Thursday, December 4, 2008

Runoffs and term limits

Except as otherwise provided in this Code section, no candidate shall be nominated for public office in any primary or special primary or elected to public office in any election or special election unless such candidate shall have received a majority of the votes cast to fill such nomination or public office. In instances where no candidate receives a majority of the votes cast, a run-off primary, special primary runoff, run-off election, or special election runoff between the candidates receiving the two highest numbers of votes shall be held." -- Official Code of Georgia Annotated § 21-2-501(a).

... And this is why, in the four weeks between the November election day and this past Tuesday, every night when I got home from work there were robot messages on my voice mail. I had Saxby Chambliss asking me to vote for him, Mrs. Chambliss requesting that I support her husband, President-elect Obama encouraging that I vote for Jim Martin--you name it, if it was a robot call I got it.

Well it's all over, and Chambliss will return to the Senate to represent the people of Georgia. What's intriguing to me is the difference between my state and Minnesota, the other state without a clear result in their senate race on November 4th. It looks now as though Norm Coleman will prevail, but if you take a look at the vote totals from the Land of a Thousand Lakes, you see that neither Coleman nor Al Franken got anywhere near a majority of the vote. In other words, if Minnesota had Georgia's law about elections, all this talk about recounts and court challenges up there would have been moot--Coleman and Franken would simply have had to square off again the way Chambliss and Martin did.

Now I'm not going to argue that Minnesota should adopt our law; that's for the people up there to decide. But what I would like to call your attention to is the way in which the difference between what's happened in Georgia and Minnesota in regard to the senatorial elections casts some doubt on the wisdom of a U.S. Supreme Court decision.

In U.S. Term Limits v. Thornton, 514 U.S. 779 (1995), the high court struck down--by a bare majority--an amendment to the Arkansas state constitution, adopted by the voters, to enforce term limits on the state's representatives in Congress. Writing for the majority, Justice Stevens held that the clauses in Article 1 of the U.S. Constitution spelling out the qualifications for members of the House and the Senate are complete as they stand, and that individual states cannot alter them. As Stevens put it:

"Permitting individual States to formulate diverse qualifications for their representatives would result in a patchwork of state qualifications, undermining the uniformity and the national character that the Framers envisioned and sought to ensure." Thornton at 822.

In other words, a member of the House of Representatives has to meet three and only three criteria: he must be at least twenty-five, he has to have been a U.S. citizen for at least seven years, and he must be an inhabitant of the state he's trying to get elected to serve (Article 1, Section 2). That's the sum of it, ruled the majority, a state can't say that there is any additional requirement a candidate must meet. To require, as the Arkansas amendment did, that someone could only be a Congressman if he hadn't been one for three terms already, would be adding a qualification.

Balderdash, wrote Justice Thomas for the four dissenters. He viewed the qualifications as minimum standards set by the federal government, not an exclusive clause denying any state power to add further requirements. Furthermore, Thomas argued, states had, in fact, been adding qualifications to those spelled out by the Constitution long before the term limit controversy arose. Thomas noted that Florida disqualified anyone from Congress if they had been found mentally incompetent, Illinois law said no one could serve if they were currently in prison, and Georgia required that its congressional candidates not have been convicted of vote fraud (Thornton at 917). Did the majority mean that these additional qualifications added by individual states were also unconstitutional, Thomas wondered? (One might cynically wonder how many people actually serving in Congress are mentally incompetent, have stolen votes, or will eventually wind up in prison.)

But what struck me about Thomas's dissent was that he didn't mention anything about states like Georgia having runoff elections. Isn't that a case of individual states adding qualifications? The federal Constitution says nothing about runoffs, and a lot of states don't have them. It appears that Norm Coleman will become the next Minnesota senator even though he received less than 42% of the vote. Saxby Chambliss, on the other hand, got 49.75% of the vote the very same election, beating Jim Martin by over a hundred nine thousand votes, and yet he had to jump through another hoop, defeating Martin again in a runoff. So the candidate in Georgia has a hurdle to clear that his counterpart in Minnesota, where only a plurality of the vote is required, does not have to leap. Those are differences between the two states well beyond anything said in the Qualifications Clauses of the U.S. Constitution--a "patchwork of state qualifications" as Justice Stevens might say.

I think it's debatable that term limits are "qualifications" at all, based on the plain meaning of the word. But if you say that term limits ARE a qualification, it's difficult for me to see that requiring a runoff for any election where no candidate received more than fifty percent plus one of the vote isn't a qualification also.


Shimmy said...

Well, Saxby Chambliss looks in the mirror and sees a baby-blue-eyed spirit with a bad knee. Saxby Chambliss freed Max Cleland and a Yemeni cargo ship after Sarah Palin paid a ransom of B-major with five sharps and a hissy fit.

John Cowan said...

In any case, the House can expel a member with a two-thirds vote, and their reasons do not have to pass Constitutional muster. So far, three have been expelled for supporting secession, and two for bribery and corruption.

Shimmy: Whatever.