WE NEED A CONSTITUTIONAL RIGHT TO VOTE IN PRESIDENTIAL ELECTIONS

By MICHAEL C. DORF
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Wednesday, Dec. 13, 2000

If you thought the Electoral College was an undemocratic Eighteenth Century relic, you should look at the rest of what the Constitution has to say about how we pick a President.

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Amidst the divisiveness of the United States Supreme Court's second foray into the 2000 Presidential election, it is easy to overlook the significance of the Court's earlier, unanimous ruling of December 4, 2000. A close reading of the decision in that case, Bush v. Palm Beach County Canvassing Board, reveals a clear consensus for what will strike many Americans as an outrageous proposition: there is no constitutional right to vote in a Presidential election. The fact that the state in which you reside even permits you to vote for electors is purely a matter of legislative grace.

That needs to change. The Constitution should be amended to ensure that voting in Presidential elections is a matter of right, not a matter of grace.

The Single Precedent Upon Which the Supreme Court's Opinion Turned

The Supreme Court cited exactly two of its own prior precedents in the Palm Beach County case, in which it reviewed the Florida Supreme Court's decision ordering Secretary of State Harris to accept manual recounts past the statutory deadline.

One of these precedents is the 1940 case of Minnesota v. National Tea Company, which the Court cited for the unremarkable proposition that when the grounds for a state supreme court decision are unclear, the U.S. Supreme Court may send the decision back for clarification. The other precedent is the Court's 1892 decision in McPherson v. Blacker.

One of the principal reasons the U.S. Supreme Court sent the case back to Florida for clarification was that it was unable to tell whether the Florida Supreme Court's decision had violated the Constitution, as interpreted in McPherson. Article II, § 1, clause 2 of the federal Constitution gives to each state the power to appoint its Presidential electors "in such Manner as the Legislature thereof may direct." McPherson interprets this language to give state legislatures plenary authority to appoint electors — authority that is apparently unbounded even by state constitutions.

McPherson was the basis for the U.S. Supreme Court's unanimous ruling sending the Florida Supreme Court's first decision back for clarification. It was also the basis for the U.S. Supreme Court's controversial split decision stopping the manual recounts subsequently ordered by the Florida Supreme Court. In both cases, the U.S. Justices worried that the Florida Justices were not strictly following the dictates of the Florida legislature, and thus interfering with the latter's plenary power.

Yet McPherson's ruling that a state legislature has plenary power over elections is deeply troubling, in light of developments over the last century. For it implies that states may dispense with Presidential elections entirely.

What McPherson Actually Held

The actual holding of McPherson is rather narrow. An 1891 Michigan statute provided that some of the state's Presidential electors would be chosen from geographic districts, rather than on a state-wide basis. The statute was challenged on the ground that this system violated Article II, § 1, clause 2 of the federal Constitution, which requires the appointment of electors by the "state."

The petitioners argued that the word "state" meant elections had to be decided by the whole state — not by districts thereof. But the Court rejected this argument, noting, among other things, that there was a long tradition of states choosing electors in districts, rather than state-wide.

Of course, the permissibility of district-based elections was not at issue in the recent Palm Beach County case. Florida, like every state except Maine and Nebraska, apportions all of its electors to the winner of the state's popular vote, not on a district-by-district basis. Why then did the U.S. Supreme Court invoke McPherson? Because in the course of reaching its holding, McPherson also made broader pronouncements about the role of state legislatures in directing the manner of selecting electors.

Specifically, McPherson said that state legislatures have virtually unlimited power to designate the manner of selecting Presidential electors. The Court stated, "[t]he Constitution does not provide that the appointment of electors shall be by popular vote . . . and leaves it to the legislature exclusively to define the method of effecting the object." (emphasis added). The Court then noted the variety of methods for selection of Electors that the state legislature could designate, including selection "by the legislature itself . . . ."

The petitioners had also argued that the Fourteenth and Fifteenth Amendments confer a right to vote in Presidential elections. But in McPherson, the Court rejected that contention. It stated that the right to vote in Presidential elections is not protected by the Fourteenth Amendment, even though Section Two of that Amendment speaks of denials of "the right to vote at any election for the choice of electors for President and Vice President of the United States."

The Court also said that the Fifteenth Amendment merely states an anti-discrimination rule: If a state chooses to select Presidential electors by a vote of the citizens of the state, then it may not exclude people on the basis of race, color, or previous condition of servitude. However, the state has no obligation to hold elections for President in the first place.

Other Constitutional Amendments

Strikingly, most of the amendments to the Constitution since the adoption of the Bill of Rights in 1791 have involved changes in election proceedings. Thus, even if we accept the McPherson Court's contention that the election-related amendments in place by 1892 — namely, the Twelfth, Fourteenth, and Fifteenth — leave the decision whether to hold a Presidential election wholly in the hands of state legislators, surely the 20th century amendments make a difference.

Or do they? In fact, these amendments, too, succumb to the 18th and 19th century logic of McPherson. The Nineteenth Amendment extended the franchise to women, but it only provides that their right to vote "shall not be denied . . . on account of sex." If a state has no popular election for President at all, then the denial of the right to vote is not on account of sex (for men and women alike cannot vote), and the Nineteenth Amendment is not violated.

