In the previous two parts of this series of Commentaries (labeled PART ONE and PART TWO, respectively), after an introduction explaining the relationship of the dual "sovereignties" found here in the United States of America- the Federal Union and the constituent States that make up said Union- and then further describing this relationship in terms of their respective effects on the question as to who has what power over American election law, I examined the chain of cases from Grovey v. Townsend through U.S. v. Classic and Smith v. Allwright (both of which changed the Federal courts' views of that relationship) and then looked at a dispute over National Convention delegates in 1972 that came the closest to a judicial intervention into just such a dispute. I ended the last segment in this series of my Commentaries with the dissent of the late Justice Thurgood Marshall in the case of O'Brien v. Brown that came out of that 1972 dispute.
Now it is time to bring all that I have written so far under the above title to what is going on right now, in 2008.
I want to start off by stating that I do not agree with everything Justice Marshall wrote in his O'Brien dissent, in particular his statement that the right to vote in national elections, both congressional and presidential, is secured by the Federal Constitution. I have no problem at all with the idea that the Right to Vote in congressional elections is so secured; my problem is with the concept that the same can be said of presidential elections. Thus, I am also here taking issue with the late Justice Hugo Black's statement- in his Opinion in the case of Oregon v. Mitchell- that [i]t cannot be seriously contended that Congress has less power over the conduct of presidential elections than it has over congressional elections.
Well, I now so seriously contend!
In my essay for this website on the evolution and development of the so-called 'Electoral College' and its use throughout American History, I started with a true story about a discussion I once had with a bunch of friends (at the time I was still young enough to use the term "bunch", as opposed to "group" [;-)]) during which I emphasized one particular phrase from the beginning of Article II, Section 1, clause 2 of the Federal Constitution: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors..." (italics mine). One of my friends "got it" to the point where he said out loud "In other words, the State Legislature could legally decide not to allow us to choose the Presidential Electors- either directly or indirectly- by popular vote".
Ay, there's the rub! So long as the Presidential Electors are constitutionally mandated to be chosen "in such manner as the [State] Legislature... may direct", there is no federalized Right to Vote for President and Vice-President equivalent to the federalized Right to Vote for United States Senators or Representative in the Congress of the United States, the existence of which I already demonstrated in PART ONE. Thus, an American's Right to Vote for President and Vice President is solely at the sufferance of one's State (except for voters in the District of Columbia, whose Right to Vote for President and Vice-President is- under the terms of the 23rd Amendment to the U.S. Constitution- at the sufferance of Congress, as opposed to a State legislature).
In PART ONE, I quoted from the only two provisions in the Federal. Constitution which specifically give Congress power to regulate aspects of Federal elections:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators (Article I, Section 4, clause 1)- which was not at all changed by the 17th Amendment to the document having U.S. Senators elected by the People of each State, rather than the State legislatures, and
The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. (Article II, Section 1, clause 4)
The former power (that Congress has over Congressional elections) is quite broad and was made broader still by the decisions in the Classic case, which makes quite clear that a primary election for purposes of nominating Party candidates for a general election is so much a part of the electoral process as a whole that Congress has the same power to regulate the Times, Places and Manner of Congressional Primaries as it does over Federal General Elections (Congress also has power- per the decision in the Allwright case- to enforce "by appropriate legislation" the provisions of those Constitutional Amendments forbidding denial or abridgement of the Right to Vote in State and local elections on grounds of race, color, gender or age where a qualified voter has already turned 18-- to quote from Justice Marshall's dissent in O'Brien: It is, of course, well established that the Constitution protects the right to vote in federal or state elections without impairment on the basis of race or color... or on the basis of any other invidious classification).
But the latter power, that over Presidential elections, is specific: narrow, strictly defined and not at all broad-- to repeat what I outlined in PART ONE, here Congress may only:
Determine the Time of choosing Presidential Electors (in a modern sense, the Date of a "Presidential Election" if, by this term, we mean the day the voters go to the polls [since all States now allow their voters to "appoint" the Electors]),
Determine the Day on which the Presidential Electors meet and vote in their respective (separate, each in its own State) 'Electoral Colleges'--
and, as regards Congress' authority over presidential elections, that's it!
