NOTES
Iwish to thank Robert Bennett, Larry Kramer, and Rick Pildes for helpful comments.
1
531 U.S. 98; 121 S. Ct. 525 (2000).
2
121 S. Ct. at 542.
3
121 S. Ct. at 529.
4
Article II of the Constitution provides in relevant part that “Each state shall
appoint, in such Manner as the Legislature thereof may direct, a number of Electors,
equal to the whole number of Senators and Representatives to which the state may
be entitled in Congress.”
5
See New York Times, 36 Days: The Complete Chronicle of the 2000 Presidential
Election Crisis (New York: Times Books, 2001), 300–301. It is not clear, however,
that the Florida legislature's unilateral action would have been consistent with federal
law.
6
See U.S. Const. amend. XVII (1913).
7
See 36 Days, at 319.
8
The 435 congressional districts represented in the House of Representatives
are supposed to be made up of roughly equal size populations. Moreover, the number
of presidential electors assigned to each state is determined by adding two
electors (representing the state's two senators) to a number of electors equivalent
to the number of congressional districts in that state. In 2000 Montana and Wyoming
each had one congressional district and hence 3 presidential electors. California
had 52 congressional districts and 54 electors; New York, 31 congressional
districts and 33 electors. Consistent with this, from the standpoint of the individual
voter, the voter in a small state has a weightier vote than the voter in a large state.
When other considerations are factored in, however, the resulting picture becomes
much more complex. See Robert W. Bennett, “Popular Election of the President
without a Constitutional Amendment, ” this vol., chap. 22.
9
Cf. U.S. Const. art. I, § 2, cl. 1. 3, providing that each slave should be counted
as three-fifths of a person, thus boosting the number of congressional districts and
presidential electors of slave-owning states without having to extend the franchise
to the slave population in the state.
10
See 121 S. Ct. at 541, n4.
11
Id.
12
See 36 Days, at 36–38, 91–92 (describing problems encountered by African
Americans during the 2000 presidential election in Florida).
13
See U.S. Const. art. II, § 1; and amend. XII (1804).
14
See 36 Days, at 32, 34, 36, 152.
15
Id., at 336–37.
16
Id., at 339–40.
17
Id., at 301, 308–9.
18
Id., at 134–35.
19
See U.S. Const. art. II, § 1; and amend. XII (1804).
20
121 S. Ct. at 512 (emphasis added).
21
121 S. Ct. at 513.
22
See Antonin Scalia, “Common-Law Courts in a Civil-Law System: The Role
-142-
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information:
Book title: The Longest Night: Polemics and Perspectives on Election 2000.
Contributors: Arthur J. Jacobson - Editor, Michel Rosenfeld - Editor.
Publisher: University of California Press.
Place of publication: Berkeley, CA.
Publication year: 2002.
Page number: 142.
This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.
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