but it remains a limited power.” Continue reading “Important Points Won Even as ACA Case Was Lost, Paul Clement Says”

Time to Finally Pass the Equal Rights Amendment?

Posted on Categories Civil Rights, Congress & Congressional Power, Constitutional Law, Feminism, Human Rights, Legal History, Public1 Comment on Time to Finally Pass the Equal Rights Amendment?

Equal-Rights-Amendment-imageIn 1776, as the founders were meeting to form the new government for the nation that would become the United States of America, Abigail Adams wrote to her husband John Adams and asked him “to remember the ladies” while drafting the governing documents.  She continued,

[B]e more generous and favorable to them than your ancestors [have been].  Do not put such unlimited power into the hands of husbands. . . . [I]f particular care and attention is not paid to the ladies we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation.

Quoted in Susan Gluck Mezey, Elusive Equality:  Women’s Rights, Public Policy, and the Law 5 (2011) (internal citations omitted).

John Adams responded, “I cannot but laugh . . . .” Id. To Mr. Adams, this was the first he’d heard of women’s possible discontent with the status quo.  “[Y]our letter was the first intimation that another tribe, more numerous and powerful than all the rest were grown discontented.” Id. For whatever “power” that Mr. Adams suggested that women had, it clearly wasn’t enough, for the new Declaration of Independence and Constitution failed to give any express (or even implied) rights to women.

Mrs. Adams responded to her husband, “I cannot say that I think you are very generous to the ladies; for whilst you are proclaiming peace and good-will to men, emancipating all nations, you insist on retaining an absolute power over wives.” Id. Continue reading “Time to Finally Pass the Equal Rights Amendment?”

Ban on Women in Combat: A Response

Posted on Categories Civil Rights, Congress & Congressional Power, Constitutional Law, Federal Law & Legal System, Feminism, Public1 Comment on Ban on Women in Combat: A Response

I recently had the opportunity to read Professor Mazzie’s post on the lifting of the ban on women serving in combat.  As a military officer with over 20 years of service to include a recent overseas deployment to a combat zone, I thought that I would offer my personal observations and opinions related to this matter.

First, while I personally have not served on the “front lines,” I generally agree with the lifting of the ban.  Since September 11, 2001, women have served alongside men in Iraq, Afghanistan, and many other places around the world.  The majority of women have served with great distinction and all of them who have served have made great sacrifices (let us also not forget about the sacrifices that their families have made).  As Professor Mazzie notes, since September 11, 2001, 152 women have made the ultimate sacrifice for the greater good of this country. 

As a person who enlisted as a Private in 1992, I have seen how the military has grown, matured, and become more professional over the years, especially since the rapid deployment of service members over the last 11 years.  Professor Mazzie entitles her post “Ban on Women in Combat Lifted: Is the Military Ready?”  For the reasons cited above, I do believe that the military is ready.  If the military is not ready at this point in time, after 11 plus years of overseas operations in which women have played a key role in the success of these operations, I personally do not believe that the military will ever be ready.  To put it simply, I believe that the timing is right and the lifting of the ban is the right thing to do. 

All that being said, I do believe that some of the arguments made by opponents of the lifting of the ban have some validity.  Continue reading “Ban on Women in Combat: A Response”

Ban on Women in Combat Lifted: Is the Military Ready?

Posted on Categories Civil Rights, Congress & Congressional Power, Federal Law & Legal System, Feminism, Public1 Comment on Ban on Women in Combat Lifted: Is the Military Ready?

This week, Defense Secretary Leon Panetta announced that the military’s ban on women in combat will be lifted.  According to the Department of Defense, 14.6% of the nation’s military is made up of women; according to The N.Y. Times and Huffington Post, more than 280,000 of them were deployed during the Iraq and Afghanistan wars.  While those women were banned from combat, they often saw combat action nonetheless, as they were attached to battalions in positions that sometimes came under fire.  Of the more than 6,600 troops killed in Iraq and Afghanistan, 152 of them have been women

There may still be some combat positions that women will not be allowed to fill; however, the presumption seems to be that all combat positions are open to women unless a particular branch of the military requests an exception and presumably has the burden to prove why women should not be so allowed.  Previous opposition to women in combat often revolved around concerns about women’s strength and whether their presence might hurt unit cohesion.  Clearly, not all women will be physically capable of certain assignments. But then again, neither are all men.  At least now, those women who are capable and who want to fill those assignments will have the opportunity to do so.  The argument about unit cohesion is also one that had long been made against allowing gays—and African Americans before them—to serve in the military.  That argument, too, has been debunked, and since 2012, LBGT soldiers can serve openly.    

