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The Legislature ThereofCalifornia voters can't change the 2008 election rules on their own.

By Doug KendallPosted Thursday, Sept. 13, 2007, at 7:34 AM ET

Republican presidential candidates are crossing the country promising voters that they'll pick judges who will be "strict constructionists" of the U.S. Constitution. Meanwhile, Republican activists in California are trying to flout the Constitution in order to change the rules for the 2008 election. Last week, their bid to change the state's method for meting out its electoral votes was endorsed by the state GOP and cleared by the California secretary of state, moving it closer to a place on the June 2008 ballot.

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It's easy to see the allure for Republicans of this voter referendum, which has a predictably misleading name, the Presidential Election Reform Act. The initiative aims to replace the state's current "winner-take-all" allocation of its trove of 55 Electoral College votes. Instead of going to a single candidate, the state's electoral votes would be divvied up among multiple ones, based on the popular vote outcomes in California's 53 congressional districts. As several commentators have pointed out, including Jamin Raskin in Slate, this is all about political gamesmanship. (Bush won 22 of California's congressional districts in 2004, and assuming that voting trend holds, the proposed referendum would shift approximately 20 electoral votes into the Republican column. That's enough to determine the outcome of a close election.)

Related in Slate

In 2006, John Dickerson reported from the ultimate convention for the GOP faithful, the Southern Republican Leadership Conference. Timothy Noah argued for dissolving the Electoral College in 2001 and in 2004. In 2000, Emily Yoffe explained why the system is even still around.

But there's a big problem with this referendum that has so far gone unnoticed: It's patently unconstitutional. The U.S. Constitution prohibits a ballot measure that would trump a state legislature's chosen method of appointing electors. In Article II, Section 1, the Constitution declares that electors shall be appointed by states "in such manner as the Legislature thereof may direct." That's legislature. California's could scrap its current winner-take-all approach and adopt a district-by-district system for allocating electors (as only Maine and Nebraska currently do). But the voters—whom the initiative supporters have turned to because they don't have the support of the Democratic-controlled legislature—cannot do this on their own.

Some of the Constitution's provisions are famously elusive. But "the Legislature thereof" is not one of them. In the 1920 case Hawke v. Smith, the Supreme Court ruled that a ballot initiative could not be used to undo a state legislature's decision to ratify the Constitution's 18^th Amendment. The court found that the term legislatures is "plain, and admits no doubt in its interpretation." Justice William Day wrote, "The framers of the Constitution clearly understood and carefully used the terms in which that instrument referred to the action of the legislatures of the states. When they intended that direct action by the people be had they were no less accurate in the use of apt phraseology to carry out such purpose."

The Supreme Court had previously been clear about the power the Constitution delegates to state legislatures in choosing electors. In 1892, in McPherson v. Blacker, the court held that Article II grants "plenary power to the state legislatures in the matter of the appointment of electors." Quoting a 1874 Senate report, the majority stated: "The appointment of these electors is thus absolutely and wholly with the legislatures of the several states."

While Hawke and McPherson may seem like ancient history, California Republicans will surely recall the last time these issues came up: a little dispute known as Bush v. Gore. In the case that ended the battle over the outcome of the 2000 presidential election, the majority reaffirmed McPherson, stressing that state legislatures have plenary power to choose the manner of appointment of federal electors. In a concurring opinion, Chief Justice William Rehnquist, joined by Justices Clarence Thomas and Antonin Scalia, opined that the power the Constitution gives to state legislatures is so absolute that it divested the Florida Supreme Court of most of its power to review the Florida legislature's handiwork.

Rehnquist's reading is an aggressive one. One need not accept it, however, to see the flat-out unconstitutionality of the Presidential Election Reform Act. Indeed, in the course of a 150-page law journal article that is relentlessly critical of the majority and concurring opinions in Bush v. Gore, Harvard Law professor Laurence Tribe, one of Gore's lead lawyers, writes that "at least some state constitutional assignments of responsibility away from the state legislature—specifying that the manner of choosing presidential electors was to be fixed by the state's highest court, say, or by the state's chief executive, or by the people in a statewide plebiscite—obviously would not be consistent with Article II." (My italics.)