Justice Black's formulation, in Oregon v. Mitchell, as cited in Justice Marshall's dissent in O'Brien is altogether mistaken, then: for, as I have just demonstrated, Congress does have less power over the conduct of presidential elections than it has over congressional elections. If we call the broader power of Congress over congressional elections 'A' and a similar power (which Congress does not, in fact, have) over presidential elections 'B', then the Federal Constitution, in essence, says that Congress may do 'A' and some of 'B'.
As for 'A', Justice Black is- indeed- correct, where he writes [t]he Constitution allotted to the States the power to make laws regarding national elections, but provided that if Congress became dissatisfied with the State laws, Congress could alter them: yes-- this is true, but only insofar as congressional elections are concerned; indeed, Congress can ride pretty much roughshod over State election laws when it comes to how its own members are ultimately chosen! However, when it comes to 'B', Justice Black goes too far, for his formulation, in effect, argues that "some of B" = "all of B" and that does not make any sense at all!
Thus, Congress' power over presidential elections is, in fact, restricted to the two instances specifically stated in the text of the U.S. Constitution and is, therefore, much more limited than its power over elections to itself. This is a rather important distinction because it puts the "ol' KI-bosh" on any attempt by Congress to, by mere statute, rectify the current system of Presidential Primary/Caucus scheduling which led to the front-loading seen this time round which, in turn, led to such as 'Super Duper' Tuesday back on 5 February last (let alone Florida and Michigan, in response, moving up their respective Presidential Primaries so as to have them take place before 5 February which only led to the Democratic National Convention delegations from those two States receiving the "death penalty" from the national leadership of the Democratic Party [of which more later in this piece]). And, therefore, the only method by which Congress can ever be given the constitutional power over presidential nominations and elections it currently may, at its sole discretion, exercise over congressional nominations and elections is by Constitutional Amendment.
(While I'm at it: I, once more, here direct the potentially interested reader to my own proposed Constitutional Amendment that is intended to eliminate the "flaw" in the Federal Constitution of Congress, for the reasons already discussed above, not having full power to regulate presidential elections [and, by extension [under the doctrine suggested by the decision in U.S. v. Classic], the process by which candidates for the Presidency and Vice-Presidency are nominated]. Please note that this proposal is not necessarily one which I myself support wholeheartedly but, rather, my- more or less- playing "Devil's Advocate" by providing a "jumping off point" for further discussion on what the best method for so nominating national candidates might be.
The posting of this, by the way, actually generated at least some comment and such comment was contained in 'vox Populi's [our site's Letters to the Editor] dated 19 January 2004 [two days after my proposed Amendment had been posted] and 16 June 2004, in each case dealing with the potential role for political Parties in the process should my proposed Amendment [however unlikely this might be] become part of the Federal Constitution.)
Nevertheless, Congress, despite its inherent lack of constitutional authority in this arena ("The Constitution-- that pesky thing!" [;-)]), has recently made somewhat half-hearted efforts (hearings have been held: full of high-sounding verbiage from politicians and weak arguments by representatives of the States of Iowa and New Hampshire to justify their favored status within the current Presidential Primary/Caucus scheduling- none of it of any real significance as yet!) to attempt to rectify the current presidential nominating process by simple legislative fiat (good luck, though, having any statute doing just that which might [yeah... right! ;-)] actually be adopted later pass constitutional muster in the U.S. Supreme Court). The talk surrounding such activities has been one of "fairness to the voters in all States" but, as usual, the proposals being bandied about all seem to allow Iowa to still hold the first Caucuses and New Hampshire to still hold the first Presidential Primaries which, of course, is patently unfair!
