California's Proposed Presidential Election Reform Act: New Wrinkles Arising From Its Possible Inclusion on the November, Rather than June, 2008 Ballot

By VIKRAM DAVID AMAR

Friday, Dec. 21, 2007

Two weeks ago, backers of a controversial California initiative that would change the way the State picks its electors to the so-called "electoral college" announced that the measure would not be certified in time to qualify for the June 2008 election. Instead, its supporters explained, they would attempt to have the proposal placed on the November 2008 ballot.

In an earlier column I wrote about the initiative - called the Presidential Election Reform Act (PERA) - and explained why I thought it was such a bad idea. Now, the possibility that it will be voted on (and potentially approved) in November, rather than June, raises additional legal questions that I will examine in today's column.

How PERA Would Change the Current Winner-Take-All System

First, I'll briefly recap what PERA would do and why, even before this latest development, it might have been invalidated in court. (Readers seeking a more in-depth account may want to consult my prior column.)

Like 47 other states (all but Nebraska and Maine), California commits its entire electoral college allotment (55 votes, the most in the nation) to the presidential candidate who wins the most votes statewide in the November general election -- a "winner take all" approach. PERA would eliminate California's winner-take-all system and replace it with one in which California would, like Nebraska and Maine, award two electoral college votes to the candidate who received the most popular votes statewide, and then award one electoral college vote to each candidate for every one of the 53 California congressional districts in which s/he received the most votes.

In the 2000 election, that would have meant that instead of Vice-President Gore winning all of California's electors, Governor Bush would have won 19. In 2004, President Bush would have won 22 electors in California, rather than Kerry's winning all the electors, because data suggests he outpolled Senator Kerry in 22 Congressional districts.

In addition to compelling policy arguments against the measure, there is (as I discussed in my previous column) a non-trivial possibility that a court would rule that, under Article II of the federal Constitution, a state may not by popular initiative determine the way presidential electors are selected. Rather, only regular standing state "legislatures" (the word used in Article II) can tinker with the process of picking electors.

Still, let's assume that this Article II argument fails - because states are free to regulate their means of choosing electors by direct democracy initiatives, and/or because courts avoid this issue on the grounds it is a "political question." Even so, there remains the hugely important question of whether PERA could apply to next year's presidential election, or instead whether its change in selection procedures could be applied only to presidential elections beginning in 2012.

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Does Federal Law Prohibit a State From Applying a Change Adopted in the November General Election to the Presidential Race Conducted That Same Day?

Some critics of PERA have suggested that, even if it were approved in November, its application to the 2008 Presidential election would violate the federal Constitution and/or federal statutes. As to the Constitution, while the question is complex, I am inclined to think there is no inherent federal constitutional barrier to the instantaneous application of a measure adopted in a November election to that very election. However, I also believe that this facet of any measure -- instantaneous application -- would have to be made clear and explicit on the face of any such initiative. Yet it seems very unlikely that PERA provides this type of clarity and explicitness, as I explain below.

In the (in)famous Bush v. Gore ruling, the Supreme Court said that "[t]he individual citizen has no federal constitutional right to vote for the electors for the President of the United States unless and until [his/her state] chooses a statewide election as the means" of picking electors. In other words, a given state could simply choose not to have a November general presidential election at all and select presidential electors by some means other than a general popular election.

But once a state does opt to have a statewide general election, the Court went on to say, the right for voters to participate in that election is constitutionally "fundamental" and cannot be denied or abridged except for compelling reasons.

Included within the fundamental right to vote is the right to know exactly what you are voting on and the implications of the election in which you are participating. Thus, while states can decide not to have November general presidential elections, once they do choose to have such elections, they must clearly notify voters of the rules of the elections, and the implications of voters' decisions.

Based on this principle, then, if PERA were to apply to the 2008 presidential cycle, then PERA itself would have to unequivocally let voters know that their votes on PERA could affect the 2008 campaign, rather than simply change the means of selecting presidential electors in subsequent presidential election cycles (beginning in 2012).

PERA as written does not seem to satisfy this requirement of clear notice with respect to its instantaneous application. The California Constitution provides that unless an initiative otherwise so states, it (if passed) shall take effect on the day after the election in which it is approved. PERA contains no explicit language on the date of its implementation, and thus would fall under this state constitutional default rule of post-election effect. Voters thus would expect, if anything, that PERA, if enacted, would apply only to the 2012 and later presidential elections. (PERA's reference in one place to its application in "ensuing" elections would seem only to reinforce this expectation.) Due to this reasonable expectation, there would appear to be a federal constitutional problem if PERA were unexpectedly applied to the 2008 election.

