October 29, 2008

"Is a 2004 amendment to Alaska's law on Governors appointing replacement Senators void?"

Simon says yes.

10 comments:

Mortimer Brezny said...

Simon is probably right, but I'm not exactly sure why the legislature can't pass a law that delegates the authority to another in-state actor.

Joe said...

Yet one more argument to fix and replace the 17th amendment.

Revenant said...

It seems to me that the legislature should be able to delegate its power to the people. Whether or not the courts would agree, I have no idea.

I would like to see this addressed, though, because if the courts find that a referendum CAN do this, that would strongly imply that California could pass a referendum allowing electors to be distributed based on district rather than as a solid bloc.

Simon said...

Ann, thanks for the link; Mort and Rev, both those questions are answered in the post I rely on in the post that Ann linked to. (It was written in direct response to the California initiative you mention, Rev, and concludes that the proposal was invalid.)

Freder Frederson said...

Yeah, I always go to tech support for advice on sticky points of constitutional interpretation.

Revenant said...

Simon, I'm aware of your opinions regarding California. I'm just curious how the Court itself will rule.

mcg said...

Freder, quit being such a doyle.

jjoakl said...

I've been wondering how Gov. Palin could keep herself in the public eye if her bid for the Vice Presidency is not successful. (Recall that Ronald Reagan was able to stay fresh in the minds of voters with a weekly syndicated radio address after his failed runs.)

Then, along came the Sen. Stevens conviction. Maybe he could be useful, after all.

A Sen. Palin, I believe, would attract a good bit of media attention in Congress, and keep her in the public eye in preparation for a 2012 run.

Simon said...

Rev, I don't know; but - let me put it this way, with a doff of the hat to Trooper. have you ever seen the movie version of The Hunt for Red October? The USS Dallas has been encountering a signal contact it can't identify. The sonar dude gets out a map on which the contact locations are marked; he puts a ruler on the map and draws a line straight through every contact point, and runs the line out along the map - directly into the entrace to a known Sovet sub route. It's a very neat scene (very underrated performance by Alec Baldwin, that movie, and Poledouris really pulled out the stops). So, similar to that, I don't know where the court will end up, but I think that there's a line that runs directly through McPherson v. Blacker, Bush v. Palm Beach County and the Chief Justice's concurrence in Bush v. Gore, and I think that line runs directly through the analysis I offered. Of course, the difference is that the Red October had one captain throughout...

Revenant said...

Simon, I think there are several problems with that "line" you're drawing. First of all, unless I'm missing something Blacker didn't rule out the legislature allowing voters to directly choose how electors would be appointed, it just ruled out other branches of the government having that power.

Secondly, in Palm Beach the Court kicked the ball back to Florida with a request for clarification. You could put a line to *anywhere* through that point.

Finally, the Chief Justice's opinion on Bush v. Gore was only joined by two justices. Since Rehnquist is now dead, even if you assume that both Alito and Roberts agree with that opinion that still only gives you four votes supporting that opinion. So that ruling clearly doesn't belong on the line, because if the current court was asked to rule solely on that question it would pretty clearly find that Rehnquist was wrong.

So in summary, I don't see how you're drawing that "line". The beginning point doesn't seem terribly supportive, the middle point is vague, and the final point is clearly a minority opinion. The only way I can see a majority holding with that view this time around is if some of the more results-oriented liberal justices decided to save California for the Democrats -- and quite honestly I think at least a few of the conservative judges would reach the exact opposite conclusion for similarly results-oriented reasons.