The Convention possesses the ultimate authority
to seat and unseat delegates
Friday, April 4, 2008
by Mike Anderson
[EDITOR'S NOTE: This 'vox Populi' is in response to the series of Commentaries by Richard E. Berg-Andersson under the title 'THEATRE OF THE POLITICALLY ABSURD'. We here provide a link to PART THREE of this series: the interested reader should please know there are links to the previous two parts at the very beginning of PART THREE]
The Constitutional argument that you make with regard to the Democratic delegates from Florida and Michigan faces extremely difficult, and probably insurmountable, obstacles and hurdles.
In the first place, even though the Constitution endows the legislatures of the several states with the authority to determine how Presidential electors are chosen, it also grants Congress the exclusive right to count Presidential electoral votes. On several occasions, Congress has debated on whether the Presidential electoral votes of a state are valid and legal, and in a few cases it has decided not to count them at all. In 1872, the entire electoral vote of the state of Louisiana was deemed to be invalid by Congress, as was the entire electoral vote of the state of Arkansas. Since the decision by Congress not to count the electoral votes of these two states did not interfere with the voting rights of the citizens of these states, it would be difficult to argue that a Democratic convention would not have the right to deem as invalid the delegate votes from the states of Florida and Michigan.
Secondly, there are numerous instances in which the presiding officers at a party convention denied delegates representing a sovereign state the right to vote at all, because they had violated some rule or procedure. The most recent example of this took place at the 1992 Republican convention in the Houston Astrodome. The delegates from New Hampshire, notwithstanding the fact that they were duly elected in a state primary, were excluded from the Presidential roll call, because they had not announced their vote when called upon by the clerk. These examples would seem to give ample precedent for the Democratic convention to exclude the votes of delegates from Florida and Michigan, which were chosen in violation of party rules.
Thirdly, and most importantly, the Democratic national committee has not forbade delegates from Florida and Michigan to attend the convention per se, it has only excluded any delegates chosen from theses states based on the results of the January primaries. In fact the committee made it quite clear that it would accept Florida and Michigan delegations based on the results of "do-over" primaries. However both states declined to hold such primaries. And, in fact there are four other states whose Democratic delegates were not chosen at the official state-run primary: Washington, Nebraska, Idaho and New Mexico.
There is no Constitutional umbrella to shelter Florida and Michigan from the storm of controversy in which they have placed themselves. If locked out of the convention hall, delegations from Florida and Michigan will have no alternative but to plead for the Democratic convention delegates from the other forty-eight states to let them in. In the example which you gave, the Democratic delegates from California pledged to George McGovern in 1972 were unseated by the credentials committee, but later re-instated by the convention. It is the convention which possesses the ultimate authority to seat and unseat delegates.
Mr. Berg-Andersson responds:
I won't "beat a dead horse" here by, once more, merely reiterating my take on this issue per se, save to only note, again, that States are sovereign, while politically Parties are not. And where there are Parties- organizations totally unaccountable to the People as a whole (only to their own membership or, conceivably, even only those they might define as "loyalists" within that membership, however inadvertently or purposefully this be so defined)- claiming the ultimate authority to determine the dates on which sovereign States can hold their own elections as defined by their own respective constitutionally-adopted statutes, including Presidential Primary elections, you only end up with a presidential nominating process that is much more oligarchic than it might be at all democratic!
Mr. Anderson's argument seems to boil down to "it's been done this way for a long time now", but this doesn't mean, of course, that it always has to be done that way. In the end, it is the American People- not the Parties, nor the States, nor even Congress- who ever retain their ultimate sovereign power to change how candidates for President and Vice-President of the United States are to be nominated and, ultimately, how those destined to serve in those highest elective Offices are to be elected. If the average American citizen honestly believes "if it ain't broke, don't fix it" then, fine-- just don't complain about being left with the but two most viable choices from which the vast majority of such voters will choose every fourth Autumn!
If, however, the presidential nominating process (not also to say the presidential election system) is, in fact, "broke", then it is the civic obligation of "we, the People of the United States" to "fix it"- via Constitutional Amendment, if necessary, although that might well be rather difficult to do- even though there will be powerful, where not also vested, interests who will most strongly oppose such a change (including the Major Parties, as institutions, themselves, not also to mention the fact that most of those who serve in a Congress that would have to "report out" such an Amendment by 2/3 vote in each chamber- like most of those who serve in the State legislatures that would, most likely, thereafter have to ratify it- are themselves the products of Major Party-dependent campaigns: many of these will, thus, find it quite hard to buck the will of their own respective Party, even as these same officeholders might so earnestly endeavor to serve the will of the People).
It is, of course, too late to do anything about 2008: for we're, obviously, now stuck within a current nominating process that has already started. As regards 2008, I will here only repeat: a Democratic Party presidential nominee- whoever it might turn out to be- who accepts his or her nomination in front of that Party's National Convention in Denver this Summer which does not have duly accredited delegates from Florida and Michigan on its floor is making the first major political mistake of the '08 General Election campaign: one bad enough to cost the Democrat the Presidency? Probably not-- but one still bad enough to have the Democrat wearing at least one "cement sneaker" at the start of the Presidential Election race!
But note that 2012 is already shaping up to merely be the same thing all over again:
For, as I type this, it is reported that Kansas wants to hold its Presidential Primary on the first Saturday in February: this would be February 4th in 2012. If we presume, if only for sake of this argument, that 'Super Duper' Tuesday remains the first Tuesday in February and that this would still be the optimum "start date" for Presidential Primaries and Caucuses in most States (except, of course, for those "favored few" allowed, by oligarchic imprimatur, to go earlier), then that date would be February 7th in 2012 and Kansas would, thereby, be going "too early"--
or does Kansas truly wish to join the list of the sanctioned? ;-)
Meanwhile, the Republicans have already proposed something called the "Ohio Plan", which sets up a new calendar under which States are to hold their respective GOP Primaries and Caucuses: Iowa, New Hampshire, Nevada and South Carolina will go first, followed by 19 other smaller-populated States, with the remaining larger-population States voting in 3 separate regional groupings, such groupings rotating in order every four years: yet once more, a presidential nominating plan so clearly unfair to all States and, at the same time, yet another quasi-oligarchic "solution" that, in the end, only serves to solve nothing! (This plan would have to be approved by this year's Republican National Convention in St. Paul itself in order to take effect for the 2012 presidential nominating process of that Party, by the way).
After all, wasn't it the Democrats' plan this year to allow- let's see-- yes!- Iowa, New Hampshire, Nevada and South Carolina to go ahead of every other State, a plan that, in turn, led to the "front-loading" of Primaries and Caucuses which created 'Super Duper' Tuesday 5 February, not to also mention the "too early" Primaries that gained Florida and Michigan the "death penalty" on the Democratic side, thus at least some of the current consternation for that Party heading into its 2008 National Convention?
Surely, one would have thought that the other Major Party might have learned at least something from watching all this from afar!
Political absurdity, thereby, becomes political insanity, however: for 'tis said that the very definition of Insanity is "doing the same thing over and over while, at the same time, always expecting the end result to be different".