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Doug Kendall is president of the Constitutional Accountability Center, a think tank, law firm, and action center dedicated to the progressive promise of the Constitution's text and history.

COMMENTS

Remarks from the Fray:

Both parties want to win. Democrats want to keep California in the D column, at the expense of disenfranchising Republican districts. Republicans want to split the votes to ensure victory. Both sides are solidly pursuing their own best interests, but who is right?

The Republicans of course. Splitting the votes for the largest state is completely fair, and in fact is the same system used by two other states. A logical comeback for the Democrats is to introduce a law requiring a split vote in every state (what the Republicans can do for California, the Democrats can certainly do for Texas and Florida). Their actions would have the added benefit of making California, one of the largest and most economically powerful states in the union, relevant again. Heck, Republicans might actually campaign there.

--Big D

(To reply, click here.)

This was a great analysis. Unfortunately, it won't matter. Many Californians could not care less about whether a proposition that appeals to them - including this one -- is constitutional.

More than two decades ago, in Plyler vs. Doe, the U.S. Supreme Court struck down as unconstitutional a Texas law that would have denied the children of illegal immigrants access to education.

But that didn't stop right-wingers in California, years later, from coming up with Proposition 187, which would have done the same thing. That ballot initiative had other delightful provisions, such as preventing immigrant women from obtaining prenatal care, and preventing their children -- born in this country and thus citizens -- from receiving vaccinations (this from the "pro-life" party).

Prop 187 was patently unconstitutional. Yet it passed overwhelmingly. A legal challenge inevitably was mounted, and after a number of years and millions and millions of taxpayer dollars spent, lo and behold, it was gutted based on constitutional concerns.

I have lived in California, and I love it here. But most of the really horrific laws that have passed here in my lifetime have been the result of initiatives. Laws should be made by lawmakers, not by laypeople who often make their decisions based on their instincts, "voter guides," or 30-second TV spots.

I wouldn't trust an amateur to perform surgery on me. I sure as hell don't want a mob of amateurs making laws that affect my life.

--Gay Bri

(To reply, click here.)

There may be more modern Supreme Court case law that could be used to argue against a strictly literal interpretation of Article II, sec. of the Constitution. This view is supported by a long line of cases interpreting power within state governments.

In effect, in voting a ballot initiative the people themselves are meeting 'as a legislature' to enact law. After all, the states themselves have great leeway to set up their own legislatures, why couldn't they just make every single voter in the state a member of the legislature for just one vote (a vote on the ballot issue)?

I think this issue is much more uncertain than this article seems to suggest,, and I think even court experts would be hard pressed to predict the outcome of a case on the merits with any certainty.

--fozzy

(To reply, click here.)

Maybe you don't like the electoral college, but this turn of events would NOT be the way to fix it. Look at it this way - the system may be unwieldy because, now, electoral votes are apportioned within the strict geographical boundaries of the each of the 50 states. However, if states started divvying up their votes by district, you open the doors for a nationwide gerrymandering crazy, as each state legislature struggles to apportion votes how the majority party sees fit.

Part of the reason the Electoral college 'works' is that State borders are essentially fixed, and somewhat arbitrary. Taken with the fact that electoral votes are winner-take-all for each state, each state is its own entity, electoral votes represent a statewide referendum on the presidency, one candidate or the other. To divide this up for the sake of more direct democracy will inevitably lead to battles like the one in Texas, 2004, as county and district lines are much more movable than state lines.

--jwschmidt

(To reply, click here.)

Madison would clearly be against the winner take all approach! He was afraid that the majority of people will force their view upon the minority and strip them of their rights, as the Californian Democrats have done that to the Californian Republicans. The Republicans have no right to a say in who becomes President, and their voice is as meaningless as it is in every other Democrat/Communist controlled state. One party rule is not what the Federalists were about.

--San

(To reply, click here.)

(9/15)

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