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The De Facto Capacity Requirement for Office

There are always unwritten, unspoken requirements.

The Constitution doesn’t mention a very real requirement that exists for holding office. That requirement is that the officeholder have legal capacity. The 25th Amendment does (in its third section) discuss this, but that was only ratified in 1967 (as a response to the assassination of President Kennedy in 1963).

The main utility of the 25th Amendment is in allowing to fill a vacancy in the office of Vice President. The added ability to deal with incapacity of the president is redundant—impeachment and removal already existed and fitted the need adequately, even if the idea of needing to impeach an incapacitated president seems a shade ugly.

But capacity is a real requirement, though only enforced politically (and thus rarely) in Congress as in the executive and the courts.

Like the Senate’s quorum rule, capacity is generally assumed to a fault, even when there is direct knowledge by those in government that an aged colleague may be failing. And in Congress the lack of capacity is generally overcome by the loyal and capable staffers who carry on with a governmental version of Weekend at Bernie’s.

But a short thought experiment will renounce any doubt that a constitutional capacity rule exists without ever being put to words. Let’s say a new pandemic occurred, or an attack with some novel nerve agent happened, and the result was mass-incapacity in Congress. Would the government honestly have to wait for the next general election to happen? With a bunch of demented or comatose legislators causing both chambers to sit idle, unable to even muster a quorum?

No. That dark day, it would take no time at all for everyone in the land to recognize that there is an obvious, unspoken rule that members must have capacity, and that a permanently incapacitated member forfeits their seat. A temporary loss of faculty might be survivable—litigation might occur if the matter ever came up, but not permanent incapacity.

In the case of a vacant mind, the laws of the state for filling the vacancy would be followed and the seat would be filled at the state’s described pace and in its chosen manner.

For those wondering, this all comes in light of the revelations regarding the fiction of Congressman Santos. While I do not know what will be done, I certainly think it is reasonable if a member is seen to have a complete lack of credibility to question their capacity to serve, and on that basis alone they should be expelled.

And the same should be true for a member too senile, as for a member otherwise lacking capacity permanently.

The case of temporary incapacity is harder to judge, and obviously it would depend on the circumstances, including how obvious it was that capacity could be recovered. The less likely it seemed, the better the case for removal and replacement. If such a member later regained their faculties, they could stand for election and, if the voters desired, be sent back to office at that later date.

There are likely some other de facto requirements, though it’s harder to judge if some are direct requirements or requirements of explicit requirements. For example, being a human is a likely requirement, but only humans are currently recognized as eligible to be citizens, and so it may be that the citizenship requirement would always be violated for non-humans seeking office.

Having a name may or may not fit that as well—the clerk has to call something on the role, and voters have to have a name to vote for. Being alive is certainly a requirement, or at least being animated enough to seem alive—to avoid becoming an estate. Officeholders have to be capable of at least some level of communication—enough to cast votes and to affirm their oath. That requirement may fit under capacity, however.

In any case, the capacity rule is something that should be given greater recognition.

Counting the 118th House of Representatives

Of 435 seats, the top three states populate over a quarter of the House.

Do we really know what’s in 118th House of Representatives? A panel of untrained scientists (i.e., me) have attempted to extract some key ingredients for analysis.

There are 222 members expected for Republicans, which you may think is mostly a southern party. In the 118th, it is exactly half-southern (using the Census regions). It is half-southern, a tenth north-eastern, a quarter mid-western, and about 16% western.

But even within the south, a plurality of it is concentrated in two states. Texas and Florida make up 40% of the southern conference. California accounts for 34% of the western bloc, while New York is half of the northeastern strain of the conference. The midwest stands out, in that no state really dominates. Ohio is closest, but it provides only 19% of that region’s Republican members.

Total members sent by region, for comparison:

  • Northeast sends 76 members (17%)
  • Midwest sends 91 members (21%)
  • South sends 164 members (38%)
  • West sends 104 members (24%)

But given the southern region includes more states, the per-state membership means are:

  • Northeast averages 8.4
  • Midwest averages 7.6
  • South averages 10.3 (not including the District of Columbia, which is allowed merely a delegate)
  • West averages 8.7

It’s interesting to realize that California Republicans are twice as many as Alabama Republicans in the House. Going the other way, in the 118th Texas (13) will send only one fewer Democrat than Illinois (14) (and New York will send 15).

California is the powerhouse for Democrats, sending 40 members, an almost four-to-one partisan ratio. Its the largest state, and its 52 members are almost 12% of the House.

