Friday, October 07, 2005

The Wall Street Journal today had an interesting story on Harriet Miers, Dick Cheney, and the 12th Amendment. I've read both the print version, while cooling my heels at the title company before a pretty good meeting, and the online version hat tip Hasen.
It's getting coverage today because of what it might say about Miers' views on not so strict construction, but I'm interested in it on the merits.

The 12th amendment is fairly obscure. I'm an election law lawyer and didn't know it off the top of my head. It says an elector can't vote for two people from the same state. The point is to avoid a favorite son deadlock in the electoral college. Often these suits about residency are baseless and brought by sore losers, but this one, I think, might have some merit. It's an unreported decision (odd in itself) that got lost in the shuffle of Bush v Gore. It claims, with some basis in fact, that Cheney really lived in Texas at the time of the 2000 election, and so did Bush, so Texas can't cast it votes for Cheney - so Lieberman should have won, or maybe the consequence would have been to throw it to the house. Cheney is rich and has houses several places. He has strong ties to Wyoming, which is where he claimed to be living at the time. But as president of Halliburton he'd been living and working in Texas for 5 years, and there's a not-bad argument that his re-registering in Wyoming was a sham. His wife was still registered in Texas. Dunno if she voted there.

During Bush-Gore, I'd seen a Bush-Lieberman result as a possible and fun outcome, if not for these reasons. The strongest reason to continue to question the legitimary of the Bush election would be the disenfranchised non-felons in Florida. There are some who continue to see Bush as a usurper, and thus his choices for the court as unauthorized. (Would Bush, if defeated in the court in 2000, come back to win in 2004? We don't know.)

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