Posted 3:52 PM by Robert

Are Articles I and II of the Federal Constitution Alike?

From Article II: Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.

From Article I: The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.

These provisions are at least superficially similar, as noted here, for example.

But the similarity may be dangerous and possibly misleading because voters have a direct right under the Constitution to vote for their Senators and Representative - but have no right to vote for the President or for any elector who votes for the President.

Instead, Presidential electors are chosen entirely in the discretion of the state legislature, as the Supreme Court pointed out in Bush v. Gore:

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U. S. Const., Art. II, §1. This is the source for the statement in McPherson v. Blacker, 146 U. S. 1, 35 (1892), that the State legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution.

At first the grant of state legislative power under Article I seems broader than the Article II grant: "Time, place and manner" are be determined by the legislature, where Article II only says that the legislature may choose only "the manner" in which Presidential electors are appointed. But something is wrong here. Article II allows the legislature complete control over the actual selection of Presidential electors, but Article I only allows the legislature to stipulate the "time, place and manner" under which other people (the voters) do the selection. A right to stipulate the "time, place and manner" under which a certain activity is to be conducted normally carries with it the meaning that the "time, place and manner" are procedural and are not to be formulated to unduly burden the governed activity. In short, the legislature's right to determine the "time, place and manner" of an election under Article I is not plenary, but the legislature's right to choose Presidential electors under Article II is plenary.

Whether the legislature's power is plenary is not the ultimate question. The ultimate question is: Does this provision of Article I grant power to the state or to the legislature of the state? It seems much less likely that the Article I grant runs directly to the legislature than in the case of the Article II grant.

Consider the case in which the legislature of a state itself simply votes directly to appoint Presidential electors - which was the old way many states chose electors. Is there any room for the state courts to function in the choice process? It's hard to find one. If the question comes up whether one person or the other was appointed as an elector, the legislature can answer for itself. Legislatures generally function as the court of last resort for their own rules.

But running a popular election cannot ever be like the legislature just voting for a list of names. An election requires the full apparatus of the state, legislative, executive and judicial branches - that is, the full state. By its very nature, an election requires the executive to put whatever election laws the legislature passes into effect. Problems will come up in construing the laws. Are the state courts to be barred from construing those laws? Have the state courts ever been so barred? Of course not. Have state legislatures ever passed election laws then vetoed by the Governor? Of course they have. Would any sensible person think such a vetoed law actually controlled as to Senate and Congressional elections but not otherwise - just because Article I cuts the state executive out of the process? Not very likely. Have state election laws applicable to Congressional elections ever been construed that way in the history of this country? No. In sum, Article I seems to contemplate that states will pass and construe their election laws in the usual way - not by direct, independent legislative resolution independent of the executive and the courts.

But even if the state courts have more of a role to play in Senate elections than they do in Presidential elections, is that role limited even in the case of Senate elections to construing statutes? Possibly. And it is at least possible that the New Jersey Supreme Court may come to regret it's relative failure to cloak its decision in at least a pretense of construing legislative intent.

But the New Jersey Court's relative failure was not a complete failure. The New Jersey Court said it was "liberally" construing the election laws. One way of interpreting this rather gnostic assertion is that the New Jersey Court meant to say that it found that the legislature had delegated to it (the court) the right and obligation to "fill gaps" in the election laws. In this way the New Jersey Court's decision might be reconciled with Article I.

The New Jersey Court's decision - at least so far, since no full opinion has been provided - is a disgrace. One possible avenue might be for the United States Supreme Court to stay the New Jersey Court's decision and remand the case for clarification. Of course, since there is little time left, that might have the practical effect of overruling the New Jersey Court.

UPDATE: Could the United States Supreme Court adopt a more restrained position on Article I and hold that where the state legislature is in session, or can be immediately called into session, the state courts cannot exerise as much discretion over the election law process as the New Jersey Court did in this case without a clear statement of delegation by the legislature to the state court? That would have the effect of reversing the New Jersy opinion and point the finger of responsibility directly at the Democrat-controlled New Jersey legislature and Democrat governor. If they want to change the law, then they could do it now by statute - or expressly delegate sufficient power to the New Jersey Court. But of course they will then have to face the voters themselves.