Is ALEC’s Draft “Equal State’s Enfranchisement Act,” Concerning U.S. Senate Elections, Constitutional?

Posted in: Constitutional Law

Yesterday the Federalism Working Group of the American Legislative Exchange Council (ALEC)—an influential and generally conservative policy-oriented institution that offers template legislation for state governments to consider adopting—was scheduled to meet to consider, among other things, a proposal that would empower state legislatures to add candidates to general election ballots for the office of United States Senator.  In the space below, I take up the question whether a proposal like this would be consistent with the federal Constitution.

Some Background on the Proposal and How It Might Be Analyzed

Here’s more detail on how the proposal—entitled the “Equal State’s Enfranchisement Act” (ESEA)—would work, were it to be adopted (as either a statute or a state constitutional amendment) by a state:  If twenty percent of the sitting members of the state legislature sign a petition nominating a person for the U.S. Senate (provided the person is not someone who has already been nominated by a primary election or political party committee), then that person is eligible (along with all others who also were nominated by twenty percent of the legislature) to be voted on by the entire legislature.  The legislature as a whole votes, and the person who gets the most support (even if that is less than a majority, presumably) is then included on the general election ballot (alongside candidates who earned ballot spots by more traditional means, e.g., winning party primaries) under the designation:  “State Legislature Candidate for United States Senate.”  (For more background on the proposal, and on ALEC, readers can consult an item last month in The Huffington Post.)

Before I delve into the constitutionality of the ESEA, let me first make clear that I am not addressing the question, in this column at least, whether re-empowering state legislatures to pick U.S. Senators would be wise policy.  Remember that before the enactment of the Seventeenth Amendment (and the events that led up to it) in 1913, state legislatures did select U.S. Senators, but that system was altered by the Progressive era and a direct election movement that culminated in formal constitutional change.  Some modern commentators have lamented the extent to which popular election of U.S. Senators has led Congress to undervalue, and impose upon, state governments.  From their point of view, federal-state relations would be different, and better, if state legislative election of Senators were reinstituted.  But whether or not this perspective has any merit, the Seventeenth Amendment, and the distrust of state legislatures it reflects, is a part of the Constitution that must be respected until it is itself amended.

Let me also make clear that I am examining the question of what legitimate authority, if any, state legislatures have to place names on ballots for federal legislative offices.  The empowerment of state legislatures, under state law, to nominate candidates and place names on ballots respecting state legislative offices might raise important questions under the federal Constitution—questions involving, among other things, the First Amendment, the fundamental right to vote, and the provision in Article IV of the Constitution that guarantees in each state a “Republican Form of Government.  But these questions are distinct from the ones I explore below, even though there may be some analytic overlap.

A Key Question:  The Scope of State Legislative Power Under Article I, Section 4

With those caveats, let us turn to the heart of the matter, namely, whether a state legislature can be allowed to nominate a candidate for federal legislative office and direct that candidate’s name be placed on the general election ballot bearing the designation “State Legislative Candidate.” Answering this question begins with the recognition that the only power state legislatures enjoy in this regard is that which is affirmatively given to them by the U.S. Constitution, in Article I, Section 4, which provides that the legislatures of the states shall prescribe the “Times, Places and Manner” of holding elections for House members and Senators, subject to override by Congress itself.  The key follow-up question then becomes:  Can a state legislature successfully argue that its placement of a name on a congressional election ballot is a means of regulating the “manner” of the federal election?

Interestingly enough, there are no Supreme Court cases of which I am aware that are clearly on point.  Indeed, almost all of the cases dealing with the exercise of Article I, Section 4 powers by state legislatures that the Court has decided concern not the placement of candidates on the general election ballot, but instead the effective exclusion of particular candidates from the ballot.  That is, most of the so-called “ballot access” cases that the Supreme Court has issued involve state laws that are challenged by persons or groups on the ground that these persons or groups were wrongly denied places on the ballot, not on the ground that the state government has directly put someone else on the ballot who does not belong there.  In this conventional ballot access setting, the Court has recognized that states enjoy “broad power” to prescribe the procedural mechanisms for conducting congressional elections, to deal with such matters as voter notification, voter registration, supervision of ballot places, prevention of fraud and corruption, and the counting of votes, to ensure that elections are “fair and honest” and that “some sort of order, rather than chaos, is to accompany the democratic process.”

But even as the Court has been generous to state legislatures in some of these cases, it has been careful to adhere to a line between procedure and substance; state legislatures are allowed “to issue procedural regulations,” but are not granted the “power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.”  A state legislature’s constitutional inability to favor particular federal legislative candidates and disfavor others explains why the Supreme Court held a dozen years ago in Cook v. Gralike (where it employed the crucial language just quoted) that the state of Missouri could not, on its federal election general ballot, print the statement “DECLINED TO PLEDGE TO SUPPORT TERM LIMITS” next to the name of a candidate for the House of Representatives who was unwilling to promise to support a particular federal constitutional amendment, seemingly supported by the voters of Missouri, that would create term limits for members of Congress.  The ballot designation Missouri wanted to impose was, said the Court, “plainly designed to favor candidates who are willing to support a particular form of a [federal] term limits amendment . . . and to disfavor those who either oppose term limits entirely or would prefer a different proposal” and as such was not a “generally applicable and evenhanded” regulation designed to protect the integrity and reliability of the electoral process itself.  Instead, by the state’s weighing in with the voters “at the most crucial stage in the election process—the instant before the vote is cast,” the Missouri regulation impermissibly “attempt[ed] to dictate electoral outcomes.”

