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Court rules on Green’s constitutional challenge to presidential election manipulation

• Court says plaintiff lacks standing, but the demand for Electoral College reform based on the Mal-Apportionment Penalty remains legally valid for a future civil action

• Democratizing the Electoral College web site: historical background, all court pleadings, Election 2008 graphics, video clips http://www.electors.us

The US District Court for the District Columbia has issued a ruling that, while dismissing the plaintiff for lack of standing, did not reject the validity of his arguments challenging the Electoral College based on the Mal-Apportionment Penalty clause of the 14th Amendment.

On July 28, 2008, plaintiff Asa Gordon of the DC Statehood Green Party filed his ‘Democratization of the Electoral College’ civil action against the manipulation of presidential elections inherent in the malapportionment of Electoral College votes.  See “Greens launch effort against Electoral College manipulation of presidential elections,” Green Party press release, August 5, 2008 (http://www.gp.org/press/pr-national.php?ID=85).

“This, for all intent and purposes, is a profound legal victory for reform of the electoral college to reflect the popular majority will of the American electorate in future presidential elections,” said Mr. Gordon.

The court issued its order (Case 1:08-cv-01 294-HHK) and memorandum opinion on March 26.  The ruling dismissed Mr. Gordon as the title plaintiff in the civil action for lack of standing.

But the ruling on Gordon v. Cheney, now Gordon v. Biden, provides a blueprint for future progressive civil actions to reform the Electoral College to reflect the popular vote in presidential elections.

“I am very pleased with the ruling, but unsatisfied to the extent that I plan to appeal what I deem to be the court’s error to deny me personal standing,” said Asa Gordon.  “The civil action was not only motivated by my personal standing as an injured voter, but the main objective was to determine the legal viability of the 14th Amendment’s Mal-Apportionment Penalty clause pleaded before the court that would democratize the Electoral College.  The court granted the dismissal order predicated on a memorandum opinion that did not reject the constitutional arguments I pleaded before the court.”

The District Court, citing case law precedents, ruled that “a pro se plaintiff… cannot adequately represent the interests of other class members.”  The court granted the dismissal motion, stating: “Because Gordon’s alleged injury is not ‘fairly traceable’ to the Vice President’s actions, which in fact are purely ministerial, but rather is attributable to the actions of third-party states and state officials, he fails to satisfy the causation element of standing.  Therefore, he is unable to prosecute this action.”

The court’s memorandum opinion observes that Mr. Gordon “filed this action on July 28, 2008, against Richard Cheney, then the Vice President of the United States (‘Vice President’), in his official capacity.  In anticipation of the then-upcoming presidential election and the role that the Vice-President would play in the election by presiding over and certifying the official vote count of the US Electoral College, Gordon sought by this action to prevent the Vice-President ‘from presiding over the tabulation of ‘unbound electoral states’ who by practice, unsupported by state or federal statute, traditionally award Presidential Electors on a ‘winner-take-all basis’.”  Mr. Gordon argued that the Vice President is the only government official who can consummate the miscounting of presidential electors.

Mr. Gordon defended his strategy and standing by noting that he represents a class of voters, having served as a presidential elector for the DC Statehood Green Party in recent elections.  Furthermore, he uniquely represents a related class of voters — those from the District of Columbia — who have no Representative or Senator in Congress who can raise an objection when the US Senate confirms a presidential election.  Thus his only recourse was to petition the federal court for a remedy.

“Civil actions like Asa Gordon’s represent the best hope for a legal remedy to engineered elections and the breakdown of our democracy.  Few people have shown the dedication and perseverence that Asa has.  I hope that his Electoral College challenge won’t end with the District Court’s recent decision,” said Cynthia McKinney, the Green Party’s 2008 candidate for President of the United States (http://www.gp.org/cynthia/index.php).

