California’s Electoral Votes and the Constitution

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6 Responses

  1. All Americans that love our country but see the need for deep political reforms should seriously examine the materials on and become a member to help us achieve the first Article V convention – that the Framers gave us because they thought that one day Americans would lose confidence in the federal government. That day has arrived.

  2. Ethan Leib says:

    Thought this was dead:

    I’m skeptical of the constitutional argument too: Since Pacific States, the Court has conceded that it is up to Congress to decide if a state’s use of the initiative and/or referendum takes too much power away from the state legislature. If the state legislature reserves the initiative power to the people — as California’s does — it is hard to see why the people aren’t effectively acting as the state legislature when they engage in passing a law controlling electoral vote distribution. As Stevens suggested in Bush v Gore, the Legislature has to be taken as it is found, with all the internal limitations on its power in its own state constitution. In theory, the state legislature could try to circumvent the hypothetical initiative’s direction by certifying a different electoral distribution. But then it would be for Congress, not the Court, to decide which electoral votes to count. At least that is how Pacific States would suggest that the Court should handle the issue where it to arise.

    The Article V parity argument is your strongest one — but there may be reasons to distinguish the two provisions. The easiest way is the use of the word “shall” in Article V — and the word “may” (in connection with the word Legislature) in Article II. One could make structural arguments too — but the may/shall distinction is the cleanest.

  3. Doug Kendall says:

    I prepared a fairly detailed legal analysis of this question to accompany an article in Slate. For the reasons detailed there, I agree with Peter Smith that a ballot initiative cannot be used to change the manner chosen by the legislature to allocate electors. I agree with Ethan Leib only on this: the California effort is either dead or on life-support.

  4. Ethan Leib says:

    Nice memo. But a lot seems to ride on your reliance upon an 1874 Senate Report and your security that the Art II.1 context is more like the Art V context (assuming that Hawke is rightly decided) than it is like the Art I.4 context. I’m much less sure about that. In Art V (assuming Hawke is rightly decided), the state legislatures clearly must ratify as a necessary — or is it merely a sufficient? — condition for amendment. In both Art II and Art I.4, the legislature gets to “prescribe” or “direct” — an action preumptively done through law. Smiley helps reinforce the idea that that prescription and direction can be constrained by the legislature’s own powers under state constitutions. It is surely a close question on precedent and history (though I tend to think the precedent is much more equivocal than you suggest) — but that leaves us with some important policy questions that need to help orient our constitutional interpretation. And it seems obvious to me that we ought to facilitate popular and direct sovereignty when possible. Many have other views on that question. But let’s be honest that that debate is doing some of the work in figuring out which is the better analogy for Art II: Art V or Art I.

  5. Simon says:

    At the risk of self-promotion, I had a post here making essentially the same argument. The way that I look at it is that we should distinguish between commandeering the legislature to perform certain tasks and commandeering a state’s legislative process (or perhaps the state government in the abstract) for the same; I suggested that it’s the former, and that has significant consequences, one of which (as Peter alluded to) is that the Chief was correct in Bush, and one of which is that the California proposal would violate article ii.

    A commenter on my post asked – and Ethan touched indirectly on this in his comment above, so maybe he’d like to offer some thoughts on it – what would happen under this interpretation in a hypothetical where a state abolishes what we’d think of as a traditional “legislature” adopting instead a 100% legislation-by-proposition model (assume arguendo this doesn’t violate the republican form of government clause)? Or to broaden the point, what happens when an institution presupposed by the framers disappears (Amar has made a similar point in connection to the Second Amendment)? In that situation, can that state appoint electors, ratify amendments and so forth? How can we permit that without ultimately adopting the legislative processprocess

  6. c&d says:

    Given that the legislature must make the decision, did Governor Schwarzenegger have the authority to veto a bill that would have make California a signatory to an interstate compact to distribute its electoral votes to the popular vote winner? (See AB 2948, 2006)