California Initiative Would Redistribute State's Electoral Votes

Most Americans erroneously believe that their direct vote elects the President.  Popular opinion aside, Article II of the United States Constitution sets forth the manner in which a U.S. President is elected, giving to state legislatures the power to determine how to appoint the electors — the members of the Electoral College who elect a President.

From the 1789 election until 1828, the states used a wide array of techniques to choose their electors. The plurality of states then used the winner-take-all method 48 states use today. Some legislatures reserved for themselves the right to appoint each elector. Others divided their states into electoral districts so that all electoral votes, even the two for the Senate, were voted on by the people directly in each district. Finally, some states apportioned each elector per the popular vote of each congressional district, with the overall winner of the state’s popular vote receiving two electors.

This latter method, used by Maine as late as 1828 and in Massachusetts before that, was readopted by Maine in 1972 and enacted by Nebraska in 1996. Neither state has split its vote since then, but divided electoral delegations were fairly common in the early years of the Republic.

High Hurdle

The winner-take-all assignment of electoral votes has come under fire in recent years because it has tended to magnify the importance of “battleground” states such as Ohio and Florida at the expense of states seen as being firmly in one camp or another. Suggestions to change or do away with the Electoral College aren’t new, with some 400 proposals to do so introduced in Congress in the past 120 years, many requiring a constitutional amendment — a high hurdle, especially if the small states believe their electoral power is being diluted, making ratification by three-fourths of the states nearly impossible.

One proposed Electoral College reform is a “national popular vote” that would seek to cobble together enough states to constitute a majority of the Electoral College in a “compact” where they would agree to assign their electors to the national popular-vote winner. This would, for all intents and purposes, amend the Constitution without the inconvenience of actually having to amend the Constitution. This idea violates Article I, Section 10 of the Constitution, however, which prohibits any “compact” among states unless approved by Congress. California Gov. Arnold Schwarzenegger (R.) vetoed just such a bill last year.

An alternative approach is being considered in California and in North Carolina under which, as in Maine and Nebraska, the winner of each congressional district would be awarded one elector with the winner of the state receiving two votes. Since the 2000 election, at least 19 other states have considered the same reform, known popularly as the “Maine Plan.”

The North Carolina plan is being pushed through by the Democrat-controlled legislature as a counter to that state’s having voted Republican in every presidential election since 1976. If North Carolina had had this system in effect in 2000, three of its electoral votes would have gone to Vice President Al Gore.

Should California adopt this rule, 19 to 20 Electoral College votes out of its huge allotment of 55 would likely go to the Republican nominee instead of what everyone assumes will be a clean sweep for the Democratic nominee in California in November 2008. Of course, the California legislature is firmly in the hands of Democrats, so this proposal has to seek success in a different venue: the initiative process.

On September 5, Initiative No. 07-0032, known as the Presidential Election Reform Act, was cleared by California Atty. Gen. Jerry Brown to collect the 433,971 signatures needed to place the initiative on the June 2008 ballot.  Californians for Equal Representation, the group sponsoring the initiative, is connected with the Republican law firm of Bell, McAndrews & Hiltachk. The California Republican Party formally endorsed the initiative at its state convention September 9. Most political insiders expect Californians for Equal Representation to easily raise the $2 million needed to qualify the measure for the ballot. This has raised the alarm of national Democratic leaders who see a danger to their winning the Presidency in 2008 if California votes to approve the plan next June.

Stage Is Set

Ironically, the conditions were set for a California June primary victory for the “Maine Plan” when the Democratic legislature moved the presidential primary from June to February for the purpose of placing a term-limits extension on the ballot in time for termed-out legislative leaders to run for re-election in June. Political experts say this extra election in 2008 will suppress the June primary turnout as there will be no statewide candidates on the ballot then and people will have voted only four months earlier. With what may be a record-low turnout in June, the Republican-inspired proposal to breakup California’s winner-take-all Electoral College vote system is more likely to pass in what may be a $50-million high-profile struggle — a struggle that may determine the President five months before the November election.

 As a last bit of supreme political irony, if the “Maine Plan” does pass in California, the Constitution itself may be the only recourse for the same liberals who constantly seek to get around it. Article II specifies that the “legislature” of each state directs the appointment of electors — this may exclude the people themselves from exercising their legislative power directly through a popularly voted initiative.