On the other end, single-member states, the two parties split the six of them. Alaska, Delaware, and Vermont for Democrats; North Dakota, South Dakota, and Wyoming for Republicans. The two-member states are also single-party in membership. There are seven of them, and they favor the Democrats by one state. Idaho, Montana, and West Virginia are for Republicans; Hawaii, Maine, New Hampshire, and Rhode Island will seat Democrats. And the pair of three-member states are the same story again: Nebraska for Republicans, New Mexico for Democrats.

That’s already 15 states (30%) and 26 members (6%). That’s 14 seats for Democrats and 12 seats for Republicans.

It’s only when we get to four-member states that we see the first mixture in membership. While Arkansas, Iowa, and Utah all give their four seats to Republicans, Kansas and Mississippi each give one of them to Democrats, and Nevada gives one to Republicans. These 24 members and six states nearly match the previous batch in percent of members, though heavily tilted toward Republicans: 19 seats to five.

There are two five-member states, Connecticut and Oklahoma, and both are exclusive to one party (Democrats and Republicans, respectively) in the 118th. Kentucky and Louisiana both give five of their six to Republicans, while Oregon gives four of its six to Democrats.

Alabama and South Carolina both give six of their seven seats to Republicans. With 42 members, the five-member, six-member, and seven-member states, seven in all, are nearly 10% of the House, and they give Republicans 27 members but only 15 to the Democrats.

Colorado gives five of their eight seats to Democrats, while Maryland gives seven of theirs to the Democrats. Minnesota is the rare split state, giving four to each party. Missouri and Wisconsin each give six of their eight seats to Republicans. With 40 members, these five eight-member states again make a little under 10% of the House, but 24 of them are Republican seats.

Massachusetts has the distinction of being the largest single-party state, with all nine seats being Democratic. The other three nine-seaters are also imbalanced. Arizona gives six to Republicans, while Indiana and Tennessee give seven and eight, respectively. These four states with 36 seats account for 8% of the House and give 21 seats to Republicans.

After that come some larger states which lean toward Democrats. Washington gives eight of its ten to Democrats, and nine of New Jersey’s 12 seats are for Democrats. But Virginia and Michigan are both near-splits. Democrats get six of Virginia’s 11, and they get seven of Michigan’s 13 seats.

After you get past nine members, the next seat commonality is 14 for North Carolina and Georgia. Georgia leans more Republican, with nine of its seats for that conference, while North Carolina is the second and last split-state at seven apiece.

Together these six larger-but-not-huge states send 74 members, or 17% of the House, 42 of which are for Democrats.

Ohio yields two Republican seats for every Democratic one, with ten Republicans out of its 15 members. And the final commonality is at 17 seats for both Illinois and Pennsylvania. Illinois favors Democrats at 14 seats, while Pennsylvania is nearly split, with nine seats for Democrats.

Those three states provide 49 members to the House, about 11% of its capacity.

Finally, the other big three that aren’t California. New York is more purple than you might remember, giving only 15 of its 26 seats to Democrats. About 6% of the House hails from New York in the 118th.

But Florida is less purple than memory would have it. A full score of its 28 members are Republicans. Like New York, it fills about 6% of the House seats.

And Texas. The lone-star state, inexplicably, has the second most seats after California. Not so lone, there are 38 of them (close to 9% of the House), of which 25 are Republicans, practically two-to-one.

All told, there are only six mostly-balanced states (partisan percents in the 40s or 50s) out of 44 that could be balanced (i.e., six only have one seat in the House). They are Michigan, Minnesota, New York, North Carolina, Pennsylvania, and Virginia. Notably, they all have at least eight members (Minnesota being that one). Together they send 89 members, or 20% of the House, and they break slightly in favor of Democrats with 48 members (54% of their members).

Is that a coincidence? Are these all states of transition, on their way to more partisan slates? In some ways they are all in geographically transitional parts of the country, between the south and northeast, or the northeast and midwest.

On the other hand, the odds of smaller states to get in balance is lower, given fewer combinations making it within one or two seats of balance. Only 50% of configurations of a two-seater is balanced, and a three-seat state split 2-1 would still be rather unbalanced.

If the House were expanded significantly, we would likely see more states approach something closer to balance, and that would make the House healthier for all of us. But it would also require changes to rules and norms, and there’s been little sign of any real effort to increase the seat count.

As for partisan states, which I’ll define as having at least four seats and where two-thirds or more are for one party, there are 27 of them, out of 35 that have at least four members. (Colorado and Georgia are both partisan, but neither is quite two-thirds partisan in the 118th.) The partisan states send 293 members (67% of the House) and fill 157 Republican seats. Thus, about 54% of the partisan-state seats are Republican.

Aftermath of Alabama Politics in 2022

Another sad Alabama election.

Alabama Democrats

The new chair that came in after Doug Jones seemed to be ready to make some moves, but the slate of candidates for the primary was impressively weak. In most of the country, both parties find candidates for most races, even when they won’t win. Was this mere incompetence by the reformers?

