Judge Stevens: Missing at least one amendment to the Constitution

Retired Justice Stevens has a new book: Six Amendments: How and Why We Should Change the Constitution. We have not read the book, but we have seen Justice Stevens interviewed on NPR and from the table on contents understand the outlines of his six proposed amendments. From the interview he indicated his goal was correcting recent errors of the Court in following the intent of the Founders.

We say he missed a big one. The problems of our electoral system and the Gore v. Bush decision in 2000.

Perhaps it is his criteria that was too restrictive or perhaps he will issue a sequel. (Gore v. Bush was really based on decisions in 1876, not so recent. And apparently the Founders did not anticipate the partisan election systems and problems that quickly evolved).  I am sure there are more than six good ideas out there, but many more bad ideas, to cure actual and perceived Constitutional problems and limitations.

As we have said here many times, we generally favor the popular election of the President with equal votes for all citizens, yet we oppose the National Popular Vote Compact <our NPV index>. The Compact would make the problems that led to Gore v. Bush worse. Making a risky system more risky. It would not, in fact, make every vote equal.

What is needed is a system that actually requires that every vote be equal, as system that we can trust that is enforceable, and enforced, one that provides uniform enfranchisement, access, security and public verifiability across all states. It would require a Constitutional Amendment that at a minimum would:

  • Require the direct election of the President by a uniform popular vote
  • Require uniform requirements for citizens to vote, uniform rules for voter check-in and identification, uniform requirements for early voting and absentee voting.
  • Repeal the 12th amendment which governs electoral accounting and was a major factor in the legal decisions of 1876 and 2000.
  • Require that votes and results be publicly verifiable, with effective and uniform election audits and with recounts for close votes, prior to the certification of the winner.
  • Require an effective method for mandating appropriate procedures, adjudicating issues, and certifying the winner.

For more information on what is wrong we the current system and the Constitutional limitations, we refer to our testimony and the work of Edwin B. Foley of the Moritz School of Law, referenced frequently in pages 2-6 of our testimony.

Reality: Even if somehow states agreed to a national state by state recount, the Supreme Court can be expected to rule as it did in Gore v. Bush that it would be unfair since it would not be uniform:

  • “Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them …there is no recount procedure in place under the State Supreme Court’s order that comports with minimal constitutional standards. Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.” http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=00-949
  • Even though the Court claimed the decision was not to be used as a precident, on what basis would they rule differently when faced with a challenge to a far from uniform state by state recount? See Moritz School of Law Profesor Edward B. Foley’s comments on Gore v. Bush and equality:  http://moritzlaw.osu.edu/electionlaw/comments/index.php?ID=8099

Quoting Professor Edward B. Foley and Nathan L. Colvin, of the Moritz School of Law, in their recent paper, “The Twelfth Amendment: A Constitutional Ticking Time Bomb”:

Although the Supreme Court’s decision in Bush v. Gore averted congressional confrontation over electoral votes pursuant to the deficient framework of the Twelfth Amendment, the episode signals the possibility that a similar dispute might arise again—but this time without the saving intervention of the Supreme Court. Although the events of 2000 produced passing interest in the mechanism established by the Twelfth Amendment, since then there has been no sustained plan to prepare the nation if a dispute over electoral votes goes all the way to Congress. Nevertheless, the history of the Twelfth Amendment and the commentary on it during the nineteenth century show that the nation needs a contingency plan of this sort.…like putting off preparations to defend against a once-a-century category five hurricane, it is easy to postpone considerationof a constitutional amendment designed to protect against another debacle of the kind that occurred in 1876… it is also worth proposing a second-best legislative solution that would modify the Electoral Count Act… either of the two major political parties will want to block any measure it perceives as disadvantageous to its interest …our country has embarked on a meandering journey of ad hoc approaches to resolving electoral disputes. The decision of the Supreme Court in 2000 marked only the most recent stop on this journey but was met with as much dissatisfaction as previous historic stops such as the Electoral Commission and the Twenty-second Joint Rule. Instead of waiting for the next electoral dispute and hoping that the Court or a bipartisan split in Congress might save our country, Congress should address this historic problem with an amendment to the Constitution that clearly addresses the electoral count procedures… The starting issue for an analysis of electoral vote determination under the Constitution is ascertaining where the Constitution vests the power to count and/or determine the validity of votes, and this is where the first ambiguity comes from. There are four possible actors: (1) the Vice President of the United States acting as the President of the Senate, (2) the two houses of Congress acting together, (3) the two houses of Congress acting separately, and (4) the states.13 The text of the Twelfth Amendment is unclear on this subject, and, throughout our history, various theories have prevailed.

They also quote Justice Joseph Story:

 In the original plan, as well as in the amendment, no provision is made for the discussion or decision of any questions, which may arise, as to the regularity and authenticity of the returns of the electoral votes . . . . It seems to have been taken for granted, that no question could ever arise on the subject; and that nothing more was necessary, than to open the certificates, which were produced, in the presence of both houses, and to count the names and numbers, as returned.


The Twelfth Amendment: A Constitutional Ticking Time Bomb

The Founders’ Bush V. Gore: The 1792 Election Dispute and Its Continuing Relevance


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