Three Key Developments Relating to the Election and the Constitution: The National Popular Vote Plan, a Mississippi's Court's Special Election Mandate, And the Challenge to Nevada's "At Large" Caucus Site Rules

By VIKRAM DAVID AMAR

Thursday, Jan. 17, 2008

With election season in full swing, I offer in this column some thoughts on three recent national constitutional/electoral developments: First, New Jersey signed on to the so-called National Popular Vote plan. Second, a court in Mississippi directed state Governor Haley Barbour, under state law and the Seventeenth Amendment, to set the special election to replace U.S. Senator Trent Lott (who resigned in late 2007) sometime in the next few months, rather than on November 4 as Governor Barbour had planned. Third, a lawsuit (which is literally being processed as this column is being posted) has been brought to challenge the representation rules governing the so-called "at large" Nevada caucus sites along the Las Vegas strip.

National Popular Vote Plan Developments

I have written (on this website and elsewhere) about the virtues of a system in which the candidate who garners the most general election votes nationwide becomes President, and about a process of coordination between states that could bring about such a result even without amending any provision in the Constitution. As I and others have argued, participation by as few as eleven states (if they were the most populous eleven) could effect such a change.

Over the past few years, an underpublicized but persistent effort in this regard has been underway in state legislatures and governors' offices across the country. Last week, New Jersey became the second state, joining Maryland, to commit to the plan (which under the plan's own terms will take effect only after the requisite number of states, whose electoral college allotments total at least 270 - the number needed to win the electoral college -- have expressed their desire to act accordingly). New Jersey Governor Jon Corzine signed the legislation Sunday that would deliver the State's 15 electoral votes to the winner of the national popular vote (again assuming enough other states have pledged to do the same), regardless of which candidate received the most votes in New Jersey. Counting Maryland's 10 electoral college votes, there are now 27 such votes pledged to the plan.

Perhaps more exciting, the movement may have traction in other significant states as well. The California legislature passed the measure, only to have Governor Schwarzenegger veto it. However, Schwarzenegger may get a chance to change his mind if the measure is re-passed and presented to him. California has 55 electoral votes, so its participation alone would move the plan substantially towards the magic 270 number. The plan has also passed both houses of the legislature of Illinois (a state with 21 electoral college votes), and has been approved by at least one house in North Carolina (15 votes), Colorado (9 votes) and Arkansas (6 votes).

Although the issue is apparently being fought out on partisan lines (with Democrats supporting the measure, and Republicans opposing it), there is no inherent partisan skew to the proposal, at least at this point in American history and demography. While Al Gore won the popular vote but lost the electoral college in 2000, conventional wisdom had instead expected George Bush to be more likely victimized by such a popular/electoral college vote inversion.

Consider also 2004's results. George Bush won both the electoral college vote and the nationwide popular vote -- which he took by 3.5 million votes (or so) - over John Kerry. But, again, inversion in a way that would have hurt Bush was a real possibility.

Suppose that the weather in Ohio had been better, or that Kerry's campaign had been ever so slightly more effective there. Then Kerry might have picked up an extra 125,000+ votes in that state, edged out President Bush in the electoral college, and won the election. Yet he still would have been behind by over 3 million votes in the nationwide popular vote tally.

Nor is there any force to the criticism that the National Popular Vote plan is, as some Republicans (for example, New Jersey Assemblyman Richard Merkt) have charged, "a backdoor end-run of the federal Constitution." Putting aside the mixed metaphor, there is nothing devious or illegitimate about states exercising the power that Article II gives them to decide on what basis to use their electoral college allotments. Such discretion by states, and the people in them, is perfectly in keeping with the decentralized character of the system for presidential selection the Constitution sets up (and also perfectly in keeping with many other deep constitutional traditions and analogies as well).

Seventeenth Amendment Shenanigans in Mississippi

A second important national electoral development took place far South of Trenton. On Monday, a state court judge in Mississippi ruled that state law required a special election to be held soon (rather than in November, as Governor Haley Barbour intended) to replace U.S. Senator Trent Lott. Lott resigned last December, and his seat is being filled for the time being by Republican Roger Wicker, whom Governor Barbour tapped under a state law provision (supported by the Seventeenth Amendment) authorizing a temporary appointment.

