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Rein in the Legislature [Commentary]

Professor Peter Shane, Carnegie Mellon University, University of Pittsburgh School of Law

As the various courts of Florida and the United States government do their jobs--including the orderly resolution of the Florida presidential election--the state's legislators stand poised to push the nation toward constitutional crisis. Let's hope they desist.

The right to vote is protected by the 14th Amendment, whether that right is viewed as a form of constitutionally protected liberty or as an intangible property right created by state law. In either case, a legislature may not deprive supporters of any candidate of the legal consequence of their votes without due process. In this instance, a legislative determination to award Florida's electors to either of the two major candidates would violate due process in three ways.

First, as argued by Gov. George W. Bush's brief in the U.S. Supreme Court (albeit in an unpersuasive context): "[C]onstitutional principles of due process and fundamental fairness preclude the states from adopting 'a post-election departure from previous practice' and applying that post-election rule retroactively to determine the outcome of an election."

Nothing in Florida's law made the Nov. 7 election merely advisory to the state legislature. To change the rules now would be a gross insult to fundamental fairness.

Second, in purporting to adjudicate the actual outcome of the Nov. 7 election, the Florida legislature would be seizing judicial authority in violation of due process. It was just such state legislative usurpation of judicial power during the 1780s that motivated the Philadelphia drafters to provide the nation an independent federal judiciary and oust Congress from adjudication except with regard to impeachment and judging the qualifications and conduct of its own members. Now that the 14th Amendment imposes due process obligations upon the states, state legislatures should be deemed to have the same limits on them.

Finally, the legislature would be depriving Floridians of the right to participate directly in the selection of Florida's electors.

As originally drafted in 1787, the Constitution gave state legislatures plenary authority to provide for the appointment of electors in any manner at all, including direct legislative selection. Although arguments were made from the first for the right of the people to participate in the choice of electors, it was conventionally understood before the Civil War that legislatures could appoint electors directly if they so chose. As it happens, between 1832 and 1860, only South Carolina employed legislative selection. Legislatures chose state electoral slates only twice after the Civil War, in Florida in 1868 and in Colorado in 1876.

Today, democratic principles should lead us to interpret the due process clause as protecting the people's right to participate directly in the selection of presidential electors. That participation has become, in the words of Justice John Marshall Harlan, one of the nation's "basic values implicit in the concept of ordered liberty."

Since the ratification of the 14th Amendment, we have added 13 other amendments to the U.S. Constitution. Six were specifically intended to further our constitutional commitment to democracy: extending the vote to persons of all races, providing for the direct election of senators, extending the franchise to women, permitting District of Columbia voters to choose electors, eliminating poll taxes and lowering the voting age to 18. It is unthinkable, against this history of constitutional development, that a state legislature would still be deemed authorized to usurp the people's role in choosing presidential electors.

One could go further. The 14th Amendment also provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The court has never defined "privileges or immunities" comprehensively, but it has invoked the clause as a basis for invalidating inconsistent state legislation as recently as 1999.

In 1872 the Supreme Court wrote that at least some "privileges and immunities" would be those that "owe their existence to the Federal government, its National character, its Constitution, or its laws."

It is frequently said that, on Election Day, Americans do not hold a national election for president but rather 51 elections in the states and in the District of Columbia for presidential electors. But it is clear by now that what presidential elections have become is a vehicle--perhaps the single most important vehicle--for Americans to exercise their rights of political association and expression across state lines.

This has so long been the case that it is hardly fanciful to imagine a U.S. Supreme Court decision in the year 2000 declaring that the "privileges and immunities" protected by the 14th Amendment include the rights of Floridians and non-Floridians to associate for the political support of a presidential candidate on a national basis. And if I am right about this, then a decision by the Florida legislature to interject itself in the current controversy would violate not only the rights of Floridians but also the rights of voters in every state who are entitled to depend on each state's fidelity to its popular vote in appointing presidential electors.

Once ballots are cast on Election Day, discerning the winner may require the rule of law to work its course in cases of controversy. Our agents for guiding that task, however, are the courts. The Florida legislature has only one immediate duty--to defer.

December 4, 2000

Peter Shane is is visiting professor of law and public policy at the H. John Heinz III School of Public Policy and Management of Carnegie Mellon University. He welcomes comments at This op-ed originally appeared in the Washington Post on December 1, 2000.