A Democratic Party loyalist who supported, say, the presidential candidacy of New Mexico's Governor Bill Richardson this time round and who lived in a State that pledged its delegates to the Democratic National Convention on 'Super Duper' Tuesday (5 February) was in a far different situation- as regards his or her Right to Vote as constitutionally determined at the State level- than he or she would have been had that very same voter, instead, been voting in New Hampshire just four weeks earlier (8 January): for the New Hampshire supporter of Governor Richardson faced the prospect of being able to vote for a presidential contender who was still viable at the time his or her vote was cast, while the 'Super Duper' Tuesday Richardson supporter faced the prospect of either voting for the presidential contender they had (as is inherent in his or her Right to Vote) truly wished to be his or her Party's presidential nominee, but one that was no longer in a viable position to win said nomination, or voting for a choice- still viable- who was not at all their preferred candidate for the Party's nomination!
Put another way: the New Hampshire Presidential Primary voter was arbitrarily granted- by mere decree of a political Party (in this case, the Democratic Party)- a Right to Vote innately superior to that of the Presidential Primary voter who happened to reside in a State that had waited to vote (and, indeed, had to wait to vote- if the Democratic National Convention delegation from such a State wished to avoid the very same "death penalty" the national Democratic Party laid on Florida and Michigan) until no earlier than 'Super Duper' Tuesday. If the Right to Vote in what is, in essence, the very same political process (one determining a political Party's nominee for President) is not equal between voters in different States- as it is here not at all equal- then that is the very epitome of unfairness.
It is also the epitome of unconstitutionality, for we here have a clear situation in which citizenship in one State of the American Union is not at all equal to the very same citizenship in another State in that same Union. As the Supreme Court said in the Classic case, [f]rom time immemorial an election to public office has been in point of substance no more and no less than the expression by qualified electors of their choice of candidates but what we had, over the past few months, is the "qualified electors" in at least one State having more freedom to make such a choice than the otherwise equally "qualified electors" in other States. As George Orwell wrote in Animal Farm: "All animals are equal, but some animals are more equal than others": of course (which was Orwell's point) this is hardly the "all... are created Equal" of the American Declaration of Independence and, regardless of the views of the reader of this piece when it comes to just how the verbiage found within the Declaration might interact with that of the Constitution, it is also hardly a "more perfect Union" where one State is purposely placed on a superior plane relative to another, sister State.
Moreover, what is being permitted in the current system of Presidential Primary and Caucus scheduling is the very thing the Court decried in Classic, a situation in which the very schedule itself promotes interference with the effective choice of the voters at the only stage of the election procedure when their choice is of significance, since it is at the only stage when such interference could have any practical effect on the ultimate result (in this case, the "ultimate result" was- in this hypothetical exercise- the practical removal of Governor Bill Richardson as a viable contender for the Democratic Party's presidential nomination before most Democrats even had a chance to weigh in on whether or not he was, indeed, the presidential nominee they themselves might have wanted!)
And almost none of the proposals being most seriously advanced to correct this even come remotely close to addressing this very issue:
A 'vox Populi' dated 3 August 2007 from a professor at Miami University of Ohio, for example, suggested an organized, even logical, schedule of Primaries and Caucuses but it, too, places Iowa and New Hampshire in their usual, most favored, position and, therefore, does nothing at all to alleviate the, thereby, built-in unfairness to too many States within the current manner of scheduling National Convention delegate selection events. The professor, for example, noted that his "smaller-to-larger [state] system is modified slightly to allow for some grouping by region and ensure that there is no major political bias between the early states and the Super Tuesday states at the end" when, in reality, his proposal is- by very definition- fairly laced with the ultimate political bias of still allowing the voters in some states, those voting earlier, to be able to freely choose among more presidential contenders than the voters in other states that will have to be scheduled to vote later under whatever form of the professor's proposal might be adopted.
The same would also be true of the so-called "rotating regional Primaries/Caucus schedule", in which States in the same section of the country would all hold their delegate selection events on the same day and the Primary/Caucus schedule then moves from section to section week-to-week (in some versions of this, the chronological order of sections is determined by lot so that this order would be different every four years); but, whether or not Iowa and New Hampshire still get to go first in the various and sundry versions of this I have seen over the years, it still does not eliminate the fact that presidential contenders who get comparably fewer votes in the first week or two of such a system will, almost certainly, still be forced out of the race before the states that are scheduled to go last have even gotten to vote at all!
