© 2012 jbjd
I have been saying for years now; in those states which allow on the ballot only the names of candidates who are qualified for the job; party officials certified to state election officials that Barack Obama’s name should be placed on the ballot notwithstanding no documentary evidence in the public record had established those qualifications.
I wrote “Out of the Mouths of Babes” in January 2010; it has remained one of the most popular posts on the “jbjd” blog. It describes my exchange with 9th graders in a U.S. History I class, during a lecture in which I detailed the interplay between the Constitutional requirements for President found in Article II, section 1; and real life, as played out with respect to the 2008 general election. I found their insights, untainted either by political correctness or experience; were ‘right on time’; and not just because their conclusions matched mine.
UPDATED 04.17.10: In the cite linked to President Washington’s papers (below), the date of his swearing in is correctly given as April 1789. I incorrectly wrote he was sworn in, in March. (Here is another historical reference to that event. http://memory.loc.gov/ammem/pihtml/pinotable.html )
UPDATED 01.06.10: In a parenthetical comment below, I mistakenly said the first selection of Presidential Electors occurred in November 1788. However, the states first Appointed Electors in January 1789; and these Electors voted for George Washington for President in February. I correctly stated, Mr. Washington was inaugurated in March. http://gwpapers.virginia.edu/documents/presidential/electoral.html
Students attending this inner city high school not only are racially and ethnically diverse but also hail from several other native countries. For the most part, the students supported the Presidential candidacy of Barack Obama. Some of them even met the future Commander in Chief when he came to town during the primary campaign, their encounters captured forever in photographs proudly displayed in the lobby of the building. Pictures of Michelle appear there, too, under a banner proclaiming her, “Our Queen.”
At the last minute, I was asked to teach American History to 3 (three) classes of 9th graders deep in this heart of Obama territory.
Freshmen are a separate breed. Cocky and in your face, they virtually dare you to successfully re-direct their terrific energy to academic pursuit. But nothing equals the thrill of watching them learn, once you get their attention.
Here is how I got their attention.
I wrote my name on the board, billing myself as a “Guest Lecturer.” This was the provocative title for my presentation: “You Will Never Vote for President of the United States.”
The reaction from my students was boisterous and anticipated. ‘Oh yeah? I’m gonna vote for President as soon as I turn 18.’ And, ‘I thought you were allowed to vote for President as long as you were a citizen!’ I calmed the crowd by repeating the history lesson I was sure they had already been taught but forgot: the President of the United States is not elected directly by the people but by the Electors. In the general election on the next Tuesday after the first Monday in November, voters only select these Electors; but Appointed Electors don’t vote for President until the 15th of December, the dates set for these events in the Constitution.
For approximately the next 45 minutes, I walked my students through the election process spelled out by the Drafters of our Constitution and re-printed in their history books, barely recognizable as it was carried out in the 2008 general election.
‘What are the 3 Constitutional qualifications to be POTUS?’ The students proudly listed all three without prompting. 1) You have to be 35 years old. 2) You have to live in the United States for 14 years. 3) You have to be a Natural Born Citizen. I wrote these on the board. (I went into a side discussion about that 14-year requirement – I have discussed this issue previously on this blog, as well as other blogs – reasoning, the Drafters wanted to ensure that as much as possible, the President, also fulfilling the role of Commander in Chief, was completely intertwined with being American, attached to both her ideals and to the country. They envisioned such loyalty could only derive from being immersed for a fixed time in the American experience. So, why 14 years? Well, the first Continental Congress convened in 1774, establishing the first time (representatives from) the original 13 (thirteen) colonies came together to ponder mutual concerns viz a viz the British, thus evidencing their psychological mindset as a unified ‘nation.’ (One year later, the “shot heard round the world” was fired between British troops and American rebels at Lexington Green, MA, in 1775; and the Declaration of Independence was written in Philadelphia, PA in 1776.) The drafting of the Constitution occurred in 1787 and, allowing for ratification by the requisite 9 (nine) states, the Drafters anticipated Electors would, for the first time, vote for President in November 1788. (The swearing-in would take place in March of 1789.) Thus, 14 (fourteen) years had passed between the time the mindset of ‘being American’ first coalesced, and election of the first President (1788 minus 1774).)
