Produced by 
and 
|
Law Professor Sanford Levinson on Election Minefields in the Constitution
|
(CNN) -- University of Texas constitutional law professor Sanford Levinson joined Law Chat on Wednesday, August 16, to discuss election provisions in the Constitution related to presidential campaigns.
Levinson teaches and writes about political theory, responsibility and jurisprudence. He is the author of several books on the Constitution and his articles have appeared in numerous law journals, including the Harvard Law Review and Yale Law Journal.
Law Chat is presented by FindLaw. CNN.com provided a typist for Levinson. The following is an edited transcript of the chat.
Chat Moderator: What are some of the more interesting questions raised by the 12th Amendment and other provisions of the Constitution as they relate to the presidential election?
Sanford Levinson: Well, first and I suppose most obviously, there's the Electoral College itself, which means that we don't elect the president by a nationwide popular vote but, instead, on a state-by-state basis. And that generates the possibility that the person that comes in second in the populate would come in first in the electoral vote.
We haven't had that situation now in about a 120 years, since the election of 1888. But we've been very lucky. There are a variety of minefields buried in the Constitution, including the 12th Amendment, that we've been lucky to avoid. But we shouldn't continue to have a blind faith that they will never go off.
The Constitution says that a winning candidate has to get a majority of the election, and if no one gets the majority, then the president is chosen by the House of Representatives. On a one state, one vote basis. I believe that this is a minefield of major proportions, and that it's something that we ought to think of fixing now, instead of waiting, in effect, until it's too late.
Question from Scott Palmer 4 President 2000: Does the Constitution state that a candidate seeking public office, like president, must be a party member? And does the Constitution also state that the Republican National Committee and Democratic National Committee may decide how their competitors are allowed to compete for said public office?
Sanford Levinson: No not at all. In fact, the framers in 1787 were very much opposed to party politics, and the whole vision of the Electoral College was in many ways an anti-party vision. By 1800, that vision had failed, and we saw the development of political parties.
But neither the Constitution, or for that matter, statute law says that you must be a member of a political party to run. As a matter of fact, everybody who has run has been a member of a political party or, like Ross Perot, has tried to organize a new party.
But it would be perfectly constitutional for a person to run on his or her own. And certainly, the opposition party should have no legitimate role to play in deciding how their adversaries operate.
Presidential elections are run by state, not by the national government. It is possible that states might require candidates for president to indicate the party or a party they belong to, but this would be a formality, because the candidate could always invent a new party name.
Question from Spyder: Does the Constitution prohibit an election system, such as proportional representation? If not, why do you think it hasn't been implemented?
Sanford Levinson: The Constitution does, with regard to the Senate, where there is equal membership of the states, even though, obviously, this leads to wild disproportions insofar as Vermont has the same number of senators as California.
But otherwise, the American alliance in the House of Representatives and in state legislatures on single member districts, is just the way we do things and not constitutionally required.
Chat Moderator: Historically speaking, how did this amendment come about?
Sanford Levinson: It came about as the result of the election of 1800, when there was a tie vote between Thomas Jefferson and Aaron Burr. And the tie came about, because at that time, under the original Constitution electors did not separate the vote between presidential and vice president. They instead simply voted for, in essence, their two favorite candidates.
The assumption in 1787 was that when the votes were added up, there would be differences among the candidates. That assumption did not work by the 1800 election, because political parties, in fact, had developed. So, all the members of the Democratic-Republican Party voted for their two candidates, Jefferson and Burr, producing the tie vote, which meant that the House of Representatives had to choose between them.
The 12th Amendment corrected for the rise of the party system, by splitting the election into two so that ever since 1804, electors cast one vote for the president and one vote for the person they want to be vice president.
Question from Randy: Despite the constitutionality, doesn't the system make it extremely difficult for a candidate independent of a party?
Sanford Levinson: Oh, yes. There's not much more that needs to be said. We are organized as a matter of fact around two major political parties. And it' very, very difficult to for an outsider to break in.
Question from Yossarian: Do you believe that textualism is a valid "theory" of statutory or constitutional interpretation?
Sanford Levinson: It is one among several valid theories. It would be silly to say that one should ignore the text, but at times it is equally silly to say that there is nothing else to do than to read the words of the text.
Question from Scott Palmer 4 President 2000: Do you think the public is unaware of the difference between the electoral vote and the Electoral College?
Sanford Levinson: The honest answer is I don't know. I think that the emphasis on national polls, kind of the horse race poll where one finds out that Bush is leading Gore by X points, might mislead some members of the public to believe that we choose the president by a single national vote.
On the other hand, I would be surprised if most voters didn't realize that they were voting only within their state, and that it is, in fact, the electoral vote that ultimately counts.
Question from Chameleon: What has happened to the 10th Amendment? It seems to me, like most of the issues in this election, to have little to do with the powers granted to the federal government in the Constitution.
Sanford Levinson: The 10th Amendment simply says that any powers not grated to the national government, are reserved to the state or to the people. But from the beginning until today, we've always debated on trying to figure out what powers, in fact, the national government has. The Supreme Court famously said in 1942 that the 10th Amendment is a truism, and therefore, it really doesn't provide anything in the way of real guidance as to what powers are actually enjoyed the national government.
Question from Pinkocommie: In the near term, might one of the major parties split and begin a multiparty era in American politics?
Sanford Levinson: I certainly don't believe that is out of the question. If Gov. George Bush loses then, it would not surprise me, if the very, very real divisions within the Republican Party might take the form of a genuine split.
Similarly if Gore loses, I can imagine that the Green Party that Ralph Nader is running on this year could be very attractive for more liberal Democrats who are increasingly unhappy with the move to the right of Vice President Gore.
Chat Moderator: Thank you for joining us today, Professor Sanford Levinson. Do you have any final thoughts for us today?
Sanford Levinson: Well, the main thought is really the one with which I began, that we ought to think about these Constitutional minefields before they go off, instead of afterward.