The last word on the law

 

The last word on the law

Courts or legislatures?

Gordon L. Weil

Who should decide if a law is constitutional?  The courts or the people?

This question does not exist only in an academic ivory tower.  As people increasingly see courts as partisan, it is a real issue.   A Maine case last week focused on it.

The American Constitution is silent on the issue, but the U.S. Supreme Court lost little time in asserting its authority.   It declared that it alone could conduct “judicial review” – deciding if laws are constitutional.  The highest state courts have done the same.

This ruling was authored by Chief Justice John Marshall, a member of the Federalist Party, which was dying.  By taking broad powers for the Court, he would be empowered to use his long tenure to support the Federalist view as a check on the rising Jeffersonian democracy.   Thus, from the outset, the Court was political.

While court decisions are supposedly objective and nonpartisan, it’s obvious that judges’ opinions often reflect their personal philosophy or the positions of the political parties that put them on the bench.  Pledges of neutrality may assure judicial independence, but not objectivity. 

Because judges have known ideological or political leanings, the courts inevitably take on a legislative role.  When they define what the law is, they may substitute their judgment for the lawmakers’ intent and become lawmakers themselves.

Court views may change over time, as when the Supreme Court reversed its earlier pro-abortion decision in Roe v. Wade, causing the public to see the judiciary as essentially legislative and not reliably objective.  As judicial rulings have become more controversial and apparently partisan, public support for the courts has been declining.

If courts become more like legislatures, should legislative bodies representing the people, not the judges, be responsible for deciding on constitutionality?   Two differing answers have come from two states, Maine and Alaska.

They both focused on  ranked choice voting, which modifies how votes are counted in multi-candidate elections, potentially eliminating a candidate winning simply by being “first past the post.”  In 2016, a Maine referendum launched it for federal offices and for state elections of governor, members of the House and senators. 

But the state Supreme Court ruled that the Maine Constitution requirement for election by a “plurality” prevented using RCV for state elections.  It cited the state’s troubled history involving a disputed election that had almost led to armed conflict as the reason for the requirement for a simple plurality.  The Legislature repealed the referendum result.  In 2018, a second Maine referendum approved RCV for federal offices and state primaries, but not for state elections.   

Two years later, Alaska voters narrowly approved RCV for both federal and state elections.  In 2022, the Alaska Supreme Court ruled that the Alaska Constitution, requiring “the greatest number of votes” to be elected, allows for RCV.   It attacked the earlier Maine decision for failing to take good election policy into account.  As in Maine, Alaska voters decided a second time on RCV, retaining it by a margin of 664 votes out of 340,110.

In a ruling last week, the Maine justices unanimously rejected Alaska’s unusually harsh criticism, and explained the detailed vote counting procedures laid out in the Maine Constitution, requirements that are absent in Alaska.

In Alaska, the will of the voters, expressed by a slim majority in a referendum, dictated the Court’s determination of what the State Constitution meant.  The Court concluded that RCV is constitutional, based on its political judgment of the “State’s interests in allowing voters to express more nuanced preferences through their votes….”

In Maine, RCV proponents asked the Court also to follow referendum results and its successful use in the state’s elections for federal offices.  The justices would not agree, finding that the Constitution’s definition of “vote” in state elections means the ballot cast by the voter that must be counted in their municipality, which precludes RCV.

In the U.S., the highest court, federal or state, usually decides on the constitutionality of laws.  In Britain, without a written constitution, the Supreme Court accepts Acts of Parliament as being constitutional.   In the RCV rulings, Maine had retained its traditional judicial review authority, while Alaska deferred to a referendum, a legislative act, leaning toward the British model.

Because American courts, with unelected membership, are increasingly seen as legislative bodies, adopting the British system of allowing the elected legislature to decide on constitutionality might seem to be a realistic alternative.  But there’s no chance of dropping judicial review. 