Through all of this, too. there ever remains the issue of just how any of these proposals would be implemented in any event, considering that- for the reasons I have already discussed- Congress does not have the power to do so! And, where Congress does not have constitutional power, such things are- by terms of the Federal Constitution itself- reserved to the next level of dual sovereignty in the American Federal system, the States (per the document's own 10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the People).
Thus, we are merely left (again, absent a Constitutional Amendment giving Congress a power it currently does not have) with what we now see in 2008: arm-wrestling over who has the real power to determine how each Major Party's candidates for President and Vice-President are nominated-- the Parties themselves or the States? And it is here that the language of the late Justice Marshall's dissent in O'Brien (quoted extensively in PART TWO of this series) comes into play:
I watched an interview with former President Bill Clinton the other day in which he said- repeating something the Florida Democratic Party has itself also stated- that it is the Republicans in Florida who are most responsible for what is happening to the Democratic National Convention delegation from Florida (it still facing the possibility of not being seated at the Convention in Denver) because the Democrats in the Florida Legislature controlled by Republicans attempted to amend the law which would move the State's Presidential Primary up to a date that was "too early" under Democratic Party rules. The argument here being made is that, since the Democrats in the Florida Legislature tried, and failed, to not have the Presidential Primary so moved up, it is the Republicans- and not they themselves- who foisted this upon the voters of the Sunshine State, thereby creating a situation in which National Convention delegations have been sanctioned by national Parties.
Put aside the fact that the Florida law, even without having been amended by the Democrats, passed by a vote of 37-2 in the State Senate and 118-0 in the State House of Representatives (so how many Democrats actually opposed this?-- and don't give me any of that "I didn't like the bill, but I voted for it anyway" crap!), Justice Marshall's words from 36 years ago can themselves be so easily thrown back at this lame argument.
Marshall, again, wrote that while [i]t is suggested that California at least, cannot be charged with responsibility for the rules that are challenged there, because California by law sought (albeit unsuccessfully) to prohibit the Party from adopting those rules, [t]hat argument is somewhat disingenuous, however, unless it can seriously be contended that California will decline to recognize on its ballot in the general election the nominee of the Democratic convention. For so long as the State recognizes and adopts the fruits of the primary as it was actually conducted, the State has made that primary an integral part of the election process, and infused the primary with state action, no matter how vociferously it may protest. A State cannot render the action of officials "private" and strip it of its character as state action, merely by disapproving that action. Change the references to "California" in this quotation to "Florida" and one can easily see that any claim that, by unsuccessfully attempting to amend the eventual law that moved Florida's Presidential Primary up to 29 January, the Democratic Party cannot be held accountable for the law that was adopted simply does not hold water!
But let's assume, if only for the sake of this particular argument, that former President Clinton and the Florida Democratic Party are actually correct- that the "punishment" of the Florida Democrats by the Democratic National Committee is pretty much a result of actions taken by a Republican-controlled State legislature and a Republican Governor. Putting aside the fact that the Republican delegation from Florida to that Party's National Convention has been stripped of half its number for the very same reason the Democratic delegation from the Sunshine State received the DNC's "death penalty" (thus, in so "sticking it" to the Florida Democrats, one has to- if one agrees with former President Clinton and other Democrats- assume that the State's GOP intended to also "stick it" to themselves!), the only correct response would be:
For the voters in the Sunshine State- regardless of political Party or lack thereof, regardless of ideological differences within a given Party or between the State's citizens outside of Party- went to the polls and at least a plurality- if not a majority- of same freely chose, at the polls, a State Senate and State House of Representatives that turned out to be predominantly Republican in each chamber's respective membership; the larger number of these same voters also elected a Republican to the Governor's chair. Thus, I have to assume that the People of the State of Florida- or at least most of them (hence the election results)- intended that the most important elective portions of their State government, at this most recent point in their State's history, wanted this very arrangement when it came to who would draft and pass (in the case of the Legislative branch) and approve and execute (in the case of the Executive branch) the laws of the State, including the law that moved the Presidential Primary up to 29 January last.