Allowing women in combat opens up hundreds of thousands of new jobs for women and allows women the opportunity to climb the ranks in the military.  Without combat leadership experience, military advancement, regardless of the soldier’s gender, is limited.  In the past, this limitation disproportionately stifled women’s military careers.  No longer. As The New York Times reported, General Martin E. Dempsey, the chairman of the Joint Chiefs of Staff, stated in a letter that the lifting of the ban ensures “that women as well as men ‘are given the opportunity to succeed.’”

Despite the public support for allowing women in combat, there are those who oppose the idea, with one retired army general calling it “a vast social experiment in which hundreds of thousands of men and women will be the guinea pigs.” The decision, he maintains, is ideologically based and not militarily based. Continue reading “Ban on Women in Combat Lifted: Is the Military Ready?”

Lessons From Sixteen Years of the PLRA and AEDPA

Posted on Categories Congress & Congressional Power, Criminal Law & Process, Federal Criminal Law & Process, Legal Scholarship, Public, U.S. Supreme CourtLeave a comment» on Lessons From Sixteen Years of the PLRA and AEDPA

I have some reflections on the great 1996 prisoner litigation reforms in an essay newly uploaded to SSRN.  Here is the abstract:

In 1996, Congress adopted two sweeping statutes that were intended to restrict the ability of prisoners to obtain redress in federal court for violations of their constitutional rights. This essay introduces an issue of the Federal Sentencing Reporter assessing the legacy of these two laws, the Antiterrorism and Effective Death Penalty and Prison Litigation Reform Acts, and considers the extent to which these statutes highlight structural flaws in the way that the political and legal systems engage with prisoner litigation.

The essay, entitled “Not So Sweet: Questions Raised by Sixteen Years of the PLRA and AEDPA,” was published at 24 Fed. Sent. Rep. 223 (2012).

This Day in Legal History—Alabama Statehood and a New Era of Slavery Compromises

Posted on Categories Congress & Congressional Power, Constitutional Law, Legal History, Public, Race & Law, U.S. Supreme Court2 Comments on This Day in Legal History—Alabama Statehood and a New Era of Slavery Compromises

On December 14, 1819, Alabama was admitted to the Union as the twenty-second state. The admission itself was not especially remarkable. Various parts of present-day Alabama had been settled by the French (and later the British) since the early 1700s, and explored by the Spanish as early as the 1540s. The territory to the west, moreover, had already been admitted as the states of Mississippi (1817) and Louisiana (1814). Not least important, Alabama’s soil and climate were amenable to cotton production, which was accelerating due to technological innovation and increased demand, such that the years preceding Alabama’s statehood had seen substantial growth in the region’s population.

What made Alabama’s admission significant, politically and constitutionally, was the situation it then posed for Congress regarding the admission of subsequent states, particularly west of the Mississippi River. Specifically, the nation was now evenly divided between free and slave states, having eleven of each. Given a federal Senate based on equal voting for every state regardless of population, this resulting parity of free and slave states made the admission of any additional state an opportunity either to expand or to restrict slavery. The South especially perceived the need to maintain parity as its influence in the House of Representatives declined relative to the North, which was experiencing (and would continue to experience) more immigration as well as greater industrial and economic growth.

This dynamic, in turn, set the stage for a new era of anti- and pro-slavery compromises and eventually—as these compromises less and less alleviated sectional tensions—a rather bloody civil war. Continue reading “This Day in Legal History—Alabama Statehood and a New Era of Slavery Compromises”

The Health Information Exchange Deadline

Posted on Categories Congress & Congressional Power, Federal Law & Legal System, Federalism, Health Care, Public, Wisconsin Law & Legal System1 Comment on The Health Information Exchange Deadline

Friday’s deadline, November 16, calls for each state, including Wisconsin, to give the federal government a “blueprint” for a Health Information Exchange.  State exchanges compare the benefits and costs of insurance policies and post the results online so people and employers can choose which are the best values for them.  They will also make electronic patient records accessible for treatment and research for the public health.   As I noted in my election-eve blog post, exchanges (also called HIEs) are central to health care reform by making better consumer choices possible.

