Election of Pawlenty Unconstitutional?

The 2006 election of Tim Pawlenty to be Governor of Minnesota was unconstitutional. Pawlenty won the election with only 46.7% of the votes cast. Article IV, Section 4 of the U.S. Constitution guarantees to each state a Republican Form of Government. That Minnesota allows a candidate to be inaugurated who does not meet the definition of small r republican is a violation of our rights under the Constitution.

Pawlenty was first elected in 2002. Most voters voted against his re-election in 2006. A republican form of government reflects the will of the people. The people’s will was thwarted when Pawlenty stayed in office.

A republic is a government where the elected officials are representative of the people. In an election of one person, such as a governor, that person must be supported by a majority–otherwise “representative” has no meaning. That he is representative of some people is insufficient. Every candidate is representative of somebody, if only himself. You could flip coins and determine a candidate who is representative of some people. The proper way to achieve representativeness in such an election is to demand a majority. As is done in most countries in the world (and many states and cities in the U.S.), a runoff election should have been held between the top candidates to determine which was ultimately supported by the majority of voters. As an alternative, an “instant runoff” could have been conducted, as is done in Ireland and Australia, where voters rank their choices in anticipation of the failure of the leading candidate to achieve a majority. If that occurs, the lower candidates are eliminated. The voter has already indicated who would be that voter’s choice in a runoff–thus obviating the need for that voter to return later to express his preference from the remaining contenders.

Some experts claim that our United State Supreme Court has not supported such a challenge in the past. The Court has often spurned claimants asserting the Republican Form of Government clause, on the grounds that these are political rather than judicial issues. But never say never. In New York vs the United States, decided in 1992, Justice O’Connor stated that the court might very well consider a claim under Article IV, Section 4. And in Bush vs. Gore (2000), the Supreme Court took the unprecedented step of applying the Equal Protection clause to the manner in which a state counted its votes. The Bush v. Gore decision opens the door to other claims of inequitable treatment in the way that states apply their election law.

Now I confess. I have been insincere. I don’t think the Supreme Court has any business telling the State of Minnesota how to conduct its elections. I agree with Justices Thomas and Scalia, as they concurred in the case of Holder vs. Hall (1994)*, that states have been and should continue to be given wide berth in how they choose their leaders. Although our current plurality system is inferior to and more constitutionally-suspect than the Instant Runoff process that I described earlier, it passes a very lenient smell test. So until we get Instant Runoff for our statewide elections, we’ll choose our leaders as we have--hold our noses and vote.

* "We would be mighty Platonic guardians indeed if Congress had granted us the authority to determine the best form of local government for every county, city, village, and town in America. But under our constitutional system, this Court is not a centralized politburo appointed for life to dictate to the provinces the "correct" theories of democratic representation, the "best" electoral systems for securing truly "representative" government, the "fairest" proportions of minority political influence, or, as respondents would have us hold today, the "proper" sizes for local governing bodies. We should be cautious in interpreting any Act of Congress to grant us power to make such determinations." For full concurrence