It is hard to see how the ESEA would fare any better under this reasoning.  By adding the name of a candidate to the ballot, and by designating this person as the “State Legislature Candidate,” the state legislature is clearly endorsing one person on the ballot.  As a result, the legislature is, to use the words of the Cook Court, “favor[ing]” one candidate, and thereby “disfavor[ing]” the rest (since single-seat elections are zero-sum affairs).  And this influence by the state should not be taken lightly; as Chief Justice Rehnquist observed in his separate opinion concurring in the result in Cook, when a state adds things onto a ballot, it “injects itself into the election process at an absolutely critical point—the composition of the ballot . . . is the last thing the voter sees before he makes his choice. . . .”  Whether or not state legislatures can require or allow the placement of more neutral kinds of information on federal ballots (such as the occupation of each candidate, which might be okay, but which also might be problematic to the extent that it may tend to favor incumbents, who list their current office as their occupation), placement of an additional candidate and an implicit or explicit endorsement of that candidate on the ballot itself by the legislature would have to be viewed as an attempt to influence or dictate the result of the election.  (Individual state legislators or groups of legislators remain free, of course, outside the ballot itself and outside of formal legislative actions, to endorse or lambaste particular U.S. Senate candidates.)

To the extent that Cook, building on earlier cases, draws a hard line between state legislative efforts to regulate election procedure, and attempts to influence the substantive outcomes of congressional contests, the ESEA would seem to fall on the wrong side of the line.  As such, it lies beyond Article I, Section 4 authority, which is the only source of power a state would have to adopt it.

Another Problem with the ESEA: The Thrust of the Seventeenth Amendment Itself

As if that weren’t bad enough, the ESEA proposal also seems to violate another of the principles articulated by the Cook Court—the idea that state regulations of federal elections ought not “evade important constitutional restraints.”  It is bad enough when a state legislature attempts to influence the substantive outcome of an election for the House of Representatives (as in Cook), but it is worse still when the legislature tries to do so with respect to U.S. Senate elections, because (moving beyond Article I, Section 4) the Seventeenth Amendment is itself an affirmative “important constitutional restraint” on state legislatures.  As I have written in a column for this site earlier this year (and in earlier columns as well), and have explained in greater detail in academic writings, the overall goal of the Seventeenth Amendment was to get state legislatures out of the business of deciding who should serve in the U.S. Senate.

The attack that Seventeenth Amendment reformers made on state legislatures was multipronged. It was not, as one of ALEC’s staff has been quoted as suggesting (in The Huffington Post piece), limited to the fact that state legislatures were often deadlocked in the Nineteenth Century and thus were not filling Senate vacancies that arose.  The dissatisfaction with state legislatures was far deeper.  For starters, supporters of the Seventeenth Amendment accused legislatures of the same kind of excessive zeal and personal corruption that permeated the political party structure. As one prominent historian has put it,”[c]orruption, of both state legislators and senators, was the greatest evil blamed on the system of indirect election.” Of course, whether that widely held perception of corruption in state legislatures was justified is a more complicated matter.  In any event, it is not hard to imagine ways, even today, in which permitting a state legislature to add names to a Senate ballot could open the door to partisan shenanigans.  Consider, for instance, a Democrat state legislature that added a second Republican name to a ballot that already was going to include one prominent Republican and one prominent Democrat Senate candidate (via the two major primaries), in order to split and thus weaken the Republican general election vote.  (In this regard, note that the ESEA proposal does not even require that the “State Legislature Candidate” agree to be a candidate before her name is placed on the ballot.)

Perhaps the strongest Seventeenth Amendment argument concerning distrust of state legislatures that buttresses the Article I, Section 4 textual case against substantive legislative involvement, and one that also remains relevant today, derives from the concerns Seventeenth Amendment’s framers had about the way state legislatures fail to fairly represent the people of a state, and particular constituencies within the state, because of malapportionment. Although largely unnoticed in most modern discussions of direct Senate election, recognition of the “antiquated systems of representation” used to draw state legislative districts, and the resulting unfairness to, and misrepresentation of, various parts of the state peoples was clear, if not always trumpeted.  As an historian has written, such malapportioned systems, rife during the period leading up to the Seventeenth Amendment, “caused the legislatures’ election of Senators to give far different results from those which would have been yielded” by truly popular elections. Of course, certain kinds of gerrymandering (designed to disfavor urban dwellers) are no longer possible in light of the one-person, one-vote cases. But concerns about partisan gerrymandering are not eliminated by the one-person, one-vote principle, as recent episodes from states like Pennsylvania and Texas illustrate.

What Should Happen if a State Were to Adopt and Try to Implement the ESEA?

