Nick R. Martin at TPM has an interesting piece that details the interchange between the Arizona secretary of state (who is amusingly described as “birth curious” in the piece) and officials in Hawaii over the question of President Obama’s birth certificate: Emails Show How Hawaii Stiffed Arizona Secretary Of State’s Birther Investigation:
On Monday, TPM filed a public records request for the correspondence between the Hawaii government and the Arizona Secretary of State’s Office. The results show Bennett and his staff grew ever more impatient with the slow pace of Hawaii’s response before the secretary finally took to a local conservative radio talk show on Thursday to voice his concerns.
The e-mail chain is interesting, and if anything underscore the frustration that Hawaii officials have with whole birther story and the numerous requests that have been filed for Obama’s birth certificate.
One particular exchange caught my attention (excerpts and emphases below):
From: Bennett, Ken
Sent: Thursday, May 17, 2012 3:12 PM
To: Jill T. Nagamine; Drake, Jim
Subject: RE: Request from the Arizona Secretary of State’s OfficeDear Ms. Nagamine:
As the chief elections officer for the State of Arizona and pursuant to Arizona Revised Statutes, sections 16-212, 16-301, 16-502, 16-507 and others, my office is tasked with quadrennially compiling a list of candidates for the Office of the President of the United States. This list is then officially “certified” by my office and transmitted to the fifteen counties for creation of the official ballots. The list is generated in the “ordinary course” of my office’s activities (every four years) and it is certainly made for a “legitimate government purpose” (elections).
Based on the above representation, I believe that my office has strictly and expressly complied with all of the elements found in Hawaii Revised Statutes, section 338-18(g).
[…]
From: Jill T. Nagamine
Sent: Saturday, May 19, 2012 3:38 PM
To: Bennett, Ken
Subject: RE: Request from the Arizona Secretary of State’s OfficeDear Mr. Bennett:
I am in receipt of your email dated May 17, 2012.
[…]
I asked you for legal authority that establishes your right to obtain verification, and your email of May 17, 2012 provides me with references to Arizona Revised Statutes 16-212, 16-301, 16-502, 16-507, and unnamed others. These statutes seem to deal with election of presidential electors, nomination of candidates for printing on official ballot of general or special election, form and contents of ballot, and presentation of presidential candidates on ballot, but none, as far as I can tell, establish the authority of the Secretary of State to maintain and update official lists of persons in the ordinary course of his activities. I researched other sections of the Arizona Revised Statutes and was unable to find the necessary authority.
I have reviewed the statutes in question, and have to agree with Ms. Nagamine’s assessment You can look for yourself here: click).
The most relevant statute is 16-212:
16-212. Election of presidential electors
On the first Tuesday after the first Monday in November, 1956, and quadrennially thereafter, there shall be elected a number of presidential electors equal to the number of United States senators and representatives in Congress from this state.
Note what we should all know: the voters in the state of Arizona elect electors not the president. Really, the entire line of reasoning being proffered by the Arizona secretary of state demonstrate a conflation of electing electors and electing the president when they are, in fact, distinct.
The fundamental issue is this: constitutionally the citizens of the United States do not vote for the president of the United States. They vote for the electors who, in turn, vote for the president. Even though most state ballots only list the candidates the voter is not voting for the candidate, but for the slate of electors (indeed, in AZ the electors are listed on the ballot—see here and statute 16-502 ). As such, the states as political units in the process do not oversee the actual candidates for president. This means that the states themselves may have no constitutional standing in requiring any kind of proof of eligibility of candidates (and hence no grounds for indulging, constitutionally at least, in birth fantasies). I will allow that I am unaware of the statutes in all 50 states on this topic, although again: the constitution does not appear to provide any authority over this topic.
It is also worth noting that for presidential nomination primaries, voters are actually voting to determine which delegates are to go to the party’s national convention, not for the candidates themselves. So even in terms of the nomination of candidates (16-301), there really is no reason why the state would have jurisdiction over the issue of the qualifications of the party’ candidates for nomination or for the presidency itself.
This helps illustrate one of the bizarre facts about the electoral college: the voters of the United States have no direct constitutional or legal linkage to the president whom we act like we elect.
I do understand that as a practical matter the convention delegates act as messengers for the voters in the states (more or less) and that electors have come to act, as a result of tradition for the most part, as messengers as well. As such to vote for the electors is to vote, at least via proxy, for the candidate, however there is no direct connection between voter and POTUS.
And we like this system why, again?
Regardless, I find this to be somewhat ironic in the birther case: they are arguing as if they have some profound and special understanding of the constitution and yet they don’t recognize that constitutionally the states have no control over the candidates for the office.
(This is a good time to remind everyone that the electoral college does not work as the Framers intended and really, after Washington’s elections, never did: Looking to the Design of the Electoral College. Why we continue to venerate it is beyond me).