State blueprints would resolve such choices as whether the exchange will be a private non-profit company or a state agency, and what consent and protections are in place for patient privacy.  Overall, a state can choose whether its exchange will be run by the state, in a partnership with the federal government, or by the federal government.  If a state doesn’t provide a blueprint, its exchange will be formed and run according the rules and models in federal regulations that will be issued soon.  Continue reading “The Health Information Exchange Deadline”

What Happens if the Presidential Election Is a Tie?

Posted on Categories Congress & Congressional Power, Constitutional Law, Election Law, Public6 Comments on What Happens if the Presidential Election Is a Tie?

Suppose President Obama wins all of the electoral votes from (1) all of the Northeastern states except New Hampshire; (2) Maryland, Delaware, the District of Columbia, and Virginia; (3) all of the states that border on the Pacific Ocean except Alaska; and (4) New Mexico, Colorado, Minnesota, Illinois, and Michigan. Assume also that Governor Romney wins all of the electoral votes in the remaining 30 states. The results? A 269 to 269 tie, in terms of electoral votes.

What would happen then?

If, when the electors vote on December 17, each elector casts his or her ballot for the candidate each supported, the failure of any candidate to achieve a majority of the votes would be certified on January 6 by the President of the United States Senate, who is, of course, Vice President Joe Biden.

Under the terms of the 20th Amendment to the Constitution, the newly elected House of Representatives, which took office on January 3, will then vote to elect a President. Under the 12th Amendment, Congress is required to choose from the three candidates with the highest total of electoral votes from among those receiving electoral votes. Since under this scenario, only Romney and Obama receive electoral votes, the House would have to choose either Romney or Obama.

Under the terms of the Amendment, each state has a single vote, which is determined by how a majority of that state’s Representatives vote. This means that both Alaska and California would have the same one vote, and 26 votes would be necessary to elect a president.

Because of the 20th Amendment (adopted in 1933), those who vote would be the individuals who were elected to the House of Representatives in November 2012. Unlike the situation in 1800 and 1824, the only two times that the House has actually selected the president, the outgoing Congress no longer chooses the President.

Were the current members of the House of Representative voting, the line-up of Republicans and Democrats would clearly favor Gov. Romney, since the Republican Party currently controls 33 state delegations in the House compared to 15 by the Democrats, with two states evenly divided. Although anything can happen in November’s election, it seems unlikely that the Republican Party will control fewer than 26 state delegations in the new Congress.

The 12th Amendment also contains a quorum requirement that dictates that representatives from at least two thirds of the states (currently 34 states) have to be present and voting for the election to be valid. In theory, one political party could prevent the election of a president by boycotting the House vote, but that strategy would work only if the boycotting party included in its ranks the entire Congressional delegations of 17 states.

That is unlikely to happen; in the current Congress, the Republicans unanimously control only 9 state delegations and the Democrats only 7. Hence, if all the House Democrats were to boycott the election, Romney would be elected by a vote of 43 states to none. Similarly, if all the Republicans were to absent themselves from the House chamber, Obama would win by a vote of 41-0. In either case, the quorum requirement would be met.

While the House of Representatives is choosing the new President, the Senate is charged by the 12th Amendment with electing the Vice-President from the top two finishers. In this election, each Senator gets one vote (and thus, unlike in the House, there is no direct voting by state). The current Senate line-up of 51 Democrats, 47 Republicans, and 2 (Democrat-leaning) independents would point toward the election of Joe Biden over Paul Ryan. Of course, that balance could change as a result of the November 2012 elections.

If by chance the vote splits 50 to 50 between the two candidates, Senate President Joe Biden (who will still be Vice President until January 20, 2013, no matter what happens in the fall election) could then vote (presumably for himself) to break the tie. If the House proved unable to elect a new president by January 20, the new Vice-President would assume the office of President until the House finally made a decision.

It is, however, possible that a 269-269 deadlock on November 6 could be broken before the ballots are counted on January 6, if either an Obama or Romney elector were to decide to cast his or her vote for the other candidate.

Can electors do that? The short answer is yes. Although electors pledge to vote for the candidate that they are listed as supporting on state ballots, nothing in the Constitution requires them to cast their vote consistent with their listing on the November ballot.