It may occur to some observers that, even if my constitutional criticisms of the ESEA are powerful and persuasive, the federal courts, using the so-called “political question” doctrine, might be disinclined to intervene and declare invalid any state’s enactment of the proposal.   And perhaps this is true, although lawsuits like Cook suggest that justiciability barriers in these kinds of cases can be overcome.  But even if no federal court is asked or is willing to step in, that doesn’t mean that the questions I raise should go unexplored.

The Constitution makes each house, including the Senate, the “Judge of the . . . Qualifications of its own members.” So if a majority of Senators believe that a state legislature has improperly influenced the substance of a Senate election by wrongly placing a candidate’s name on the ballot, it could refuse to seat the “winner” of this flawed electoral contest.  And before we ever got to that point, I would hope that Congress, realizing that respect for Article I, Section 4 limits and the Seventeenth Amendment should be of interest to both parties, would pass a federal law setting aside any state’s adoption of the ESEA.  Recall that Article I, Section 4 gives Congress the power to override any state regulation of the manner of congressional elections, and so to the extent that ESEA is defended as a “manner” regulation by a state legislature, Congress has the power to override it; if a state were to object to such a federal law on the ground that it exceeded Congress’ Article I, Section 4 powers, the state would effectively be admitting that the ESEA itself is ultra vires. If federal courts may be reluctant to enforce the Constitution here (and I’m not saying that they necessarily would be), that doesn’t mean Congress couldn’t and shouldn’t deal with the problem.

5 responses to “Is ALEC’s Draft “Equal State’s Enfranchisement Act,” Concerning U.S. Senate Elections, Constitutional?”

  1. Jon_Roland says:

    The Court erred in it’s opinion in Cook v. Gralike because placing a label on a candidate’s name on the ballot does not add to the qualifications to hold that office. A better argument for the court’s decision would have been that it violates equal protection under the 14th Amendment.

    The problem was the labeling, which might unduly influence the election. However, neither the 17th Amendment nor the Elections Clause restricts the powers of states over the nomination process.

    A better solution would be to replace ballot placement of party-nominated candidates with a multi-step method of sortition, such as this proposed amendment, which could be adopted by states without an amendment to the U.S. Constitution:

    Members of the United States Senate, and houses of state legislatures whose members represent political subdivisions not based on population, shall be selected by a multi-stage nominating process that first randomly selects precinct panels of twenty-three, who then elect a person from each precinct, from among whom are randomly selected twenty-three persons for the next higher jurisdiction or district, and thus by alternating random selection and election to the next level, when they reach the top level, the number of randomly selected candidates shall be two, who shall be the nominees on the ballot for the final election by general electors, except that general electors may write-in other persons.
    Electors may vote for more than one nominee, using the method of approval voting.
    There must also be an alternative of “none of the above”.
    The nominee receiving the most votes shall be declared elected, unless “none of the above” wins, in which case the position shall remain vacant until the next election.

  2. Drew Spencer says:

    I have a hard time seeing how this proposal would make much of a difference.

    In practice, either the legislature would not nominate anyone or the party that holds a majority in the legislature would not nominate anyone. Otherwise, you would have competition between two Republicans or two Democrats on the ballot in November (one nominated by the party and one by the majority party in the legislature). So all this would do is replace a partisan primary with a legislative primary for the majority party.

    Would the character of a candidate nominated in a legislative primary really be all that different? Seems like that candidate would be less reflective of the general voters sometimes and other times more reflective of the general voters.

  3. Richard Winger says:

    I am happy to see Professor Amar publicizing the little-known Cook v Gralike decision. Just as a historical curiosity, there is an instance when a state legislature passed a bill putting designated candidates (candidates named in the bill) on the ballot. In September 1948 the Florida legislature, in special session, passed a bill naming Harry Truman, Thomas Dewey, Strom Thurmond, and Henry Wallace, and saying they should be on the November ballot for president. If the legislature had not passed that law, Thurmond and Wallace could not have appeared, because at the time there were literally no means for independent candidates or new parties to get on the ballot in Florida for any partisan office.

  4. Nick Dranias says:

    Vikram, I appreciate its verbosity, but frankly your article is nothing but flack–except for its correct observation that there is no Supreme Court case addressing the specific issue at hand. First, the 17th Amendment’s text is clear. It only requires popular elections at the general election stage–the actual selection point of the Senator. The “thrust” of the 17th Amendment is not judicially cognizable unless the text is unclear. In most states, there are multiple ways of adding candidates to ballots and some have nothing to do with popular elections (ever heard of caucus? petition nominations?). The “thrust” of the 17th Amendment you speak of does not exist. Second, “State Legislative Candidate” is a completely neutral descriptive term, no more likely to influence an election in a positive way than a negative way. Your entire analogy to Cook thus falls apart. Face it, my friend, voters can be given a choice: They can go with the partisan choices they typically get, or their legislature can place a nonpartisan candidate on the ballot who will represent the entire state. Why would you not want that choice available? Oh, I know.

    • oreo57 says:

      “or their legislature can place a nonpartisan candidate on the ballot who will represent the entire state”……………. unicorns and faeries..