I charted the modern process of electing the President through the intervention of political parties, stressing the fact political parties are not mentioned in the Constitution. I described the mission of the party is to get the name of the person they want fronting for the party or, club, printed onto state general election ballots, an indispensible step to getting the public to forget, they are not voting for the candidate but for the Electors in the general election. Because only the name of the nominee of the political party appears on the ballot next to the party designation. This means, casting a vote for the ‘person’ whose name appears on the ballot next to the D or the R is more correctly characterized as voting for the Electors for that person.
So, who are these Electors we vote for who go on to elect our President? Well, generally speaking, they are chosen by the political party based on their demonstrated loyalty to the party, as evidenced in terms of hours spent supporting party activities such as hosting fundraisers for party backed candidates; or providing financial support to the party. The names of these Elector candidates are then submitted to state election officials by each political party. The number of Electors each party gets to submit is based on the number of Congressional districts in that state, plus 2 more for the number of US Senators. And in states like CA, in the 2008 election, this meant, 55 names. Obviously, printing the names on the ballot all of the candidates for Presidential Elector put forward by the parties is prohibitive. So, in each state, only the name of the party nominee is printed on the ballot, and not the names of the party Electors. (I pointed out; each state enacts the election laws prescribing what names may be printed on its ballots.)
How is the party’s Presidential nominee chosen? Usually, s/he is selected according to the results of party contests called primaries and caucuses held in each state to elect delegates who will vote at the party convention; and, finally, the party convention. Summing up the results for the D candidates for POTUS in the 2008 Presidential preference primaries and caucuses, I reported, on June 3, 2008 when all of the primaries and caucuses were over, Senator Hillary Clinton and Senator Barack Obama had failed to reach the requisite number of pledged delegates set by the Democratic National Committee Services Corporation – DNC for short – to guarantee the nomination for their club – of course I inform them, she won more popular votes AND pledged delegates as the result of primary and caucus votes cast directly for her – so the rules called for the difference to be made up at the floor roll call at the Convention held in Denver, CO, in August 2008, by votes cast by party ‘elders’ called Superdelegates, who could vote for anyone they wanted. But for some reason, the Corporation backed Barack Obama well in advance of the Convention, even foregoing the traditional floor vote at the Convention in order to make his nomination a fait accompli. I repeated several times, the DNC Services Corporation is not a government agency but more like a private club, which means, they can make or break their own rules with impunity.
Once the DNC selected Barack Obama as their candidate for President, they had to get state election officials to print his name next to the D on the general election ballot. The DNC (and, in some states, the Chair of the state D party) submitted these Certifications of Nomination to election officials in each state swearing Barack Obama was the duly nominated DNC candidate for President and was Constitutionally qualified for the job.
I pointed out that, the Constitution says Electors will be appointed by the Governors of the states. I reconciled how electing Electors through a popular vote in the general election ends up in an Appointment. That is, the final vote tallies in the general election (for Electors for the candidate whose name appears on the ballot) are Certified by the Governors, who send Certificates of Ascertainment listing the names of the Electors (previously submitted to state election officials by the political parties) and the number of votes cast for them, as well as for the losing candidates for Elector, to the National Archivist, effectively making that Certification of popular votes cast for Electors in the general election, the Constitutional act of Appointment.
More D than R Electors were elected and, therefore, Appointed in the November 2008 general election. And all of the D Electors who voted in December 2008 cast their votes for Barack Obama, the nominee for President of the D party. But this was hardly surprising. Because the only way they got to be Electors for the party in the first place was by promising the party, if Appointed, they would cast their votes for the party nominee. However, I emphasized that nothing in the Constitution requires Electors to vote for the nominee of the political party, which only made sense since, as I said, the Drafters never mentioned political parties in the Constitution.
Congress ratified the vote of the Electors in January and the Chief Justice of the Supreme Court swore in Barack Obama as President of the United States days after that. All prescribed precisely by the Constitution.
At this point, the students think the lecture is done. But I am just getting to the best part.
‘Wait a minute,’ I challenged, looking back at the board. ‘At the beginning of this lecture, we listed these 3 qualifications for President spelled out in the Constitution, right? You have to be 35 years of age; you have to live in the U.S. for 14 years; and you have to be a NBC.’ Yes. ‘Well, throughout this whole election process we just described, when did we mention that anyone vetted the candidates for President to ensure they satisfied this Constitutional eligibility for the job?’ Silence.