A hybrid solution could allow court decisions on constitutionality to be overridden by a legislative body, voting by a super majority vote within a fixed period after the court’s ruling.  Marshall’s concept of judicial review is not included in the U.S. Constitution, so this change could be made by law.

Election reforms don't work

 

Gordon L. Weil

Jared Golden has a good point.  The Democrat represents Maine’s Second District, which has always backed Trump, and has previously won elections thanks to Ranked-Choice Voting. But he found this year that it may not make sense.

RCV and the proposed National Popular Vote that would displace the Electoral College, are reforms that can reduce democratic government set out in the Constitution.

The great British Prime Minister Winston Churchill once recalled that “democracy is the worst form of government except for all the other forms.”  Democracy is messy and inefficient to ensure that decisions will be carefully made to reflect a thoughtful popular will.  RCV and NPV may be more efficient, but they could undermine popular democracy.

American elections have traditionally been conducted by plurality voting – electing the person with the most votes, even if not an absolute majority.  The Maine Constitution requires it for state elective offices, but uses RCV for federal and party elections. 

In some states and municipalities, when the winner does not top 50 percent, a run-off must be held among the leading finishers.  That makes sense and allows two real votes, often between candidates of two parties.  The second election gives voters a new choice after a brief campaign and taking into account the latest political developments.

The traditional system has worked reasonably well.  RCV eliminates both the plurality and the run-off.  Voters may get to pre-select a back-up if their favorite does not make a strong enough showing to win outright.  That’s a bit like saying you’ll get the side dish for dinner if they run out of your entree, but you won’t have the chance to select again from the main menu.

Maine has a rule that the first choice can be left blank with a voter either picking a second choice or leaving the entire RCV choice empty.  Either way that RCV ballot counts, even if it denies the victory to the majority winner, Golden in this case, because the vacant ballots must be counted as if they were a candidate choice.  That’s absurd.

Another alternative to tradition is the “jungle primary.” All party candidates and independents run in a single election. Then the top finishers go to a real run-off. 

California uses the system with a “top-two” result. This year, a Democrat influenced the first- round vote so that it would yield him a second-round race against a Republican rather than against another popular Democrat.  In effect, he turned the “jungle primary” back into a traditional run-off.  That was not the intent.

As for the NPV, it supposedly would yield a single national vote for president.  Democrats favor it, given two recent elections in which a Republican won the electoral vote while losing the popular vote across the country.  The U.S. has never held a nationwide vote.

The NPV has been approved only in states under Democratic control.  The goal is to allow the popular majority, which the Democrats have believed is theirs, to override the electoral vote that enhances the influence of small, rural states.  Their majorities in California and New York would create a national popular majority that could swamp GOP wins in many small states.

Obviously, the Democrats worried that, for a second time, Donald Trump would win the electoral vote but lose the popular vote, again making the case for NPV.  By winning a popular majority, President-elect Trump has undermined the NPV case.

Linked to the NPV is the call for ending the Constitution’s electoral voting system under which each state automatically receives a minimum of three electoral votes.  That gives an individual voter in a small state more voting power than one in a large state.

Aside from the historic fact that, in creating the United States the 13 states demanded this system, it has usually produced a so-called “qualified majority,” in which the popular vote is supplemented by a state vote.  It has worked that way in 55 of the 60 American presidential elections.   This system is used in the EU and Switzerland, among other jurisdictions. 

The electoral vote will not be eliminated, because amending the Constitution has become impossible.  There is no possibility that the constitutionally required 38 states will be able to agree on any change.  Reopening the Constitution is now avoided because of concern that the amendment process could allow for basic rights, long observed, to be modified or abolished.

Alaska, which narrowly adopted RCV, may turn out to have narrowly repealed it this year.  Several states have banned it.   NPV is either futile or unnecessary.  The Electoral College is here to stay.

These unlikely or impossible reforms arise out of the failure of political compromise.  They offer false hope.  Possibly, the only way the national government works these days is when one party dominates it.  That is what has just happened.