In state court, Barbour's team unsuccessfully argued that state law allowed the contest for Lott's seat to be deferred until the November general election. However, the court ruled instead that state statutory provisions require the election for Lott's seat to occur within 90 days of Barbour's November 26, 2007 proclamation announcing the vacancy and the need for a contest to fill it.

Under the Seventeenth Amendment, it is up to a state legislature, and not a Governor, to set (or "direct") the procedures for a popular election to fill a Senate vacancy. (In an earlier column discussing the death of a Senator from Wyoming, I explained that this power over election procedures does not allow a state legislature under the Seventeenth Amendment to pick, or constrain a Governor in picking, a replacement, but is surely allows a legislature to dictate the timing of replacement elections.)

Mississippi state law does (seemingly to save on the costs of elections) allow a replacement election to be rolled into "the [regular statewide] general election" when "the vacancy shall occur in a year that there shall be held a general state or congressional election" anyway. But Lott's vacancy was created in very late in 2007, and it therefore seems pretty clear that the vacancy did not occur "in a year that there shall be held," later in that year, a regular statewide or congressional election.

Governor Barbour seems to be relying on the fact that there was a statewide election held in Mississippi earlier in 2007 (before Lott's departure), to contend that the Lott vacancy occurred in a year "that there shall be held a statewide election." But such a reading seems very weak. It ignores the forward-looking character of the word "shall"; it ignores the use of the word "the" (underscored above), which makes clear that the general election that serves as a basis for not complying with the 90-day timeline is the very election into which the special election must be rolled; and it ignores the legislature's obvious concern for electoral efficiency underlying the whole scheme. One hopes the Mississippi appellate judges will realize all of this.

The Lawsuit Challenging the Nevada Caucus Procedures

Finally, a few words about the federal lawsuit filed last week (and still pending in the federal courts) challenging Nevada's caucus procedures are in order. The Complaint filed in federal district court alleges that the Democratic Party procedures (permitted or incorporated by the State) for tallying caucus results give the voice of certain individual caucus-goers (particularly, those who will participate on the Las Vegas strip at so-called "at large" caucus sites) more weight than that of other caucus-goers in other parts of the State, in violation of the so-called "one person, one vote" principle of federal constitutional law. (There are also some state claims raised.) The lawsuit has attracted criticism from Senator Obama's campaign since the at-large caucus site participants might be particularly likely to back him, and are likely to include many persons of color.

Stripping away all of the political hyperbole, what can we say about the suit? First, it is not clear that the "one person, one vote" principle applies to Presidential candidate selection methods in the same way it applies to general elections and to legislative primaries. Second, even if it applies to Presidential primaries (which is quite possible after Bush v. Gore), there is much uncertainty about whether it applies to selection systems such as caucuses.

At the very least, the claim on the merits requires much thought and analysis before being accepted. And there's the rub: The lawsuit was filed too late for the courts to be able to give it such thought and analysis. It was also filed too late for the Democratic Party to come up with another way - should its current caucus plan be invalidated - to encourage participation among people who work on the Vegas strip and can't get home in time to caucus. The caucuses are scheduled for this Saturday (January 19), and there is no time to really reflect on the issues presented or on possible remedies, should the courts find any violations of law.

Because the lawsuit was filed so late (last Friday, January 11), and because there seems no good excuse for Plaintiffs' not having filed earlier, when careful judicial attention and alternative voting plans were available, the suit should be barred by the doctrine of laches, which holds that someone who needlessly delays in bringing suit and whose delay has caused problems may be barred by the court, on equitable grounds, from suing (even if he is within some formal statute of limitations period.) The rules for the Nevada caucus have been in place for many months; there appears to be no valid reason why suit was filed only last week.

I hope the district court and/or the U.S. Court of Appeals for the Ninth Circuit dispose of this case on these (easy) grounds, should Plaintiffs persist. And former President Clinton, who has been quoted as seeing some merit to the Plaintiffs' claims, should well appreciate the laches problem; laches should have barred Paula Jones' suit against him, for she too had no adequate reason for waiting until Clinton was in the Oval Office before suing him and imposing costs on the entire country.


Vikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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