Battles over Florida and Michigan shadow
the electoral battle in Puerto Rico
Friday, May 30, 2008
by Richard E. Berg-Andersson
The first question to be considered is, what is the extent of the powers of a sovereign government?
It may be said generally that a sovereign government can do all that can be done by the united power of the community which it governs; or, more strictly, that it can do all that can be done by so much of the power of the community as it can practically command. The power of a sovereign government has not a LESS extent than that which has been just stated (emphasis in the original)...
When the right of a sovereign government to do any act is denied, nothing more is meant than that the government ought not, in the speaker's or writer's opinion, to do the act. This expression is, therefore, merely a concise formula for assuming the question at issue...
On the other hand, the power of a sovereign government has not a GREATER extent than that which has been stated (again, emphasis in the original).--
Sir GEORGE CORNEWALL LEWIS- later Chancellor of the Exchequer (in which office he, interestingly, was immediately preceded by future Prime Minister William Gladstone and would be immediately followed by future Prime Minister Benjamin Disraeli): in his Preliminary Inquiry into the Powers of a Sovereign Government, by way of an Introduction to his Essay on the Government of Dependencies 
I have started this piece off with the above quote from Sir G.C. Lewis in order to reiterate what should be- and yet, someday, could be: that the States of the American Union are the unitary sovereign governments within the Federal system that is the United States of America, while political Parties- even when organized nationally, across State lines- are not (for further exposition on this concept, please see my Commentaries of some two months ago [the link just now provided will bring one to the third part of a three-part "opus"; links to the first two parts of same appear at the very beginning of this third part]).
After all, the Democratic Party- for example- has no vested interest, as an institution, to represent the "united power of the community" (to use Lewis' phrasing), if only because that "united community" happens to also contain, among others, Republicans deemed, if not hostile, at least unaccommodating, to the Democrats' political agenda. It is for this very reason that the sovereign power to set the date- and even the concomitant regulations- for an election (other than the dates of those elections to Federal office which can be constitutionally set by Congress) is, at least ultimately, left to the States and not to Parties (except where the State has, either by its inaction- that is, by default- or by specific instruction through either legislation or lawful regulation- in other words, intentionally- left same to the Parties).
Simply put: whatever the Democratic Party (or, for that matter, the Republican Party- or, truth to be told, any political Party: the Libertarians, the Greens, the Constitutionalists, etc. etc.) regulates for itself is, by very definition, solely for the principal benefit of that Party and its adherents (however the given Party might define these). A political Party does not- and, in reality, cannot- set up electoral regulations for the benefit of the entire "united community" under a sovereign jurisdiction. Therefore, a political Party should not be able to force, by its own sheer will, the sovereign government with said jurisdiction over such a "united community" (in this case, a constituent State of the United States of America) to conform to its own regulations merely because there are such regulations!
A political Party so asserting just such a power is merely expressing an opinion, again to quote Lewis, "that the government ought not... to do the act" (in the instant case, said "act" would be the State's electoral Law trumping the Party's own electoral regulations) which, in turn, is "merely a concise formula for assuming the question at issue".
And the "question at issue" is a constitutional anomaly with which one is presented going into this very weekend.
That anomaly is this: that the national level of a political Party is denying the efficacy of the workings of States' statutory election codes- in essence, a political Party (a private organization, in the sense that the citizen of legal voting age [18 throughout the United States] is free to associate- or not associate- with the political Party of his or her choice) is here dictating to a sovereign State when exactly it can hold its own Primary election, a power the State itself has- or, at least, should have- as one of its so called Reserved Powers under the 10th Amendment to the Federal Constitution!
What other private organization (or, for that matter, private gathering without organization) can so claim such a power?
If I would want to, say, host a rather boisterous gathering of my more rowdy friends, on my own property, which includes an outside barbecue at 3 o'clock in the morning, I dare say I would be in serious violation of the noise-abatement ordinances of my local municipality which, although not sovereign in and of itself (municipalities, like all American local governments below the State level, being mere creatures of the sovereign State, erected principally for the State's own convenience in distributing and devolving its duties throughout its own jurisdiction), has been granted power, by my own sovereign State, to adopt and enforce ordinances such as these for the benefit of sound sleep amongst the other nearby residents of my municipality.
I can't simply say "Well, it's my private property and I can do whatever I please on it whenever I might want to do it- whatever 'it' might be" and, thereby, evade the inevitable summons (including, I presume, a specific dollar fine) to come down to Municipal Court and (should I decide not to pay said fine) explain myself to the local jurist (who will, should I elect to do so, almost certainly rule against me).
