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The So-Called Presidential Election Reform Act: A Clear Abuse of California's Initiative Process


Friday, Aug. 17, 2007

If ever there were an illustration of how the initiative process in California is susceptible to abuse, and can operate as a trap for the unwary voter, it is a recent proposal entitled the "Presidential Election Reform Act" (PERA). PERA's sponsors -- the misleadingly-named "Californians for Equal Representation" -- hope to qualify it for the June 2008 primary ballot. If California voters are wise, they'll reject it summarily - for reasons I will explain in this column.

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

If approved, PERA would alter the way California allocates its electors in the Electoral College. To understand the change, we must first recap the current system:

Each state has an Electoral College allotment equal to the number of U.S. House Representatives and U.S. Senators from that state. California has 55 - for 53 Representatives plus two Senators.

Like 47 other states (all but Nebraska and Maine), California commits its entire Electoral College allotment to the presidential candidate who wins the most votes statewide in the November general election - a "winner take all" approach.

It is not surprising that this approach to presidential elections has proven so popular among the states for over 100 years: If each state's desire is to maximize its own importance in the presidential election process, this system is usually the most optimal. By providing each presidential candidate with a large return (in the form of the state's entire electoral college vote, rather than just a few additional electors) in exchange for promises and platform planks targeted to the state's electorate, a winner-take-all state can - and historically has -- increased the likelihood that all of the candidates will take that state seriously and address its needs and concerns in order to win over the state's median voters.

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, because data suggests he outpolled Senator Kerry in 22 Congressional districts.

The Argument In Favor of the Change - and Why It's Deeply Flawed

The justification asserted by PERA's proponents - taken from the papers they filed with the California Attorney General -- is as follows: "California is largely taken for granted by Presidential candidates because of its winner-take-all system of awarding its electoral votes. In recent elections, Presidential candidates have spent more time trying to win votes in smaller states. . . . If California eliminated its winner-take-all system of awarding its electoral votes, Presidential candidates would have an incentive to campaign in California."

This proposal, and its supposed justification, are so flawed it's hard to know where to begin.

For starters, the proposal might be unconstitutional, at least in the eyes of the Supreme Court. In Bush v. Gore, a concurring opinion by Chief Justice Rehnquist and Justices Scalia and Thomas (an opinion that likely had the tacit support of Justices O'Connor and Kennedy, as well) concluded that when the federal Constitution, in Article II, enlists state "legislatures" to determine the method of selecting members of the Electoral College, the Constitution necessarily forbids states from involving other entities (such as state courts) in a way that interferes with the state legislature's wishes.

That kind of interference, these Justices thought, was precisely the federal constitutional violation happening in Florida in late 2000: Florida courts were intruding on the unfettered discretion the federal Constitution had given, by use of the word "legislature" in Article II, to the state legislature, not its courts.

There is a significant chance the current Court would continue to hold that Article II's specific reference to state "legislatures" insulates those legislatures from judicial oversight that otherwise would be provided for under state law. (This is a proposition with which I personally disagree, but one which underpinned the Bush v. Gore concurrence). If that is so, it is at least arguable that the same could be said about popular initiatives that override and thus displace the statutes the California legislature has already passed in this area: These initiatives, too, might be seen by the Court as impermissibly interfering with the legislature's complete discretion in this area.

Transparent Partisan Ploys Interfere With Legitimate Reform Efforts: This Isn't an Issue of National Electoral Reform, But of Turning a Blue State Partially Red

Second, if moving away from winner-take-all rules made policy sense for the country, surely blue states should not do so if red states are not doing so as well. It is neither fair nor sensible to think that California Democrats, who hold a majority in the state, should unilaterally give up their clout in electing a President if Republican majorities in other states are not doing the same thing in states they control. It is more than ironic that an organization that calls itself "Californians for Equal Representation" could support a scheme that would produce such partisan inequality.