Perhaps not. I don’t know if it’s true, but it seems plausible enough to think that the former leaders of the state Democratic party shooed candidates away from running this year, as part of their efforts to retake control. This is all guesswork, without any reporting on the inner workings of the party, but from the few public spats, the people who now hold the chair—the old guard—want to hold the chair even at the expense of the party. They know enough about how to do that, and don’t have any particular plans or ambitions for doing anything more than maintaining the limited power base.

It fits the pattern. On election-eve the current chair (Randy Kelley) issued a party memo saying people shouldn’t give credence to the Vice Chair (Tabitha Isner) for what amounts to her trying to help the candidates limp along when the main party has done no public work in 2022, none since their election in August. It fits the pattern of how fiercely they fought the bylaw changes under the reformers, including their lawsuit against the state party for daring to want to modernize.

And perhaps, too, the desire to keep the party weak, ineffective enough that there won’t be any major contention for leadership, is a sign of the old guard’s designs. The old guard likes their sliver of the state and their power over that sliver, and it won’t change, and it won’t grow.

But it’s probably not true. Incompetence, the difficulty of the sell to run a losing race, these are more likely culprits, even if the politics we learn from movies and books points to more active forces. It’s from that same dark narrative that one might conjure ideas that state Republicans secretly work with pawns among Democrats to keep the party on its knees.

Still, I find myself wanting to understand how there was zero capitalizing on Jones’ win to build a bigger state party, and as I’ve said, there’s no state media that seems to report on this in a way that really explains what the factions are and what they are (and aren’t) capable of.

The Alabama Libertarian Blitz.

The second piece of this autopsy is the Libertarians. They failed to get 20% on any statewide race, so they are back to square one for ballot access. The closest they came, per the Secretary of State website (Alabama Secretary of State: Alabama Votes: 2022 General Election, unofficial results) was 15.6% for Ruth Page–Nelson in the lieutenant-gubernatorial race.

This piece overlaps the first piece. There were enough people who voted for Democrats that they could have put the Libertarians over the threshold in at least one race. Enough of those voters surely plugged the straight ticket bubble and skipped anything else except perhaps the amendments. The Democrats could have called on their voters to help make the mark, but did not. If the Libertarians maintained ballot access, and if they improved their operation, it would provide a contrast to the Democrats that might threaten the old guard.

On the other hand, there’s plenty of reason to be skeptical of Libertarians, particularly for Black voters who are the bulk of Democrats in Alabama. Libertarians promote themselves as strict constitutionalists, which isn’t something particularly palatable to those who know the Constitution’s history—enshrining slavery.

If the Libertarians did anything, it was to raise awareness among Alabama Democrats at how badly the state party is doing, when the Libertarians outnumbered them on many ballots.

Turnout of ≈39%?

The third piece is turnout. The media reports results as a percentage of ballots cast for a particular race. They don’t provide the companion to that, which is to compare that to the electorate. More people didn’t vote than did. Kay Ivey won reelection with about 26% of the registered voters of Alabama. The Democratic candidate, Yolanda Flowers, got another 11%. Add the Libertarian and write-ins, that’s another 1.5%. And all of those sum to 38.5%, which was the turnout number. Which means if Rabbi Jesus had run, and assuming everyone else showed up and voted for him, he would have won by 23 points.

One of the reasons turnout was so low was the weak slate from state Democrats, but it’s a testament to the sorry state of democracy in Alabama, especially for the fact that our reworked constitution, the Alabama Constitution of 2022, was therefore ratified by a measly 24% of the state’s electors (though 76.5% of votes cast on the ratification measure).

The State Constitution.

Which brings us to the constitution and the amendments. Everything passed. As expected.

The recompiled constitution, lacking the racist language of before, and having been reorganized, still saw 23.5% vote against it. The total votes lagged the governor’s race by at least 250 000 votes, so a lot of people who took up the pen and the ballot didn’t bother to mark it at all.

The statewide amendment with the largest number (and largest percentage) of votes against was Amendment 6, because it had the word tax in it. It basically cut a bit of red tape around a property tax used for public works, letting the revenue be used directly rather than requiring it to be used to pay debt. In theory this means some work can be done with minimal debt and less administrative baggage, lowering the cost. In practice, who the heck knows?

The Good News.

The election is over with. We can sleep in our beds tonight assured that no useful changes in leadership occurred. The Republicans will continue to try to pass and also to block gaming laws, including a lottery, even as millions of dollars flow into neighboring states for those purposes. The media (both state and national) will continue to treat Alabama politics as a permanency of one-party rule as it always was. Nobody will campaign on fixing our prison system, on bold new plans for public works or development.

And in 2026, the Republicans will have to run someone else for governor.