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Archive for Wednesday, September 17, 2003

Right to vote for president in doubt

September 17, 2003

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— To the delight of some and the dismay of others, the people of California are preparing to vote on removing their governor. Meantime, a handful of scholars are trying to stir a debate on whether Americans should have the right to elect their president.

No, this is not some academic argument, unrelated to anything in the real world. In the summer issue of Political Science Quarterly, Alexander Keyssar, a professor of history and social policy at Harvard's Kennedy School of Government, reminds us that during the controversial aftermath to the 2000 election, that presumed right was seriously questioned.

As he notes, the leaders of the Republican majority in the Florida Legislature publicly asserted that if the outcome of the Florida voting were still in dispute on Dec. 12, the deadline for naming the state's presidential electors, the Legislature itself would make the decision whether Florida's decisive votes would make George Bush president. They cited the authority granted in Article II, Section 1 of the Constitution, which says that "each state shall appoint in such manner as the legislature thereof may direct, a number of electors" to cast the state's ballots for president.

The Legislature did not have to follow through, because the U.S. Supreme Court settled the issue by halting the vote-counting and declaring Bush the winner. But in the course of the hearings before the high court, Justice Antonin Scalia told the lawyers representing Al Gore that "in fact, there is no right of suffrage under Article II." In the majority opinion on Bush v. Gore, the court declared that any state "after granting the franchise in the special context of Article II, can take back the power to appoint electors."

Keyssar's conclusion is that if the Florida legislators had decided to resolve the muddled situation on their own, "the Supreme Court would have backed them up."

Cynics might say that such an outcome would have been no more partisan than the 5-4 decision of the Supreme Court. But Keyssar's view, which I share, is that contemporary Americans would react with disbelief and anger to the "extraordinary ... assertion that American citizens have no constitutional right to vote for president."

His proposed solution: Adopt a one-sentence constitutional amendment stating "All American citizens shall have the right to vote for presidential electors in the state in which they reside." For the first time, he says, that right would be asserted in positive terms, not simply implied by the constitutional language forbidding discrimination at the ballot box by virtue of race or gender.

That seems like a simple, straightforward proposal. But as quickly emerged in a discussion at Barnard College, whose transcript appears in the same journal, it may not be quite that easy.

Presumably the 18-year-old age qualification now in the Constitution would remain. Perhaps the question of voting rights for Puerto Ricans, who are citizens of the United States, would be contingent on the island becoming a state, rather than a commonwealth. But what about the question of voting rights for convicted felons?

That issue now agitates a number of states and is viewed by some civil rights advocates as the next frontier of the battle for an expanded suffrage. As Keyssar concedes, "It is particularly easy to imagine opponents of a simply worded amendment latching onto and making much of the fact that it would enfranchise several million people who have committed crimes." But excluding them in a constitutional amendment -- far more difficult to change than state laws -- would provoke opposition from civil rights groups. All Keyssar can say is that "a national debate on the merits and demerits of felon exclusions may be well worth provoking."

As a general rule, my view is that the handiwork of the Founders is unlikely to be improved by any constitutional amendment devised by the current generation of politicians or political thinkers. I am deeply skeptical about proposals to abolish the Electoral College -- something that Keyssar favors but says it is impractical to advocate.

But I remember being astonished at the reminder in 2000 that our votes for president count only if the legislature chooses to count them. I don't think that is acceptable to most Americans today, and I would hate to see the country's temper tested in that way.

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The death last week of Indiana Gov. Frank O'Bannon cost the state one of the most decent, down-to-earth political leaders in its long history. I interviewed the governor and supped with him and his wife at the zoo picnic they hosted during last month's National Governors Assn. meeting in Indianapolis and was reminded then of how dedicated both of them were to making life better for their fellow Hoosiers. He will be missed.

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