Although 29 states and the District of Columbia have laws that appear to require electors to vote for the candidates for which they are pledged, only a minority of these states impose a penalty on electors who vote for other candidates, and only the Michigan and Utah statutes purport to nullify the stray vote and provide for the appointment of a replacement elector. Moreover, it is widely believed by constitutional scholars that such state laws are an unconstitutional interference with the federal election process.

Wisconsin is among the states that have such a statute, which can be found at Wis. Stat. § 7.75. This statute provides only that electors are required to vote for the candidate to whom they are pledged unless the candidate is deceased at the time of the vote or that both the president and vice-president are residents of Wisconsin. (The 12th Amendment prohibits electors from casting both their votes for candidates from their own state.) The Wisconsin statute, however, imposes no specific penalty on an elector who violates the terms of § 7.75. Some jurisdictions do impose fines on disloyal electors, and in a few states, the departure is treated as a criminal offense.

This phenomenon—electors casting ballots for candidates other than the one to whom they pledged their support–has happened more frequently in the past than most Americans realize. In 18 of the 55 United States Presidential elections since 1789, at least one elector has either cast a vote for a Presidential or Vice-Presidential candidate to which he was pledged or else refused to cast his or her vote altogether.

The mid-twentieth century was a time when electors acted independently with particular frequency. In the eight Presidential elections between 1948 and 1976, defecting electors cast ballots in six different elections.

Even though disloyal electors have been a somewhat regular occurrence, there is very little evidence that electors who have voted for someone other than the candidate to whom they are pledged have done so because they were trying to help a different major candidate secure election.

The only example of an elector doing this came in 1796, when the Constitution’s original plan for the Electoral College was still in effect. Under the original Article II of the Constitution, there was no separate balloting for President and Vice-President. Instead, each elector cast two votes, and the candidate with the largest number of votes became the President and the runner-up became the Vice-President, so long as their vote totals were equal to a majority of the number of electors voting.

(Otherwise, the House would choose the President from the five top vote getters, and after a president was chosen, the losing candidate with the largest number of electoral votes would become Vice-President. There were also provisions that allowed the House and Senate to select a President or a Vice-Present when two candidates tied for the most electoral votes. That, of course, is what happened in the 1800 election.)

In 1796, Samuel Myles, a Federalist elector from Pennsylvania, cast one of his two votes for the Democratic-Republican presidential candidate Thomas Jefferson and apparently did not vote for his own party’s principal candidate, John Adams. Myles’ betrayal of his constituents didn’t end up making a difference as Adams was elected President anyway.

However, Adams’ margin of victory over Jefferson was only three electoral votes, so it is easy to imagine a scenario where Myles’ vote could have made a difference. (Jefferson, as runner-up in the presidential election, became the Vice-President.)

The most common reason from casting a vote for a different candidate appears to have been a desire to express disapproval of the elector’s own party’s choice of a candidate for either President or Vice-President. In nine different elections–1808, 1812, 1828, 1832, 1836, 1896, 1956, 1976, and 1988—one or more electors voted for a different member of their political party, rather than the party’s official candidate.

On two occasions, 1832 and 2000, electors simply abstained from voting for their party’s candidate (or anyone else). In 1820, William Plumer, a Democrat-Republican elector from New Hampshire, declined to vote for his party’s candidates, incumbent President James Monroe and Vice-President Daniel Tompkins. Plumer instead voted for his friend, Secretary of State John Quincy Adams for President and United States Ambassador to Britain, William Rush as Vice-President, even though neither Adams nor Rush were candidates for those offices. Although Plumer later claimed that he did this so as to ensure that George Washington remained the only man unanimously elected President of the United States, it seems more likely that the former Federalist Plumer was dissatisfied with the continuation of the so-called “Virginia Dynasty” through which the Democrat-Republicans had controlled the presidency since 1801, and instead cast his votes for his fellow former Federalists, Adams and Rush.

In two elections, deviations resulted from the deaths of candidates for President (Horace Greely in 1872) or Vice-President (James Sherman in 1912) after the November election but before the day of the Electoral College vote. (A majority of electors still cast their votes for the deceased candidates in both elections. Both Greeley and Sherman lost their respective elections, so the actual division of their votes was unimportant.)

