election-law_gl-digest     Sunday, October 7 2001     Volume 01 : Number 079




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Date: Mon, 08 Oct 2001 10:22:53 +1000
From: "Tom Round [work]" <T.Round@mailbox.gu.edu.au>
Subject: Re: Vote-by-Mail Law Upheld on Appeal

A question regarding the Supreme Court's interpretation of the "uniform 
federal election day" statute. (Although not an American I find your 
country's constitutional and electoral procedures most interesting.) In 
effect, the Court has held that Louisiana cannot copy its mother country 
(so to speak) by adopting the French method of a runoff ballot if, but only 
if, the primary ballot gives no candidate an absolute majority. Would it 
then still be constitutional for a State to legislate -- as I assume most 
or all have in fact legislated -- that if only one candidate nominates, 
s/he is elected unopposed even though Election Day may be months off?

I suppose one relevant difference is that a candidate with no opponents is 
assured of victory as long as voters can only reject him/her by voting for 
rival candidates instead. S/he could be defeated only if voters have the 
Eastern Bloc option of choosing "none of the above" and forcing a fresh 
poll. ... Whereas a candidate who faces one or more opponents, even one who 
polls more than 50% of the votes in a primary, still runs the risk that 
his/her opponent(s) could defeat him/her in a re-run contest on the Tuesday 
in November -- if, say, turnout rises or enough voters change their 
preferences.

(The French, by contrast, treat the runoff system as if it were a two-stage 
version of the Australian Alternative Vote/ Instant Runoff preferential 
voting system -- ie, assuming that voters have an unchanged order of 
preference throughout the two ballots. Given that the runoff follows very 
soon after the primary ballot, two weeks instead of several months, this is 
probably a more realistic assumption than it would be if applied to US 
primary and general elections.)

Tom Round

At 08:47 12/07/01 -0700, Rick Hasen wrote:

Here's a story from today's L.A. Times on the Ninth
Circuit's decision yesterday in Voting Integrity Project v.
Keisling, upholding Oregon's Vote-By-Mail statute against
charges that it violated federal law establishing a uniform
day for federal elections.
Rick


http://www.latimes.com/news/nationworld/nation/la-000057112jul12.story

[... snip ...]

In this instance, Kleinfeld wrote, that could be done because of a 1997 
Supreme Court decision, Foster vs. Love. In that case, the high court 
overturned a Louisiana statute that required all candidates for the U.S. 
Senate and the House of Representatives to run together in an open 
primary. If a candidate won a majority in the primary, that candidate was 
elected, meaning there was no vote in November.

The Supreme Court held that Louisiana had impermissibly "provided for 
federal elections before federal election day." However, in Oregon, no 
final selection is made until election day, the court noted. Consequently, 
the statute is in compliance with the federal election day statute, 
Kleinfeld wrote. Judges William A. Fletcher and Ruggero J. Aldisert joined 
in the decision in Voting Integrity Project vs. Keisling, No. 99-35337.

- --------------------------------------------------------------------------
Tom Round
BA (Hons), LL.B (UQ)
Research Officer & Associate Lecturer -- Key Centre for
     Ethics, Law, Justice and Governance (KCELJAG)
(incorporating the National Institute for Law, Ethics
     and Public Affairs [NILEPA])
Room 1.10, HUM[anities] Building, Nathan Campus
Griffith University, Queensland [Australia] 4111
Ph:         07 3875 3817
Fax:       07 3875 6634
E-mail:   T.Round@mailbox.gu.edu.au
Web:      http://www.gu.edu.au/centre/kceljag/
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