It's all rather simple: State law here in New Jersey allows its municipalities to adopt and enforce such regulations as noise-abatement ordinances as a devolving, upon such local governments, of the State's own Police Power (the power to- as one authority [Lalor's Cyclopedia of Political Science] once so well defined it- secure generally the comfort, health and prosperity of the state, by preserving the public order, preventing a conflict of rights in the common intercourse if the citizens, and insuring to each an uninterrupted enjoyment of all the privileges conferred upon him by the laws of his country). Here (unlike in, say, Motor Vehicle Law [under which I have a State driver's license and my car is registered with the State]), New Jersey has chosen not to "pre-empt the field" of such "police" regulations; instead, State statute and, where it has proven necessary in order to resolve disputes, decisions of State courts set the parameters under which my municipality may so operate in order to make sure that my enjoyment of my property does not adversely impact upon my neighbors' just as rightful enjoyment of their own.
Thus, when the municipality acts to stop my (here hypothetical, I assure you!) wee hours of the morning cookout, it is as if the State itself is acting (the municipality here being an agent of the State) and, if nothing else, this clearly illustrates that a private person or group of persons cannot use the veil of Privacy in order to evade State sovereignty and the concomitant enforcement of the State's own Reserved Powers (of which the Police Power is one)!
Further complicating a constitutional anomaly through which the private organization that is a political Party can so dictate to a State its own election law is the lack of an objective and neutral means through which the State, or its citizenry, can find redress:
As was illustrated in my three-part March 2008 "opus", even if one accepts my argument therein (or, for that matter, herein as well), there is no way the Judiciary can effectively even entertain a doctrine that, a Primary being just as much a part of the overall electoral process as a General Election (thus, logically, the nomination of candidates for elective office should be subject to the same legal protections- for the voter- as would be required in a later choosing between candidates so nominated), any State regulation of just such a Primary should be paramount- if only on the issue of Sovereignty alone- over and against any and all Party regulations to the contrary.
As I already have noted in those two month old pieces, based on the relevant events in between the California Primary in early June 1972 and the Democratic National Convention of that year held but 5 weeks thereafter, no competent court could even hear the case as, besides the issue of such a dispute being within the realm of so-called "political questions" the Judiciary generally has no desire to at all decide, any such dispute could not become a 'live' "case or controversy" until after the National Convention itself has acted upon the dispute and then- once the National Convention has adjourned sine die but (presumably) a few days after the dispute has been decided, to the detriment of one side or the other- any such "case or controversy" brought before a court by the losing side would be "mooted" upon said adjournment (for how can a court, in deciding in favor of the losing party, then hand down judicial orders to a body that no longer functionally- let alone legally- exists?)
After all, even the per Curiam Opinion of the U.S. Supreme Court in O'Brien v. Brown [409 U.S. 1 (1972)] admitted that the Court's own decision in this regard may well preclude any judicial review of the final action of the Democratic National Convention on the recommendations of its Credentials Committee.
It is as if the political Parties have so "rigged the game" as to allow themselves to do the proverbial "end run" around the sovereign powers of a State of this Union without any outside supervision whatsoever (something that my theoretical late night cookout with friends would not at all be allowed to accomplish-- so much for a 'Government of Law and not of private individuals'!). And it is this "rigging" that I termed a "political absurdity".
But, apart from what I have opined should/could be, the reality is- obviously- that which actually is.
Thus, we are where we are-- that is, left with, basically, the very same sequence of procedures as were used in 1972 to settle that dispute, the resolution of which would eventually well determine the final outcome of that year's Democratic presidential nomination contest:
1. a preliminary hearing (which, in effect, is this Saturday [31 May]'s meeting of the Democratic National Committee's Rules and Bylaws Committee);
2. a decision by the Credentials Committee of the upcoming Democratic National Convention at some point;
3. final resolution of the dispute by the 2008 Democratic National Convention in Denver itself (if necessary).
The Michigan position is that the 128 delegates should be split 69 for Senator Clinton and 59 for Senator Obama (and, apparently, this position was endorsed by the Executive Committee of the State Democratic Party).
The problem is that this is all rather arbitrary and does nothing at all to rectify the overall anomaly (although I well understand that, no more than the national Democratic leadership, does the Michigan Democratic Party have any vested interest in- on their own- advancing the effect of their decisions on the "united community" that is made up of all Michiganders, Democrat and non-Democrat alike).
Why 69/59, by the way?
Because, evidently, it happens to be just about halfway between the 73 for Hillary Clinton and 55 for-- well-- I guess we could call it "anti-Hillary Clinton" (though, officially, it is 'Uncommitted') and a 64/64 "even Steven" split claimed by the Obama campaign (apparently solely on the basis of the State's Democratic Presidential Primary having been, somehow, "flawed" if only because Senator Obama had taken his own name off the ballot [presumably to, along with all other Democratic presidential contenders still in the race at the time, that much better appeal to voters in Iowa by showing that they, thereby, so fully respected Iowa's- and, by extension, New Hampshire's- "earlier than thou" position in the Presidential Primary/Caucus "season" calendar; it may fairly be argued that Senator Obama being the contender for the Democratic nomination he has since become is directly tied to this decision for, had he not "won" Iowa's caucuses (again, "won" in quotes here because no National Convention delegates from the Hawkeye State were actually pledged back on 3 January), we would not even be talking about an Obama vs. Clinton tussle right now]).