After all, such is the right of the People of a sovereign State and, as I stated emphatically in PART ONE of this series:
the State of the American Union is, indeed, "sovereign"- as sovereign as the Federal Government of the United States of America of which it is a part... The American Political Party, on the other hand, is not at all sovereign!
Another constituent State of this American Union, the sovereign State of New Hampshire, one as sovereign as- yet no more sovereign than- the State of Florida, has the following provision as part of its own law establishing the date on which it may hold its Presidential Primaries every four years: one that gives its own Secretary of State authority to set a date for such a Primary "7 days or more immediately preceding the date on which any other state shall hold a similar election" with the definition of what constitutes a "similar election" being solely up to the Secretary of State.
Put into plainer English, the New Hampshire statute says, basically, "The Granite State can hold its Presidential Primary whenever it damn well pleases: Live free or die!" ;-)
And, know what? New Hampshire- as a sovereign State of the Union- has the very power to do just that!
However, so does the equally sovereign State of Florida.
So, tell me, just how does the Democratic Party then get the brass to tell the State of Florida- a State the People of which, after going to the polls, freely ended up with a Republican Governor and a Republican legislature- just when it can hold its Presidential Primary? Democrats seem very good at complaining about how the Republicans dictated to them a scenario which led to their State's delegates being denied seats at their Party's Convention, all while their own Party gets away with doing that which they themselves decry! (After all, isn't the Democratic Party here attempting to, just as much, "dictate" terms to the Republican-led Legislature and Governor, by refusing to acknowledge 29 January as having been the State's own legally established Presidential Primary date?)
But, of course, I would never ever accuse those involved in Politics of never ever being hypocritical ;-)
Two years ago, the Democratic National Committee adopted a Primary/Caucus schedule for 2008 in which 4 States were specifically scheduled to hold their respective 'first step" delegate selection events prior to Tuesday 5 February with all other States being permitted to hold their "first step" delegate selection events on or after that date (and, obviously, I have already addressed the inherent unfairness of just such a thing). 5 States violated these rules: 3 among the first 4 by moving their Primaries up (only Nevada ended up holding its Caucuses on the date originally scheduled), 2 others by moving their Primaries up to dates prior to 5 February. Only the latter two were "punished" by the Democratic Party and such selective punishment (in order to allow the Right to Vote in some States to, indeed, be superior to that in other States for Party purposes) is, indeed, the very interference with the effective choice of the voters at the only stage of the election procedure when their choice is of significance of U.S. v. Classic.
The argument is made that the Democratic Party is not a governmental agency and, therefore, can determine its own schedule of Primaries and Caucuses to suit its own purposes. But, if the Party is- in fact- not a governmental agency, then it doesn't at all have the sovereign power to so schedule Primaries and Caucuses that a State has.
The responses I have seen to this, or similar, rebuttal to the Party's original argument is that a political Party is an organization of persons freely committed to the policies and agenda of that Party, the result of the right of the People to freely associate for such a purpose. Except for one thing: re-read the Reserved Powers Clause that is the essence of the 10th Amendment-- such powers as are not claimed by, or available to, the Federal Government are reserved to the States, respectively, or to the People; in other words: sovereign States trump the People of those States (insofar as the arcane, day-to-day operations of the political Party to which such of the People who might be members of the Party belong are concerned; a State, of course, cannot at all interfere with an individual's right to freely associate with the political Party of one's choice: on the other hand, such Freedom of Association cannot itself interfere with the State's own inherent power to schedule its elections in a manner with which a political Party might not agree!).
