The Legislature ThereofCalifornia voters can't change the 2008 election rules on their own.
Posted Thursday, Sept. 13, 2007, at 7:34 AM ET
PRINT
DISCUSS
E-MAIL
RSS
RECOMMEND...
Facebook
MySpace
Mixx
Digg
Reddit
del.icio.us
Furl
Ma.gnolia
Sphere
StumbleUponThis is one matter of constitutional interpretation, then, on which the right and the left can agree. And that convergence makes it a good bet that, if a challenge to California's electoral-votes initiative ever reaches the Supreme Court, the justices will decide, perhaps even unanimously, that a ballot initiative cannot be used to trump the decisions of a state legislature on the appointment of electors. (Here's more on the law and a response to the arguments made by its supporters.)
There are solid policy reasons to respect the framers' choice to keep the designation of electoral votes in the hands of lawmakers. In his canonical "Federalist 10" essay, James Madison warned of factions: groups of citizens united by "some common impulse of passion" that is adverse to "the rights of other citizens, or to the permanent and aggregate interests of the community." Madison then explained that factions are better thwarted by a representative democracy (where elected representatives enact legislation on behalf of voters) than by a direct or pure democracy (where voters themselves make laws).
Progressive-era reformists disagreed with Madison. They saw voter initiatives as a way to limit the power of 19th century industrialists—Theodore Roosevelt's "malefactors of great wealth." The progressives set up ballot initiative procedures in more than 20 states. But the initiatives haven't worked out as they planned. In the words of commentator David Broder, "The experience with the initiative process at the state level in the last two decades is that wealthy individuals and special interests—the targets of the Populists and Progressives who brought us the initiative a century ago—have learned all too well how to subvert the process to their own purposes." Californians need only recall Proposition 90 of 2006, which would have gutted the state's famous environmental and land-use laws, and almost passed after Howie Rich, a developer from New York City, poured more than $3 million into the campaign for it.
It's hard to put the direct democracy genie back in the bottle: Voters like the idea of direct democracy and the power to make laws, even if they often don't like the results.
But there are some areas of law that the initiative process simply cannot touch, because the Constitution doesn't let it. The apportionment of votes for the Electoral College is one of them.
The John Cassavetes Movie That Changed American Cinema Forever
Am I Wasting My Money if I Give to a Needy Family at Christmas?
Troy Patterson: What I Love About Glee
Hurray! We Won the War on Spam.
Bill Simmons' The Book of Basketball Is a Crude, Fantastic Mess
Thanks, FDA, but We Don't Need Your Protection From Raw Oysters
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)