A Moot Point: Final Thoughts on the 2008 Election Symposium

Robert Magee, Staff Writer, RMagee@albanylaw.edu

     Today, Albany Law School was host to the Election 2008 Symposium. It was the product of collaboration between no fewer than 11 of Albany Law School’s politically oriented student groups, from the OUTLaws to the ALS Republicans, brought together by the Albany Government Law Review’s own Ali Chaudry.  The symposium’s presence, ensconced in the third floor of a law school situated in the capital of state in which participation in presidential politics has been a futile act for as long as most of us can remember was a poetic exercise in democratic innovation.

     The premise of the symposium was that local politicos would stand in for the McCain and Obama campaigns to talk with the local polity about The Issues as a means of facilitating a discussion about who to vote for next Tuesday or (more likely) the fleshing out of our existing decision. 

     The opportunity to do so is a rare one in a state like New York which has been spared (or denied) down and dirty presidential politicking.  Those few occasions in which the national campaigns appear in the state occur in sterile and predictable settings.1  Even this most momentous, long, tumultuous presidential election has pitched and heaved just beyond New York’s boarders in Pennsylvania2 or, during the primaries, New Hampshire.3

      New York’s persona non grata status is conferred upon it by the Electoral College.  The college itself is the product of compromise.  As a political invention, it is the product of the Constitutional Convention’s foundational controversy over whether population or mere statehood should determine representative power in the national government.4  As a compromise to reality it was an alternative to the “extreme inconveniency [and] the considerable expense, of drawing together men from all the States for the single purpose of electing the Chief Magistrate.”5  To further confuse its purpose, the Electoral College was originally proposed on June 1, 1787 by James Wilson of Pennsylvania as a plan to divide states into districts which would appoint an elector to vote for the President as a means of cutting out state participation in presidential elections altogether.6

      The manifestation of the Electoral College in the current iteration of American republicanism, while liberating to third party voters7, is something far less for minority party members in majority dominated states, like New York.8  In states like New York, which last went Republican 24 years ago (for Reagan), the Electoral system inevitably leaves Democrats feeling left out.  For Republican, the United States might as well appoint the President.  But for the significant respite of local politics and the votes of the Southern Bloc, New York Republicans would be foreclosed almost entirely from political life and would succumb to an irrepressible tyranny of the majority, a tyranny all the more unbearable for its imposition almost entirely by New York City on the rest of the state.9

      New York Republicans must wake up every day to presidential election coverage and face the reality that New York is a solid blue state and when it comes to the election their votes, their voices, will be effectively mute.  The same is true of Republicans in California or Democrats in Texas.

     The premise of democratic government is that the consent and input of the governed should be periodically divined and the ruling structure modified accordingly.  This, in turn, requires a means by which citizens can express their consent or lack thereof to the existing structure.  This expression, when made by New Yorker voting Republican, or a Texan voting Democrat, never reaches Washington.  It never even reaches the Electoral College.  Instead, it’s absorbed by the N.Y.S. Board of Elections, duly counted (at least theoretically10) measured against the inevitable greater number of Democratic ballots and thrown out as the state hands over all of its electors to the Democrats.11

     The only reason that this is at all a tolerable state of affairs is because of the apparently immutable truth that all’s well that ends well.  In elections, the voice of the people speaking in the aggregate is ultimately satiated.12  But this doesn’t completely dispel the brutal realization which will inevitably befall New York Republicans this Tuesday, when they go to pull the lever for McCain, there there may as well be no gears behind it. Regardless of their status as ‘the governed’ their consent is drowned out by what we might call the Tyranny of 1787; an antiquated, impractical system that was awkward from Day 1 and has continued to make less and less sense as our country has evolved.

      That’s why today’s symposium took on the air of a resistance meeting.  Thomas Jefferson, writing at the outset of the Declaration of the Independence wrote that “[w]hen in the Course of Human Events it becomes necessary for one people to dissolve the political bands which have connected them with another”13 before going on to list all the reasons for why we were embarking the grand Republican experiment.  What we saw today at Albany Law School functioned on this idea, but it did so in the reverse.  What we saw was an attempt to reattach those bonds, to assert the role the citizens of New York want to play in the Presidential election.  It was a quiet assertion that we are still here and that whenever the electoral process is properly modified to bring New York into the discussion, that we’ll be ready.  

____________________________________________________________

1 One thinks of the 2004 Republican National Convention and the final debate between Senator’s McCain and Obama.

2 Swing State: Pennsylvania, McCain’s Last State, The Economist, Oct. 23, 2008, at 79.

3 Matt Stearns, Eyes on a Changing New Hampshire, U.S.A. Today, Jan. 4, 2008, at A.

4 See Matthew J. Festa, The Origins and Constitutionality of State Unit Voting the Electoral College, 54 Vand. L. Rev. 2099, 2109-12 (2001).

5 2 The Records of the Federal Convention of 1787, at 95 (Max Farrand ed., 1966)

6 Festa, supra note 5, at 2110.

7 Jimmy Vielkind, 400 Hear Presidential Candidate Nader, Alb. Times Union, Oct. 17, 2008, available at http://timesunion.com/AspStories/story.asp?storyID=730320. 

8 Stanely Chang, Updating the Electoral College: The National Popular Vote Legislation, 44 Harv. J. on Legis. 205, 215 (2007).

9 See Rodriguez v. Pataki, 308 F.Supp. 346 (S.D. N.Y. 2004) (ruling on a gerrymandering controversy arising out of the state’s lack of political balance).

10 Editorial, The Board of Election’s Integrity at Stake, Alb. Times Union, Feb. 20, 2005, at E4.

11 …or Republicans.  This last step occurs in every state except Maine and Nebraska, which allocate their electors proportionately to between the two.

12 With one very notable exception. See Bush v. Gore, 531 U.S. 98 (2000).

13 The Declaration of Independence para. 1 (U.S. 1776).

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Filed under Constitutional Law, Election 2008 Symposium, Election Law

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