If a State of the Union wishes to (as some have actually done) simply leave the scheduling and carrying out of a National Convention delegate selection event, such as a Presidential Primary or a Caucus, to the political Parties themselves, then fine-- it can always do so: in such a case, all rights and privileges- as well as concomitant powers and duties- related to such a Primary or Caucus are reserved to the People who freely choose to be members of said Parties. But, at any time, the State- as sovereign- can always reclaim the power it always inherently ever has- by virtue of its own State Constitution- over its own elections (absent, again, any congressional authority over said elections or, where such authority exists [recall my differentiation earlier between the broad power of Congress over congressional elections and its much narrower power over presidential elections, a differentiation that- again- can only be done away with by Constitutional Amendment], Congress not yet exercising same).
At the same time, in those States in which a political Party is granted authority to, on its own, regulate the means and methods by which the Party members in said State have an influence over who becomes the presidential nominee of that same Party at the national level, the State branch of the Party becomes, by definition, an agent of the State and is required to protect the Right to Vote of those it allows to participate in a Presidential Primary or Caucus no less than the State itself is required to were the same National Convention delegate selection events being conducted by the State itself. To quote the Supreme Court in Allwright: The privilege of membership in a party may be, as this Court said in Grovey v. Townsend, no concern of the state. But when, as here, that privilege is also the essential qualification for voting in a primary to select nominees for a general election, the state makes the action of the party the action of the state.
It is no less where the national organization of a political Party is concerned: if we assume, if only for the sake of this argument, that the Democratic Party has the very power to schedule Presidential Primaries and Caucuses as it did back in 2006, it cannot do so in a manner that dilutes the Right to Vote in one State to the benefit of what, then, becomes a superior Right to Vote in another State. And it, most certainly, cannot dictate to a sovereign State of the American Union when that State can hold an election!
So, what should happen?
The Democratic National Convention delegations from both Florida and Michigan should be seated at the Convention in Denver exactly as pledged: assuming that the delegate counts seen on 'The Green Papers' are at least reasonably accurate and properly calculated according to the original rules for each State's respective Presidential Primary and based on the best election returns data available to this website as of this typing, then--
Senator Hillary Clinton of New York should receive the formal pledges of 105 delegates from Florida and 73 delegates from Michigan;
Senator Barack Obama of Illinois should receive the formal pledges of 67 delegates from Florida;
former Senator John Edwards of North Carolina should receive the pledges of 13 delegates from Florida;
and 55 pledged delegates from Michigan should be formally 'Uncommitted' (that is, not specifically pledged to any candidate [this, by the way, is different from being 'Unpledged': an 'Unpledged' delegate is one who goes to a Convention as a "free agent" without being specifically pledged as such; an 'Uncommitted' delegate, on the other hand, is- oxymoronically- pledged to be a "free agent" at the Convention. Yes, it is something of a technical difference, but a difference nonetheless: the 'Uncommitted' delegate is a "free agent" because the voters said he or she should be, not by virtue of an automatic grant- by a Party hierarchy- of a vote, as a "free agent", at the Convention, as is the case with an 'Unpledged' delegate.)
Meanwhile, each State- Florida and Michigan- should also (speaking of which) receive the number of 'Unpledged' Party Leaders/Elected Officials (that is, "superdelegates") to which they might be entitled under the same rules used by the Democratic Party to determine the number of such Unpledged PLEOs/"superdelegates" for all other jurisdictions entitled to send delegations to the 2008 Democratic National Convention.
Because the dates for the Presidential Primaries in both Florida and Michigan were set by State law, duly adopted according to the provisions of each State's own Constitution (documents that the Democratic National Committee has no authority whatsoever to alter, or interfere with the workings of, at their own convenience) and said Primaries were, indeed, held on the dates so legally established by the States: qualified voters voted therein and, in order for their Right to Vote to be a Right both affirmative and enforceable, the pledges of the National Convention delegates determined by the results of the voting in each State should stand.
