Who Voted for That Guy?
Charles W. Boustany, Jr. has been representing Louisiana’s 7th district in Congress since 2004. In 2010, he was reelected to a fourth term. The trouble is, nobody voted for him.
That’s because a curious piece of Louisiana election law states that any candidate running unopposed for any public office is automatically declared elected––without ever having to appear on the ballot.[i] Louisiana isn’t the only state to have such a law; Arkansas, Florida, Mississippi, Oklahoma, and South Dakota have similar statutes.[ii] The phenomenon of unopposed elections is rather rare, occurring in 2010 in only ten House races[iii] and––more surprisingly––in the South Dakota Senate race. And only three of these members of Congress were not listed on the ballot in that election.[iv] Yet these unusual legal provisions beg the question: are six states unconstitutionally infringing on their citizens’ right to vote?
As I mentioned in a previous post, the U.S. Supreme Court has been on a sort of extended voting rights kick since the early 1960s. The Court has determined that, to an incredibly exacting standard, states must conform to the “one person, one vote” principle. More fundamentally, states cannot deny someone the right to vote based on race,[v] sex,[vi] age,[vii] ability to pay,[viii] or ability to pass a literacy test.[ix] Supported by the Privileges and Immunities and Equal Protection Clauses of the Fourteenth Amendment, these regulations constitute a right to vote. This right still exists even if the voters only have one official choice. Our government is based on having the people choose their own representatives; keeping unopposed candidates from being on the ballot prevents voters from being able to affirm their choice for the office, and it denies candidates the democratic legitimacy of having been chosen by the voters rather than by some obscure statute.
These laws are also constitutionally problematic because they eliminate the option of writing in an alternative candidate of one’s choice. In the states with unopposed-candidate laws, the office for which that person is running does not show up on the ballot at all. Write-ins are thereby made impossible. As Akhil Amar pointed out in a recent article in Slate magazine, write-in votes have a long, distinguished history in American electoral history; in fact, there was no such thing as a printed ballot in the late 18th century, meaning that all votes were write-ins at the time the Constitution was written. Amar concludes: “[I]t would be hard for a state to constitutionally defend any blanket no-write-in rule that applied to any ordinary U.S. House or U.S. Senate race, or any election for state or local office.”[x] If Amar is right (and I think he is), then electing unopposed candidates without allowing write-ins would be unconstitutional.
This is not merely a theoretical concern. Lisa Murkowski was reelected to the Senate in 2010 only because she was able to run a successful campaign as a write-in candidate after losing the Republican nomination earlier in the year. Granted, she was running against two candidates in the general election rather than one, so she would still have been able to run even in states with unopposed-candidate laws. But suppose that a candidate was running unopposed for, say, the House of Representatives, and ran into a crippling ethics scandal (not unheard of for members of Congress) after the filing deadline for general election candidates. In states with regular election laws, that candidate’s party could encourage people to vote for someone new as a write-in candidate; in the six states with unopposed-candidate statutes, the voters would either have to be represented by somebody with a major credibility handicap or would have to pressure that member to resign, leading to a special election that would be almost guaranteed to have lower voter turnout and therefore more likely be captured by special interests.
These problems, both theoretical and practical, suggest one thing: nobody should be able to hold elected office without having actually been elected first, based on the choice of the voters rather than on the choice of other candidates not to run.
[ii] Arkansas Code §7-5-207, division (a)(2); Florida Code, Title IX, §101.151, subsection 7; Mississippi Code §23-15-359, subsection 9; Oklahoma Code §26-6-102; South Dakota Codified Laws §12-16-1.1.
[iv] These were the three House candidates from Florida, Louisiana, and Oklahoma. Despite South Dakota’s law allowing for election without a vote, Senator John Thune still appeared on the ballot.
[v] U.S. Constitution, Amendment XV.
[vi] Ibid., Amendment XIX.
[vii] Ibid., Amendment XXVI.
[viii] Ibid., Amendment XXIV; Harper v. Virginia Board of Elections, 383 U.S. 663 (1966).
[ix] Voting Rights Act of 1965, §3(e)(1), upheld by Katzenbach v. Morgan, 384 U.S. 641 (1966) and Oregon v. Mitchell, 400 U.S. 112 (1970).