The variety of motives of dissenting electors can be seen in the elections since 1948. That year, elector Preston Parks of Tennessee cast his electoral vote for South Carolina Governor Strom Thurmond, a fellow conservative Southern Democrat, who had announced his candidacy for the Presidency under the banner of the National States Rights Party. (Parks had already been appointed a Democratic elector before Thurmond announced his third party candidacy, and Thurmond did carry several Southern states.)

Similarly, in 1956, Democratic elector W. F. Turner of Alabama cast his vote for a personal friend Walter Jones, who was an Alabama Circuit Court judge for President and Georgia Governor Herman Talmadge as Vice-President, as a way of protesting the supposed liberalism of Democratic Party nominees, Adlai Stevenson of Illinois and Estes Kefauver of Tennessee.

In 1960, Oklahoma Republican elector Henry D. Irwin cast his ballot for Sen. Harry F. Byrd of Virginia, who was otherwise not a candidate, to protest his dislike of Richard Nixon. (A number of Democratic electors from the South, who were elected as “uncommitted” Democratics, also voted for Byrd, a prominent conservative Democrat.)

In 1972, Roger MacBride, a Virginia elector, cast his Republican ballot for the Libertarian candidate John Hospers, apparently in protest of the economic policies of the Nixon Administration. In 1976, Mike Padden, a Republican elector from Washington State, cast his ballot for Ronald Reagan, instead of his party’s nominee, Gerald Ford, apparently to express his belief that the Republican Party might have won the 1976 election had it nominated Reagan rather than Ford.

In 1988, Margaret Lynch, a Democratic elector from West Virginia, switched her votes so that she voted for Vice-Presidential candidate Lloyd Bentsen for President and Presidential candidate Michael Dukakis for Vice-President. Lynch’s effort was apparently intended to express her dissatisfaction with Dukakis as a candidate. Finally, in 2000, Democratic Elector Barbara Lett-Simmon of the District of Columbia refused to cast her ballot for anyone, as a form of protest over the Supreme Court’s decision in Bush v. Gore which effectively awarded the 2000 presidential election to George W. Bush.

Except for the example of Samuel Myles back in 1796, none of the other elections shed much light on what might happen to break a 269-269 deadlock in 2012. Of course, an elector that decided to vote for someone other than Romney or Obama would not change the outcome. For example, if a Republican elector from Florida decided to cast his vote for Mario Rubio, rather than Romney, Obama would have one more electoral vote than Romney, but he would still lack a majority of the votes, so the election would still go to the House of Representatives, which could now choose between Obama, Romney, and Rubio.

What, if anything, might prompt an Obama or Romney elector in 2012 to switch his or her vote to the other candidate?

One possibility is that an elector might feel that the candidate who received the largest percentage of the popular vote should be president, especially if the gap between the two candidates was more than one or two percentage points. So, for example, if Romney received 53% of the popular vote and Obama received only 46%, with 1% going to minor party candidates, an Obama elector might feel obligated to vote for Romney. Most likely, much of the public would herald such a decision (especially the 53% of the population that voted for Romney).

Another possibility is that some sort of backdoor political deal might be arranged so that an individual elector or his or her state might benefit by the vote switch, although this would have to be done quite delicately in order to avoid a public relations disaster of the first order. Americans would not take kindly to the idea that the presidency had been purchased.

Is any of this likely to happen in 2012? Probably not, but in less than a week we will know for sure.




The Individual Mandate: A Rejoinder

Posted on Categories Business Regulation, Congress & Congressional Power, Constitutional Interpretation, Constitutional Law, Health Care, Public17 Comments on The Individual Mandate: A Rejoinder

Last week, Ed Fallone posted his prepared remarks at our debate on the constitutionality of the individual mandate in the health care law. Inspired by his example, I have – after a fashion – cleaned up my notes for last week’s debate. This is how I see it.

When Nancy Pelosi was asked about the potential for a constitutional challenge to the health care law, her response was “you’ve got to be kidding.” The substance of her response – “look, we used the commerce power and that permits us to do almost whatever we want” – reflected large patches of conventional wisdom.

Many lawyers (particularly those trained before the Rehnquist Court began to push back against an unlimited commerce power) and, in particular, Progressive legal academics thought that this dragon had been slain long ago. They assumed that the idea that there might be structural limits on the federal constitution had been relegated to the status of flat earth creationism and alchemy.

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