The argument is made that the presidential contenders didn't get a chance to campaign in Florida. Put aside that the phrase "didn't get a chance to campaign" is, in reality, a code word for "didn't get to shill the State for money", Florida Democrats turned out in veritable droves to vote in a Presidential Primary that they were already being told wouldn't at all count! In addition, the same cable news outlets and over-the-air broadcast network newscasts and Sunday morning discussion shows that I can watch here in my State of New Jersey were also being seen, at the very same time, in the State of Florida; thus, you can't tell me- with a straight face- that most voters in Florida did not know who Hillary Clinton was and what she was saying, or who Barack Obama might be and what he was saying (Florida voted at one of the heights of Obama's publicity, coming off his victory in South Carolina but three days earlier!), or who John Edwards- who had yet to suspend his campaign- was and what he had been saying.
I've been doing what I do for 'The Green Papers' for a long time now: so... Puh-LEEZE!!!
And the same is also true of Michigan:
In addition, as regards the Wolverine State, further argument is made that Senator Hillary Clinton was the only one on the ballot in Michigan, thus to count Michigan's delegates as they were pledged in that State's Primary is inherently unfair. I find it most interesting that this same argument is advanced by both the Clinton camp and the Obama camp and, regardless of which campaign happens to bring it up, this argument is no less disingenuous.
Senator Obama chose to not have his name on the Michigan ballot- thus, he has no real complaint. And he did so (along with all those other Democratic presidential contenders who likewise did the same) in order to more attract the support of voters in Iowa and, by extension, New Hampshire by so openly demonstrating his feeling that Michigan should not have been allowed to move its Primary up (although, of course, Obama was also here suggesting that New Hampshire could do the very thing Michigan should not have been allowed to do). Ironically, Obama may very well have actually come in first in the Iowa Caucuses, at least to some extent, by virtue of having so taken his name off of the Michigan ballot. For had Obama not won Iowa, he would not now still be in the hunt for his Party's presidential nomination. Thus, the plaintive cries of the Obama campaign now when it comes to Michigan is a clear case of "having one's cake and eating it, too"!
Meanwhile, the Clinton camp suggests that Michigan was nothing but an "anti-Hillary" crusade. But, of course, Senator Clinton chose to leave her name on the ballot there; when she ended up the only Democratic presidential contender on the ballot, what did she expect once the Primary was actually held?
In the end, though, none of this at all matters.
Because, again, States are sovereign; political Parties are not.
The Presidential Primaries in Florida and Michigan are just as much an integral part of the machinery of nominating candidates for the Presidency from which the next President of the United States will be elected as the Presidential Primaries and/or Caucus/Convention systems in any other State happen to be. To quote Justice Thurgood Marshall's dissent in O'Brien: Where the primary is by law made an integral part of the election machinery, then the right to vote at that primary is protected just as is the right to vote at the election, just as both the Classic and Allwright decisions state. More to the point: the Right to Vote in Florida and Michigan cannot constitutionally be less than the Right to Vote in any other sovereign State by mere declaration of a non-sovereign political Party.
And. lest anyone reading this piece think I have been picking only on the Democrats, let me here make it clear that the same goes for the Republicans as well:
I have purposely concentrated, in the series of my Commentaries under the above title, on the Democratic side of the 2008 National Convention delegate disputes for the following reasons only:
1. The Democratic presidential nomination is- as of this typing- still undecided; thus, the concentration of the world of political punditry is on the "death penalty" applied to the Florida and Michigan Democratic National Convention delegations by the national Democratic Party and how resolving the Florida and Michigan situations might yet come to affect the ultimate outcome of the Democratic presidential nomination contest. Since this is the story of moment, I decided to look at the issues I raised in this series from the angle of the Democrats and put aside the Republican's own delegate seating issues.
2. The best example I could find of judicial involvement in a National Convention delegate seating dispute was O'Brien v. Brown which involved a dispute revolving around an earlier Democratic National Convention. It made more sense to then apply the, perhaps, "foreshadowings" flowing out of the O'Brien case to the current dispute involving the very same Party.
