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Legislating away the Electoral College?  Not Likely.

11/18/2016

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One of the critiques that is levied against the Supreme Court is that is is countermajoritarian.  That is, nine unelected justices can overturn legislative passed by - and signed into law by - elected representatives, or taking a more strategic view of the Supreme Court, only five justices - a simple majority of the nine that are traditionally on the Court - are sufficient to determine that a statute is invalid.  This immediately raises questions about the nature of a representative democracy and whether an result that contraverts the majority is legitimate.

In 2000, in the Presidential election contest between Governor Bush and Vice President Gore, Bush famously won the presidency, and Gore famously won the popular vote.  While the final vote has yet to be tallied in the 2016 Presidential election, it is known that Sec. Clinton lost the election, but is is increasingly likely that she will win the popular vote (While electoral behavior and shifts of demographics are important and especially so as both parties seek to define themselves and their bases going forward, they are not the focus of this post, or this blog.  It is worthy to note, however, that the census will be performed in 2020, and per Article I, Section 2, Clause 3 of the Constitution, the census shall determine representation, which, in turn, determines each state's elecoral votes), which may affect how the popular vote correlates with the electoral vote).

In the wake after the election, there has been a noticible uptick of interest in discussing the origins of the Electoral College and whether it should continue to exist in its current (or any) form.  The Republicans will hold both houses of Congress and the Presidency, in addition to over thirty state houses (though not 3/4 of the Legislatures of those states), and it arguably would not be in their interest to pass legislation that would eliminate the Electoral College, as they won under the current system.  More likely than reform under a Republican Congress and President, could state legislatures pass acts that reapportion how they assign their electoral votes?

Could a federal or state bill be passed and signed that served to eliminate the Electoral College?  Likely not.  In the event of state action, interstate compacts - agreements among and between states - need the consent of Congress, per Article I, Section 10, Clause 3.  Essentially how these compacts would work is that states, who cumulatively possess 270 electoral votes, would agree that they would give their entire apportionment of votes to the candidate who wins the national popular vote, instead of the state popular vote (as currently exists in a pure form in forty-eight states and in a partial form in the other two).  At present, ten states and the District of Columbia have signed on to the compact, which would trigger once the states who joined possess 270 electoral votes.  However, this compact likely runs afoul of two separate provisions of the Constitution.  In addition to potentially violating the Compact Clause, as described above, it also potentially is an invalid attempt to amend the Constitution from the state level, as an insufficient number of states would agree with such a compact as to trigger an amendment.  Similarly to a state action, a federal action to amend the Electoral College arguably runs afoul of one of the stronger arguments that the States claim for their right to amend the Electoral College, that Article II establishes the plenary power of the states to appoint their electors in any manner as they see fit.

Where does this leave what has been termed the "National Popular Vote Interstate Compact"?  Firstly, it certainly is not a product of the 2016 election.  This Compact has been trying to build momentum for a number of years, and it is gaining notoriety in the past few weeks due to the election.  Secondly, it is an important issue, as voters (primarily Democratic voters) see that the President of the United States, two times in the past sixteen years, has not been elected by a majority (or a plurality) of the people who voted in the election.  While such an attack does not seem to undermine the legitimacy of the elected president, as the constitutional processes in place (the Electoral College) were used properly, it becomes a strategic point, as at present, the ten states and the District of Columbia who affirmed the Compact are all traditionally Democratic jurisdictions.  Regardless of the partisan differences currently on display, and the seeming partisan allegiance to modifying the Electoral College (though bills to modify it have passed through Republican state legislatures), a modification to the Electoral College, in all likelihood, needs to come through as a Constitutional amendment, and not through a lesser, though potentially more expedient way.

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"Disqualified"?

11/1/2016

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To be "disqualified" is, according to Oxford Dictionary, to Pronounce (someone) ineligible for an office, activity, or competition because of an offense or infringement.‘  But, in the context of the Presidential election, what does it mean to be "disqualified"?  Were someone to listen to representatives from both major parties, the opposition party candidate is disqualified to be President of the United States.  White House Press Secretary Josh Earnest, referencing comments made by Mr. Trump concerning a temporary ban on Muslims entering the United States, said "What Donald Trump said yesterday disqualifies him serving as President."  Similarly, during a debate during the Republican primaries, Sen. Rubio, referencing Secretary Clinton's record at Benghazi, said that she "is disqualified from being commander-in-chief of the United States."  What makes a candidate constitutionally infirm to be President of the United States?

