[EL] Crayton Response to Paul Edelman

Mon Nov 17 15:14:13 PST 2014

Below is a message that list member Kareem Crayton has had trouble 
posting to the list:

Begin forwarded message:

> *From:* "Crayton, Kareem" <kcrayton at email.unc.edu 
> <mailto:kcrayton at email.unc.edu>>
> *Date:* November 13, 2014 at 11:40:53 PM EST
> *To:* "law-election at department-lists.uci.edu 
> <mailto:law-election at department-lists.uci.edu>" 
> <law-election at department-lists.uci.edu 
> <mailto:law-election at department-lists.uci.edu>>
> *Subject:* *Response to Paul Edelman*
>
After seeing my former colleague Paul Edelman's posting on TN, I thought 
it might prove helpful to shake off my normal consumption mode and 
temporarily produce some material on this list serve.  I note that I 
have had some involvement with the issue -- and with specific clearance 
from the parties, I can share the following general thoughts:

This claim simply asks the court to direct the state to follow the 
constitutional rules that plaintiffs believe apply for any public 
ratification of a constitutional amendment.  The unofficial results 
reported by the state on November 4 do not confirm that the amendment 
gathered a sufficient number of votes under the appropriate counting 
rule.  The reason for the uncertainty is that the reported comparison of 
"yes" and "no" votes was quite close (it was the closest of all proposed 
amendments), a significant number of voters on the amendment did NOT 
vote in the governor's race (we only know the minimum which is not 
small) and no one denies that several categories of votes have not be 
accounted for.  So depending on the counting rule you adopt, there is 
significant doubt that the proposed amendment actually received enough 
votes to pass.

About the "state's traditional counting rule":  According to the 
National Conference of State Legislatures, there have been only seven 
amendments to the TN Constitution in the modern era (not including the 
ones considered in 2014).  If you review them, you'll see that virtually 
all of them passed by substantial margins -- far in excess of any 
threshold that would raise much doubt .  Thus, it's hard to know whether 
the question raised by plaintiffs has ever practically been an issue 
ripe for review by the courts.  The claim only seeks relief with respect 
to Am. 1, which is the only 2014 provision that raises this problem.

TN's courts find that their constitution operates on a literalist/strict 
construction interpretation.  Therefore, the language from Art XI 
referring to citizens casting ballots (as opposed to number of votes or 
threshold numbers, as in other provisions of the document) seems not to 
leave much ambiguity.

Am. 1 in 2014 is the only ballot question that I have EVER seen where 
the total number of ballots returned for a non-candidate matter appear 
to have exceeded the top-line candidate races on the ballot.  It 
certainly distinguishes this particular amendment from others on the 
2014 ballot in TN.  Likely reasons for this result had to do with the 
coordinated strategy by "yes" voters to skip the governor's contest as 
well as the state's surprising move to shift the amendments further up 
the ballot (below the governor's line).

The CA and CO cases that have been referenced don't resolve the problem. 
  Both of the cases involve recalls, which effectively are elections for 
an officer.  The TN case involves a ratification of a constitutional 
amendment -- which is a fundamentally different animal.  And I think 
you'll find it hard to read the language on its own in a manner that 
reaches any conclusion other than that the rule demands a tally of those 
who voted in both races.
Finally, I suspect that after reflection, you'll recognize that there 
are big constitutional problems if the state doesn't limit the count to 
the people who voted on both lines of the ballot.  Assuming the asserted 
reading of the constitutional rule is correct, failing to follow it 
would violate due process AND possibly establish an equal protection 
problem of the Bush v. Gore variety.  If Bush v. Gore means what it says 
(and yes, I understand that's its own seminar), it seems quite peculiar 
to deny people who followed the rules the benefits of their stated 
speech by conflating their votes with those who did **intentionally** 
NOT follow the rules (by NOT speaking in the Gov's race) with the stated 
purpose of inflating the value of their vote.  Further, by doing so, the 
state essentially would be treating people who skipped the governor's 
race as though they selected a candidate.  In that respect, don't the 
speech concerns run in the direction favoring plaintiffs?

A helpful, though not perfect analysis can be found at this link below 
for those interested in learning a bit more:

http://rumspringaprose.wordpress.com/

I should add: I am not likely to say more than this on the list serve. 
  Therefore, you may want to contact me offline if you're interested in 
discussing more.

Cheers,

KC

___________________________________
Kareem U. Crayton, J.D. Ph.D. (Political Science)
Associate Professor of Law
The University of North Carolina
Van Hecke-Wettach Hall
160 Ridge Road
Chapel Hill, NC 27514
kcrayton at unc.edu <mailto:kcrayton at unc.edu>
phone: (919)843-4320
http://www.law.unc.edu/faculty/directory/craytonkareemu/default.aspx
My SSRN page:
http://ssrn.com/author=602663

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