The Constitution and Elections - Part 1

Voter Confidence at Risk

There are lots of things being written about election reforms to fix the problems of the 2004 election - and its still 10 days away. In this article, Jill S. Farrell, communications director for the Free Congress Foundation, seems to start on a promising note.

"Here is some historical perspective: Our first disputed election occurred in 1800. It was our fourth election. In that election the Federalists nominated John Adams for president and Charles Pinckney for vice president. Thomas Jefferson was nominated for president and Aaron Burr as vice president by the Democratic-Republicans.

"Each elector was to vote for two candidates without specifying who was to be president or vice president; Jefferson and Burr were assigned the same number of electoral votes. Without a majority of electoral votes, the House of Representatives decided the election. In seven days the House voted 36 times. On the 36th go-round Jefferson was chosen by a slim margin.

"There was a call to amend the constitutional provision requiring double balloting for president and vice president. It was eliminated by the passage of the 12th Amendment, which was approved by Congress in December 1803 and ratified in time for the election of 1804.

"So you see, it can be done! We can prevail over election process issues."

As the editors at Composure* might say, "historical and complicated, but surprisingly upbeat." What it lacks of course is any acknowledgement that the constitution worked exactly as it was supposed to in the election of 1804. It is also the last time the article makes any mention of the constitution.

The 12th Amendment

Let's dispose of the 1804 crisis first. When the constitution was written and ratified there were no political parties as we now know them and hardly anyone who thought there ought to be any. No provision was made for separate voting for vice president because no one thought any self-respecting man would propose himself, of be proposed, for the inconsequential office of vice president. After two uncontested elections, George Washington retired and the centralizers put forward his VP John Adams as the Federalist candidate and the states' rights defenders lined up behind Washington's secretary of state Thomas Jefferson as the Democratic Republican candidate. The result in 1796 gave Adams the presidency and Jefferson the vice presidency by a margin of only three electoral votes. The system worked eactly as it was hoped, both positions were occupied by men widely believed capable to be president.

By 1804, the modern two-party system was really taking shape and the idea had taken hold that a party ought to propose a candidate for vice president as well as president to expand its influence if successful, and that resulted in every elector for the Jefferson-Burr ticket voting for both and no elector not selected by their adherents backed either of them resulting in a tie between them with President Adams in third place. When the election fell to the House of Representatives, Burr double-crossed Jefferson and tried to claim the presidency for himself which resulted in the marathon House session that eventually produced a majority of states for Jefferson. It was Burr's faithlessness and the lack of party cohesion that gave the impetus for the adoption of the 12th amendment.

The US Constitution and Elections

The defect of Ms. Farrell's article is that the section quoted above is the only mention of the role of the constitution. So, what is written about elections in that document which seems to be fading from sight more and more with each passing year?

In general, the constitution imposes a few duties on the states and assigns some very few responsibilities to the Congress.

Art. I, Sec. 2, Para. 1. Says that members of the US. House must be chosen by the same body of voters in each state who choose the members the most numerous branch of the state legislature. Para. 4. Says the executive authority of each state must call a special election to fill any vacancy in that state's delegation.

Amend. 17, Sec. 1. Sets the same voting qualifications for Senators as for Representatives. Sec. 2. Sets the same method of filling vacancies as for Representatives, except that the state legislature may give its executive the power to make temporary appointments.

Art. I, Sec. 4, Para. 1. Says the "times, places and manner of holding elections" shall be determined by the state legislatures, but that Congress, by law, may decide those issues, except as to the place where senators are chosen. [That last clause no longer makes much sense after adoption of Amend. 17.]

Art. 1, Sec. 5, Para. 1. Says each house shall judge the elections, returns, and qualifications of its own members.

Art. !!, Sec. 1, Para. 2. Gives to the respective state legislatures the power to determine how electors for president and vice president shall be chosen, and provides that no member of congress or person holding any federal office can be chosen. Para. 3. Provides that congress may set the time for choosing electors and a uniform date for them to meet and vote in their respective states.

Amend. 12. Deals with the mechanics of voting in the electoral college, and the transmitting and counting of those votes.

Amend. 14, Sec. 2. Provides that if voting rights are denied in any state, the basis of that state's representation in the US House shall be reduced proportionally. [That is, if 20% of the eligible population are prevented from voting, the population of that state as determined in the census would be reduced by 20% for purposes of apportioning members of the House.]

Amend. 15. Says the right to vote shall not be abridged by the federal or any state government on the basis of race, color or past servitude. Amend. 19. says the same with respect to sex. Amend. 23. Authorizes congress to specify how electors of president and vice president shall be chosen for DC and specifies how the number of electors for DC is determined. Amend. 24. Forbids states to require payment of a poll tax or any other tax as a condition of voting in any primary or general election for president or vice president, presidential electors, or for senators or representatives in congress. Amend. 26. Parallels numbers 15 and 19 in setting the voting age as 18.

This is getting rather long, so I'll return to this subject in a day or two and discuss how the current situation and various reform proposals fit into this constitutional fremework, or not.
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*Composure, the fictional magazine where Kate Hudson's character works in the romantic comedy "How to Lose a Guy in 10 Days," where even articles about scary diseases had to be "upbeat." One of the finest films of its type in recent years.