3. The late Justice Thurgood Marshall is, in many ways, looked upon by the Democrats as "one of their own": for instance, his non-jurist public career, first as an attorney for the National Association for the Advancement of Colored People (NAACP), a man who argued the anti-segregation case of Brown v. Board of Education of Topeka [347 U.S. 483 (1954)] before the very U.S. Supreme Court on which he was later to serve and, later, as (briefly) President Lyndon Johnson's Solicitor General, had him advancing elements of a political agenda more closely identified, historically, with the Democratic Party. Applying elements of his dissent in O'Brien to the current delegate dispute on the Democratic side, then, was a fairer method through which to confront and examine the constitutional issues involved.
None of this, however, at all lets the Republicans off the hook! For, like the Democratic Party, the Republican Party is not at all sovereign either.
Interestingly, the Grand Old Party had set Tuesday 5 February as a "hard" starting date for pledging delegates to the Republican National Convention and I will here give the GOP all due "props" for having the brass to sanction (by stripping "offending" States of half of their respective Republican National Convention delegations) New Hampshire along with four other States that held delegate pledging events prior to that "starting date" (Iowa slides here because the "dirty open secret" about the Hawkeye State is that their Caucuses- for all the undeserved attention paid to their results- don't directly pledge any National Convention delegates: in fact, as I type this in late mid-March 2008, some 2 1/2 months after the Iowa Caucuses were held this time round, Iowa has yet to formally pledge any National Convention delegates re: either Major Party! Since Iowa's Caucuses- unlike New Hampshire's Primary [or the delegate selection events in the other four States sanctioned by the GOP]- did not pledge National Convention delegates before 5 February, Iowa will get to seat its full Republican National Convention delegation in St. Paul. The same is true of Nevada, which also held a delegate selection event prior to 5 February but, as in Iowa, not one that actually pledged National Convention delegates before that date.)
Having so noted this, however: the Republican Party- any more than the Democratic Party- has no inherent power to even set such a "starting date". Again, the States have the sovereign, constitutional authority to set the dates for their own elections- including Primary elections: including Presidential Primaries.
Thus, the Republican National Convention should seat full, non-sanctioned National Convention delegations from the 5 "offending" States (in chronological order of their "offending" delegate selection events: Wyoming, New Hampshire, Michigan, South Carolina and Florida) for the very same reasons that I have argued above in favor of the Democratic National Convention seating Florida's and Michigan's delegations to that Party's National Convention.
What about the argument that the Parties should be allowed, as institutions, to decide for themselves who can sit on the floor of their respective National Conventions and vote on the Roll Call of the States re: Presidential Nomination? (In other words: what about the argument that- yeah, assuming States do have the unfettered power to set the dates for their Presidential Primaries- the Parties ever retain the authority to decide whether or not to recognize the results of said Primaries as they apply to the pledging of National Convention delegations amongst presidential contenders?)--
the answer to this argument takes us right back to Justice Marshall's dissent in O'Brien which, itself, flows from Classic (as well as Allwright), where Marshall wrote that [t]he primary process was, by State law, the first step in a process designed to select a Democratic candidate for President; the State will include [presidential] electors pledged to that candidate on the ballot in the general election; the State is intertwined in the process at every step, not only authorizing the primary but conducting it, and adopting its result for use in the general election. In these circumstances, the primary must be regarded as an integral part of the general election and [w]here the primary is by law made an integral part of the election machinery, then the right to vote at that primary is protected just as is the right to vote at the election.
Simply put, then: unless and until the news someday breaks that either the Democratic Party or Republican Party- where not both- do not wish Presidential Electors for their respective Party's nominees for President and Vice-President to potentially be "appointed" via the November General Election ballot in any State of this Union (as the Legislature in each and every State has "direct"ed, under the powers left to the States as regards Presidential Elections in Article II, Section 1, clause 2 of the Constitution of the United States), such an argument has no merit whatsoever.
Neither does any argument that allows non-sovereign Parties to so trample upon the constitutional powers of the sovereign States of the American Union and, by extension, the equally constitutional Right to Vote of the People of said States!