Asa Gordon noted that Rep. John Conyers (D-Mich.), commenting on issues raised in the civil suit on December 8, 2004, said, “This is the most amazing proposition that has ever been brought forward… and if it is accurate it could change the whole outcome of the voting process in the United States, and we will take that under consideration…  We, we eagerly embrace your suggestion.”

“The only question that remains is whether the NAACP, ACLU, American Constitution Society, and American Bar Association will now follow the Green Party’s lead on civil actions that will enforce the constitutional provision compelling the Electoral College to reflect the popular vote,” added Mr. Gordon.

Greens have consistently challenged the Electoral College’s validity as a reflection of the popular will in national elections.  The Green Party’s national platform endorses a constitutional amendment abolishing the Electoral College and providing for the direct election of the president by instant runoff voting.

3 Responses

  1. The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

    Every vote would be politically relevant and equal in presidential elections.

    The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes–that is, enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).

    The Constitution gives every state the power to allocate its electoral votes for president, as well as to change state law on how those votes are awarded.

    The bill is currently endorsed by 1,512 state legislators in 48 states.

    In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). The recent Washington Post, Kaiser Family Foundation, and Harvard University poll shows 72% support for direct nationwide election of the President. This national result is similar to recent polls in closely divided battleground states: Colorado– 68%, Iowa –75%, Michigan– 73%, Missouri– 70%, New Hampshire– 69%, Nevada– 72%, New Mexico– 76%, North Carolina– 74%, Ohio– 70%, Pennsylvania — 78%, Virginia — 74%, and Wisconsin — 71%; in smaller states (3 to 5 electoral votes): Delaware –75%, Maine — 71%, Nebraska — 74%, New Hampshire –69%, Nevada — 72%, New Mexico — 76%, Rhode Island — 74%, and Vermont — 75%; in Southern and border states: Arkansas –80%, Kentucky — 80%, Mississippi –77%, Missouri — 70%, North Carolina — 74%, and Virginia — 74%; and in other states polled: California — 70%, Connecticut — 73% , Massachusetts — 73%, New York — 79%, and Washington — 77%.

    The National Popular Vote bill has passed 25 state legislative chambers, including one house in Arkansas, Maine, Michigan, New Mexico, North Carolina, Oregon, and Washington, and both houses in California, Colorado, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, Rhode Island, and Vermont. The bill has been enacted by Hawaii, Illinois, New Jersey, and Maryland. These four states possess 50 electoral votes — 19% of the 270 necessary to bring the law into effect.

    See http://www.NationalPopularVote.com

  2. The normal way of changing the method of electing the President is not a federal constitutional amendment, but changes in state law. The U.S. Constitution gives “exclusive” and “plenary” control to the states over the appointment of presidential electors.

    Historically, virtually all of the previous major changes in the method of electing the President have come about by state legislative action. For example, the people had no vote for President in most states in the nation’s first election in 1789. However, nowadays, as a result of changes in the state laws governing the appointment of presidential electors, the people have the right to vote for presidential electors in 100% of the states.

    In 1789, only 3 states used the winner-take-all rule (awarding all of a state’s electoral vote to the candidate who gets the most votes in the state). However, as a result of changes in state laws, the winner-take-all rule is now currently used by 48 of the 50 states.

    In other words, neither of the two most important features of the current system of electing the President (namely, that the voters may vote and the winner-take-all rule) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation’s first presidential election.

    In 1789, it was necessary to own a substantial amount of property in order to vote; however, as a result of changes in state laws, there are now no property requirements for voting in any state .

    The normal process of effecting change in the method of electing the President is specified the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes. The abnormal process is to go outside the Constitution, and amend it.

    What the current U.S. Constitution says is “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .” The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

  3. Dear Mr. Gordon,

    I am the attorney who has been suing the Electoral College since 2000. I called you to talk about it. I sent you an amicus brief. Apparently you did not use it.

    I came across the ruling against you. I have a way that you could take the case to the next level. Did you ever hear of civil Gideon?

    Gary Michael Coutin


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