In truth, there is no rational, logically based, reason for such a 69/59 split but for the fact that Obama's side now claims 64/64 would, somehow, be "fair" (does this mean that, had Obama- instead- claimed all 128 pledged Michigan delegates, the State Democratic Party would now be recommending, say, a 91/37 split in Obama's favor? For, in such a case, this would have been just as mathematically logical as what the State Party proposes now!).
No, what is fair is that 73 pledged delegates be seated for Mrs. Clinton and 55 be free to vote for whomever they might wish (after all, they are 'Uncommitted'!)-- for Michigan constitutionally set its Presidential Primary date as 15 January 2008 under State law, held said election- again, under State law. The voters who wished to do so, thereby, voted on that date and the results, if the rules set for all jurisdictions under Democratic Party national rules be applied, would be 73 Clinton/55 Uncommitted... period!
And let me remind anyone who might think I might be writing this to, for some reason, more advance Senator Clinton as the 2008 presidential nominee of the Democratic Party: *I* have no "dog" in this "fight". I "calls 'em as I sees 'em", "it ain't nothin' 'til I call it" and "in my heart, I never call one wrong" ;-)
More to the point, and anyone who so desires can click on the links to my Commentaries on this website to check the veracity of what I am about to write: I have been writing about this, and taking the very position I just outlined above, since January 2008 itself- long before I could possibly know how events in the Democratic presidential nomination contest between then and now would actually play itself out.
To my mind, the Michigan Democratic Party has done both their Party and their State a disservice by being so willing to advance a 69/59 split (that, and they are also ignoring the fact that, in the end, it is not really their "call" anyway: for somehow, in some way, one of the two surviving presidential contenders will eventually come to control a Democratic National Convention without either Florida and Michigan [by having the pledges of at least 2,026 of the 4,050 delegates meeting in just such a Convention] and it will be that Convention that will ultimately decide what to do about both Florida and Michigan [assuming no "deal" is made between the two competing campaigns beforehand]; and said Convention will do that which best advances the eventual nomination of the controlling contender... case closed!)
As for Florida: what the State Democratic Party there is arguing is that they should have at least 50% of their pledged delegates seated at the National Convention in any event, per Rule 20.C.1.a of the Delegate Selection Rules which states that, where a State holds a meeting, caucus, convention or primary which constitutes the first determining stage in the presidential nominating process earlier than allowed by the national Party the number of pledged delegates elected in each category allocated to the state pursuant to the Call for the National Convention shall be reduced by fifty percent. Thus, so says the Florida Democratic Party, they should be entitled to seat at least 93 (185/2 rounded up) pledged delegates at the Denver Convention.
Be that as it may, the same as I wrote above as regards Michigan also goes for Florida:
By being so willing to settle for "half a loaf" (albeit a different "half loaf"- and a "half" that is, at least, half more logical!- than Michigan is, evidently, willing to settle for!), the Floridian branch of the Democratic Party is, likewise, selling out as, again, Florida's Presidential Primary was held- in this case, on Tuesday 29 January 2008- under State law, the voters voted as they did, and the result was (and should be) 105 pledged delegates for Mrs. Clinton, 67 for Mr. Obama and 13 for former Senator John Edwards (who has, of course, since released his delegates and endorsed Obama [though his released delegates from Florida become, in effect, "uncommitted" and are under no obligation to follow Edwards' lead]).
However, we are not now so much in the realm of logic and reason but, rather, far more in the emotional cauldron of "raw, unbridled politics" in which feelings and beliefs will come to matter much more.
Again, it will be whosoever might come to control the "sanctioned" Democratic National Convention who will decide the fate of Florida's and Michigan's delegations to that Convention and, until such control manifests itself, no quarter is likely to be asked or given. Therefore, I do not expect anything substantative to come out of this Saturday's DNC Rules and Bylaws confab- outside of a lot of rhetoric and "spin" from representatives of both campaigns- unless Senator Obama, who right now seems to have much better cards showing after the "flop" as we all still await both the "turn" and the "river", gets some kind of assurance that any such substance will not at all derail his ability to (as seems rather likely as I type this) soon control the 2026 National Convention delegates currently necessary for nomination.
Meanwhile, as we await the actual outcome (if any) of the 31 May meeting- as well as the Presidential Primary in Puerto Rico the next day (Sunday 1 June)- it is rather apparent that Senator Clinton, in her efforts to salvage any hope whatsoever of still gaining her Party's presidential nomination this time round, has no choice but to go "all in"!