Now, I taught the class, no provision found in any law, state or federal; or in the Constitution requires any state official to determine whether the candidate for President is Constitutionally eligible for the job. None. The Constitution says, the Electors have to elect the President but remains silent as to vetting for Constitutional qualifications. The Constitution requires Congress to ratify the Electors’ vote for President but says nothing about verifying beforehand that the the person they elect is Constitutionally qualified for the job. The Chief Justice of the Supreme Court swears the President into office, under no Constitutional obligation to determine beforehand whether s/he was qualified for office.
And that led me to the states that require in order to get the candidate’s name printed on the ballot; s/he must be eligible for the job.
I described that some states enacted election laws that only allow the names of eligible candidates to be printed on state election ballots. And some of these states, like HI and SC, enacted laws saying the party must swear, in writing, their nominee for President meets all Constitutional qualifications for the job. (I point out; requiring this statement from the party is kind of superfluous because, according to the operating rules of the DNC Services Corporation, the Presidential nominee of the party must be Constitutionally qualified for the job. Then again, given their exhibited propensity to break their own rules…) I also reiterated, while the law says the candidate has to be eligible for the job to appear on the ballot, no corresponding law requires any government official to check.
The students were aware that Representative Nancy Pelosi (D-California) was Speaker of the U.S. House of Representatives; several knew the position of Speaker is 3rd in line of Presidential succession. They were unaware that in 2008, the DNC Services Corporation gave Ms. Pelosi the civilian job of Chair of the 2008 DNC Convention. Acting in the non-governmental role of Chair, her chief responsibility was to sign those official DNC Certifications of Nomination swearing Barack Obama was Constitutionally qualified for the job of President of the United States, and send these sworn Certifications to state election officials to print the name of Barack Obama next to the D on their general election ballots.
I reported that questions had arisen during the primary campaign as to whether Barack Obama was a Natural Born Citizen. Students were aware of the controversy. I informed them that several people had even concluded, the documentation available in the public record failed to establish that he is a U.S Citizen, let alone that he was Natural Born. Yet, Ms. Pelosi signed those Certifications of Nomination and sent these to state election officials to get them to print his name on the general election ballot.
‘Some of us wondered; given this controversy about the circumstances of Mr. Obama’s birth, on what documentary basis did Ms. Pelosi ascertain he was a Natural Born Citizen before swearing he was Constitutionally eligible for the job? So, we wrote to Ms. Pelosi and asked her. I even arranged to have one of these letters hand-delivered to her office in Washington. Know what she said?’ Every pair of eyes was now on me. ‘Actually, she didn’t say anything. She ignored us.’ A knowing sound of ‘ooooo’ filled the room. ‘What do you think that means?’ The students smiled. ‘That means, she’s busted; she didn’t check whether he is a Natural Born Citizen before she swore he was.’
I shrugged my shoulders. ’Could be. But people wanted to know for sure. So, now they wrote to Alice Germond, the Secretary to the DNC Services Corporation, who had co-signed those Certifications. Again, they asked on what documentary basis she had determined Barack Obama is a Natural Born Citizen before sending those Certifications of Nomination swearing he was, to state election officials to get his name printed on the ballot. But this time they asserted the right to view whatever documentation the party used, under what’s called the Freedom of Information Act (“FOIA”), the federal law that gives the public the right to see the documents our government has on file.’
‘Did she answer the question?’ ‘No; but she didn’t ignore the voters, either. Ms. Germond forwarded the letters addressed to her, to the General Counsel or, lawyer for the DNC Services Corporation, Joseph Sandler. And he did write back.’ The kids were at the edge of their seats. ‘What did he say!’ ‘Well, he explained that the DNC is not a government agency but rather a private club and, as such, is not subject to state or federal document disclosure laws. He advised people to direct their questions about the qualifications of candidates whose names appear on the ballot, to their state election officials. And he still didn’t answer the question.’ Now, a loud gasp rose up around the room. ‘What do you think that means?’ Without missing a beat, they blurted out, ‘That means they did check whether Barack Obama is a Natural Born Citizen; and he’s not!’
This illustrates another reason I love teaching 9th graders: they are not yet sophisticated enough to abandon their common sense.
My mind is a terrible thing to waste.