One cardinal rule about Presidential electoral reform today ought to be that it must not predictably and intentionally disadvantage one party over the other. Sensible change in this area is hard enough to accomplish without wasting our time on obviously partisan ploys. (For this reason, North Carolina Democrat efforts to tinker with winner-take-all rules there, to increase Democratic party clout, are similarly misguided.)

It is interesting to note that because of demographic differences between big and small states and because of the way congressional district lines are currently drawn in various parts of the country, even if a district-by-district approach were adopted in all the states today, such a change in the status quo would systematically redound to the benefit of the Republican Party. As scholars have recently documented, if every state followed the Maine/Nebraska approach in 2000, Bush would have beaten Gore in the electoral college by a margin of 289 to 249, which is much larger than the margin by which Bush actually won. Thus, even if the California initiative were replicated nationally, it would still be too partisan to garner serious consideration.

The PERA is Ludicrous Even On Its Own Terms

Third, and most tellingly, the rationale for the PERA advanced by its drafters is laughable on its face. Virtually every one of California's congressional districts has been drawn to be "safe" for either Democrats or Republicans, so that just as the statewide vote count is almost surely to lean Democratic these days, the results in each district are almost completely predictable and immutable from the beginning of the presidential campaign. There are precious few "competitive" congressional districts in the state where the district outcome is unclear enough to encourage Presidential candidates to come in and campaign.

In this regard, it bears noting that in only 1 of the 53 California districts in the last Presidential election year (2004) was the result between the Democratic and Republican candidate for the House closer than 10%. In the overwhelming majority of districts, the Democrat beat the Republican, or vice versa, by well more than 25%.

So even if PERA supporters were factually correct that California as a whole is so intractably blue for the indefinite future that the statewide vote winner is always going to be a Democrat who can thus take the state for granted (a premise some political scientists would challenge), the idea that allotting electors on a district-by-district basis would create any more incentive for Presidential candidates to come to California these days is empirically implausible. Indeed, the consistent practice of creating safe districts seems much more likely to endure than any particular state's blueness or redness.

Nor can PERA's backers gain any mileage by arguing that their approach "makes every vote, even those in the minority, count." Rhetoric notwithstanding, PERA's allotment scheme is itself winner-take-all; the only question is whether we have a system in which the statewide winner takes all of the state's 55 votes, or whether we have a system (under PERA) in which each district winner takes all of that district's one electoral vote.

In other words, under PERA, the group of losing voters in each congressional district could make the same gripes about disenfranchisement that the state minority party does today; in each district, the voice of the minority voters counts for nothing because the elector representing that district will cast that district's sole electoral college vote for the other candidate.

Real Reform Would Involve A Direct National Popular Election

Which brings me to the real way to make every vote count and encourage Presidential candidates to campaign in California - adopt the national popular election plan about which I've written extensively before (and which is also being considered by legislators in California right now.) If the national popular vote winner were automatically made President, every voter's vote nationwide would count - and count for the same thing. (There's something Californians truly dedicated to "Equal Representation" should rally around.)

Moreover, candidates would go wherever there were undecided voters to won over. That would include California in a big way, because notwithstanding the state's blueness, there are always a large number of undecideds in such a big state. But California (and similar places) wouldn't be the only targets for candidates; they would be interested in any state where non-trivial numbers of people hadn't made up their minds.

And unlike PERA, this reform wouldn't favor one party over the other. (Consider that although Bush won in 2000 with fewer votes than Gore, most experts thought that the inverse result was more likely to occur - that Gore would win the electoral college but lose the national popular vote. And note also in this regard that in 2004 if Kerry had won 150,000 more votes in Ohio, he would be President even though Bush won the national popular vote by millions.)

Finally, a direct national election would create an incentive for parties and candidates to increase voter turnout all over the country (because every vote would count.) Neither the current system, nor the system contemplated by PERA, creates such a beneficial incentive.

The fact that PERA's proponents seem to eschew this simple, non-partisan, and more normatively attractive route to encouraging candidates to take all Golden State voters (and voters elsewhere too) seriously should cause thoughtful Californians to reject the initiative proposal, no matter how much money ends up being thrown behind it.

Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. 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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