Likewise, the Twenty-Sixth Amendment protects the right to vote of citizens eighteen years or older, but only against age discrimination — and again, the wholesale denial of the right to vote to all state citizens is not discriminatory.

And perhaps most tellingly, the Twenty-Third Amendment, which extends the right to send Presidential electors to the District of Columbia, does not require that electors be selected by vote. Instead, it authorizes the selection of electors from D.C. "in such manner as the Congress may direct."

The Twenty-Fourth Amendment may provide the best argument for a constitutional right to vote in Presidential elections. It states: "The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax." If a state cannot constitutionally tax its citizens as the price of voting in a Presidential election, then can it constitutionally take the more drastic step of entirely denying them the right to vote — in effect imposing an infinite tax on voting?

Unfortunately, the Supreme Court's recent reinvigoration of McPherson suggests that the answer is yes. Once again, the logic of that case would indicate that the decision whether to hold Presidential elections is entirely within the state legislature's discretion. If the state legislature makes that choice, then, but only then, does the Twenty-Fourth Amendment come into play.

In short, none of these amendments — if one accepts McPherson's logic — establishes a constitutional right to vote. Instead, according to McPherson, each places limitations on how voting may occur if and only if the state makes the initial choice to hold an election; the amendments say voting will be non-discriminatory and free of charge — if, that is, we are allowed to vote at all.

The Right to Vote Jurisprudence

In relying on McPherson in its Palm Beach decision, the Supreme Court not only dispatched a century of constitutional amendments; it also failed to discuss its own transformative precedents protecting the right to vote.

In its landmark ruling in Reynolds v. Sims (issued in 1964, the same year that the Twenty-Fourth Amendment was adopted), the Court held that substantial deviation from the principle of one-person-one-vote in state legislative apportionment violates the Equal Protection Clause of the Fourteenth Amendment.

Since then, the right to vote has been repeatedly characterized by the Court as "fundamental." Yet the Court's cases have also demonstrated that the right to vote is an odd sort of fundamental right — one that can only be afforded on a strictly equal basis, but that need not be afforded at all.

To some extent, this makes good sense. For example, if a state holds elections for the office of attorney general or for trial court judges, it cannot deny or dilute the right to vote in these elections on an illicit basis. However, if a state constitution gives the governor the power to appoint the attorney general or state judges, so that no elections for these offices occur at all, then that cannot reasonably be characterized as a denial of the right to vote. In short, the right to vote does not inevitably imply a right that any given office must be elective.

But even acknowledging that the federal Constitution does not require that any particular state officer be chosen by popular election, one might have thought that the Presidency was different. The Supreme Court's decision in the Palm Beach County case rather strongly implies that it is not: A state legislature can decide whether its citizens will vote for President, no less than it can decide whether they will vote for the state treasurer or local sewer administrators.

Implications for the 2000 Presidential Election and Beyond

Because it served as the principal basis for the Supreme Court's 5-4 order staying the hand recounting on December 9, McPherson's interpretation of the Constitution has already played a decisive role in the 2000 election. Had events played out slightly differently, it might have also demonstrated — and may yet demonstrate — the fragility of our right to vote itself.

The Florida legislature has decided to name its own slate of electors for Governor Bush regardless of whether recounts show that Vice-President Gore won more votes in Florida. Although Florida Republicans have publicly defended this move as designed to prevent "disenfranchisement" of Floridians, the opposite is more nearly true. The real mandate for legislative action —if there is one — comes from the legislature's power to substitute its own will for that of the people of Florida.

Such a substitution strikes many of us as deeply offensive to modern understandings of democracy. But it appears that our Constitution does not require such modern understandings.

To be sure, the decision by the Florida legislature to appoint its own electors might violate federal statutory law. 3 U.S.C. § 2 provides: "Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct." By implication, a state legislature may not name a slate of electors when it has held an election that did result in a choice on the day prescribed — even if it takes over a month to figure out what that choice was.

However, there is one more wrinkle. Given the McPherson Court's view that the Constitution gives the state legislatures plenary power over how to choose electors, there is a real question whether 3 U.S.C. § 2 can constitutionally limit that power. To the extent it does, the statutory provision may be invalid.

Whatever the resolution of these delicate questions, the Supreme Court's Palm Beach County decision has spotlighted a substantial deficiency in our Constitution as currently understood: We have no constitutional right to vote for President — or even for Presidential electors. That should change.

Of course, in many parliamentary systems of government, the people do not directly vote for the head of government, and so there is nothing inherently undemocratic about an indirect choice (through elected legislatures, not direct vote). But there is a substantial difference in national self-understanding.

We do not live under a parliamentary system of government, and Presidents often claim authority — a "mandate" — for their actions on the ground that they alone have been chosen by the whole body of the American people. It is time for a constitutional amendment that makes the truth of that claim more than a matter of state legislative whim.


Michael C. Dorf is Vice Dean and Professor of Law at Columbia University. He is co-author, with Laurence H. Tribe, of "On Reading the Constitution." Currently, he is working with Charles F. Sabel on a book, "Democratic Experimentalism," to be published by Harvard University Press.

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