Nor could someone argue that any voter who supports PERA would necessarily support its instantaneous application. Many principled voters might very well think PERA is an unfair political stunt if applied to the 2008 election, where its benefits for the Republican Party are clear, but that it would be a systemic procedural improvement if its application were to be delayed until 2012, when we don't yet know which political party it might help or hurt. Thus, informing all voters of exactly when PERA kicks in is crucial to having voters act in an informed and intelligent way.

There is a second reason why voters might expect PERA not to apply until 2012; PERA itself requires the California Secretary of State to list the names of presidential elector candidates from both political parties who reside in each congressional district on the presidential ballots to which PERA applies. Yet, because PERA is not law as of now (and won't be when the ballot forms are printed), the Secretary of State will not list such names on the November 2008 ballot. And the absence of such names would lead voters to think that PERA's method of allocating electors is simply not on the table in 2008, and is instead being considered only for use in subsequent elections.

These aspects of PERA should incline a court, should PERA be approved, to hold that, as a matter of state law, PERA does not affect the 2008 election. Especially given the federal constitutional problem of inadequate notice to voters, any interpretation of PERA that seeks to apply it to the present presidential election cycle should be rejected. Moreover, if state courts insist on interpreting it as applying to the 2008 election, that decision should be reversed by the Supreme Court because voters could have been misled by PERA's lack of clarity in the matter.

Possible Federal Statutory Grounds for Prohibiting PERA's Application to the 2008 Election

PERA detractors have also suggested that federal statutes, particularly parts of the so-called Electoral Count Act that the Supreme Court adverted to in Bush v. Gore, should also prevent PERA's application to the upcoming presidential contest. I tend to disagree with reliance on these statutes, however.

One such federal statutory provision, the so-called "safe harbor" provision, does seem to require states to have their election procedures in place before the day of the November presidential election. This would seem to foreclose tweaking such laws on the day of the November presidential election itself. But there are two reasons I think this safe-harbor provision is not relevant here. First, as various members of the Bush v. Gore Court noted, this provision does not mandate states to do anything; it merely creates a "safe harbor" for their decisions to be respected by Congress if they comply with certain federal requirements. The Court held that Florida had, in fact, wanted to utilize this "safe harbor" in 2000, but nothing prevents California or any other state from deciding not to take advantage of its protections if that is what the state decides to do.

Second, the safe-harbor provision seems, at most, to require that a state's laws be fixed before the November election only insofar as the state laws spell out a process for resolving disputes about who a state's legitimate electors are. Since PERA would alter the manner of picking electors, not the manner of resolving post-election disputes about the picking of electors, the safe-harbor provision would appear to be beside the point.

Finally, PERA critics point to a separate provision of the Electoral Count Act. The provision implements the undeniable constitutional authority Congress has been granted in Article II to "determine the Time of chusing the Electors." More specifically, the statute says that "the [presidential] electors shall be appointed, in each State, on" the first Tuesday after the first Monday in November. This provision, PERA opponents argue, prevents PERA from requiring that California's electors be selected on any date after election day.

But PERA doesn't change the date on which the electors are picked, only the way they are picked. PERA itself says "[a]t the general election" in November, there "shall be chosen by the voters of the state" the 55 presidential electors. So PERA doesn't tinker with the timing of elector selection.

Nor does the fact that it might take a few days to figure out who actually won the November election in California, either statewide or in particular congressional districts under PERA, alter things. Many states do not finish tallying popular votes until a day or more after the Tuesday election, and that has never been thought to run afoul of the Electoral Count Act.

The Bottom Line: PERA Should Not Be Read to Govern the 2008 Presidential Election

In the end, then, PERA should not be read to apply to the 2008 election for two key reasons: Under state law principles of construing initiatives, such application is dubious. Moreover, this dubious and unexpected application would implicate and violate the fundamental constitutional right of voters to know what they're deciding. In my view, no federal statute prohibits PERA's instantaneous application, but the powerful California-law and constitutional principles I have discussed do.


Vikram David Amar is a professor of law at the University of California, Davis, School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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