From a Constitutional perspective, it is a strange term, because the Constitution is (somewhat) clear about what the requirements are to be President.  That is, the rulebook lists the three rules that must be followed, and if any of them are violated, that makes that particular individual no longer qualified to be President of the United States.  Found in Article II, Section 1, Clause 5 (and as a side note, you can go to your local Congressperson's or Senator's office and request a free copy of the Constitution!),
“No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.”

1. No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President - This criterion offers two avenues to citizenship.  The latter expired at the signing of the Constitution, and the former has been discussed at great length, beginning with President Obama, but also in the context of Sen. Cruz in the current election cycle, and in both cases, revolving around the birthplace and citizenship of each individual.  It is undisputed that both Sec. Clinton and Mr. Trump are citizens of the United States.

2.  No person shall be eligible to [the office of President] who shall not have attained to the age of thirty-five years - I examined over two-hundred years of Supreme Court case law in researching this point, but there has not been one case involving a challenge to the President on the basis of not having the requisite age.  The youngest President was Theodore Roosevelt (26th President, 43 years old), but there has been no challenge to this provision, and at 69 and 70 years old, respectively, Sec. Clinton and Mr. Trump are both qualified in this regard.

3. No person shall be eligible to [the office of President] who shall not have been fourteen Years a resident within the United States - 
There is some evidence that the Framers believed the fourteen-year residency requirement could be satisfied cumulatively, rather than consecutively.  An earlier version of the clause excluded individuals who have "not been in the whole, at least fourteen years a resident within the U.S." (emphasis added), and historical evidence suggests that deletion of the phrase "in the whole" was not intended to alter the provision's meaning.  President Hoover, whose successful 1928 campaign won him the Presidency, came less than fourteen years after his return to the United States from foreign residency in 1917.  Relevant to the modern day, there may be unsettled law about whether an individual who serves in the military or State Department and resides overseas would be eligible for the Presidency due to this clause.  However, in this election, both Sec. Clinton and Mr. Trump appear to meet this criterion.

On its face, at least, both candidates appear to meet every legal requirement for the Presidency.  Glaring by their absence from this list are extra-legal characteristics that are commonly attributed to be disqualifying, including, bit not limited to not having charisma, or having a scandal or being ill-tempered.  However, there exist other legal barriers in addition to that which is listed in the Constitution.  Relevant to Sec. Clinton, 18 U.S.C. 2071 is sometimes cited as a statute which may disqualify her from service.  Titled "Concealment, removal, or mutilation generally," the statute states that "Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same [...] shall forfeit his office and be disqualified from holding any office under the United States."  To be clear, this is a federal criminal statute that would require a prosecution under it, and a conviction by it, to even begin to be relevant, but to the notion of creating additional requirements to discern a President, it is relevant now.  

In a wholly separate series of cases involving term limits, the states, and specifically, Arkansas, tried to add requirements on top of those set forth in the Constitution.  In essence, Amendment 73 to the Arkansas Constitution prohibited anyone from appearing on a ballot who had already served two terms in the U.S. Senate or three terms in the U.S. House of Representatives.  A candidate argued that the amendment violated Article 1, Section 5 of the Constitution, arguing that the Constitution establishes sole qualifications for federal office and they can not be altered by the states.  Faced with the question of whether the states may alter the requirements set out in the Constitution for Members of Congress, the Supreme Court, by a vote of 5-4, the Court concluded that the Framers intended the Constitution to be the exclusive source of qualifications for Members of Congress.  While this case dealt with the states, and the Court, to some degree discussed the Tenth Amendment, the ratio decendi of the opinion was this notion that the Constitution is the full and complete list of requirements to run for office.  

Translating that analysis to 18 U.S.C. 2071, a similar argument can be made that would hold the statute invalid as creating additional burdens and requirements on top of what the Constitution requires.  The three requirements in the constitution are negative requirements - "who shall not have reached..." - and it could be argued that the Framers could have contemplated excluding persons with convictions from running as a fourth negative requirement, but that the exclusion of that requirement and the inclusion of the other three provides evidence that the statute may be an unconstitutional addition to the constitutional requirements.

Is one candidate or the other Ill-qualified for the Presidency?  Perhaps, depending on your perspective and belief, but likely not "disqualified."  For why such a distinction matters, go to the second part of this post here.

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    Dr. Allen Linken

    Assistant Professor of Political Science.  
    Military Law Practitioner. Supreme Court Watcher. 

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