California’s Electoral Votes and the Constitution
posted by Peter Smith
A proposed ballot measure in California to apportion the state’s electoral votes by congressional district, rather than awarding all of the state’s electoral votes to the candidate who wins the statewide popular vote, has received much-deserved attention recently. Some Republicans—including many supporters of Rudolph Giuliani’s campaign—have supported the ballot initiative because they recognize its potential to confer upon the Republican nominee a windfall of roughly 20 electoral votes in an otherwise solidly Democratic state; Democrats have uniformly opposed the measure, for the same reason. The measure has also renewed debate about the fairness and wisdom of the Electoral College.
There is much to be said, as a matter of policy, about the California initiative. If it is successful, for example, it is likely to lead to similar efforts in other states, driven (as is the California effort) more by partisan aims than by concerns about representative democracy in presidential elections. But the proposal suffers from a much more serious defect: it is very likely unconstitutional.
Article II, section 1, clause 2 of the Constitution provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in Congress.” The proposed measure in California will be decided not by the state legislature, but rather by the voters in a statewide ballot initiative. This end-run around the legislature—which, proponents of the measure obviously realize, is controlled by Democrats unwilling to sign away their party’s hopes in the next presidential election—seems flatly inconsistent with the language of Article II.
Until fairly recently, this clause was among the document’s more obscure provisions. But it played a central—even if not dispositive—role in the litigation that followed, and ultimately decided, the 2000 presidential election. Conservatives, outraged at what they viewed as a partisan effort of the Democratic-controlled Supreme Court of Florida to award votes to Al Gore, argued that the Florida courts were impermissibly usurping the power of the Florida legislature to establish rules for the counting of ballots in presidential elections. And in Bush v. Gore, three Justices—Rehnquist, Scalia, and Thomas—ruled for Bush on this very ground. Chief Justice Rehnquist’s opinion argued that the Florida Supreme Court had “infringed upon the legislature’s authority” to determine the manner in which the state’s electoral votes would be awarded.
That view, to be sure, did not command a majority of the Court. But the question for the Court in Bush v. Gore—whether a court’s interpretation of laws that the legislature previously had enacted to govern the allocation of the state’s electoral votes—was substantially more difficult than the question presented by the California ballot initiative. There is no clear line, after all, between judicial “interpretation” of ambiguous statutory language and judicial decision-making that strays so far from the statutory language that it effectively replaces the legislature’s enacted language with the judiciary’s preferred policy. But if a court’s efforts to interpret a statute governing the counting of votes in a presidential election can, under some circumstances, infringe upon a state legislature’s prerogatives under Article II of the Constitution, then surely an effort entirely to exclude the state legislature from creating the rules to govern the award of electoral votes is constitutionally problematic.
Of course, many legal scholars think that Bush v. Gore—and in particular Chief Justice Rehnquist’s opinion—stands on very shaky legal ground. But many of the arguments against his approach in that case are not as compelling when asserted in the context of the California ballot initiative. In addition to arguing that Florida election law presumed the customary interpretive authority of the courts, Gore’s lawyers argued that Article II was not a problem because the Florida legislature had played a decisive role in the enactment of the state constitutional provisions that authorized the courts to interpret the state’s statutes. In contrast, the California state constitution, which authorizes ballot initiatives for certain matters, was adopted in a popular convention, not by a vote of the legislature.
In addition, there are other precedents that seem to confirm that, regardless of the relevance of Article II to the dispute in Bush v. Gore, a state cannot use a ballot initiative to change the state’s process for awarding electoral votes. In a case decided in 1892, the Court observed that a state legislature has “plenary authority to direct the manner of appointment” of electors, and stated that the Constitution “recognizes that the people act through their representatives in the legislature, and it leaves it to the legislature exclusively to define the method of effecting the object.” The Court has also read literally the term “legislature” when used in other parts of the Constitution. Article V of the Constitution, for example, permits amendments to the Constitution after a two-thirds vote in both houses of Congress and ratification by “the Legislatures of three fourths of the several States.” In a 1920 case, the Court upheld a challenge to an Ohio ballot initiative that threatened to reverse the state legislature’s decision to ratify the 18th Amendment. The Court explained that “the framers of the Constitution clearly understood and carefully used the terms in which that instrument referred to the action of the Legislatures of the states. When they intended that direct action by the people should be had they[,] were no less accurate in the use of apt phraseology to carry out such purpose.”
One thing is certain. If the California ballot initiative succeeds, it will embroil the nation in yet another round of litigation over a presidential election. And this time, those challenging the action of the state will have strong constitutional ground on which to stand.
October 8, 2007 at 1:04 pm
Posted in: Constitutional Law
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Responses (6)
Joel S. Hirschhorn - October 9, 2007 at 7:48 am
All Americans that love our country but see the need for deep political reforms should seriously examine the materials on http://www.foavc.org 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.
Ethan Leib - October 9, 2007 at 1:13 pm
Thought this was dead:
http://latimesblogs.latimes.com/washington/2007/09/breaking-news-e.html.
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.
Doug Kendall - October 10, 2007 at 11:43 am
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.
Ethan Leib - October 10, 2007 at 6:05 pm
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.
Simon - October 11, 2007 at 9:48 am
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
c&d - October 14, 2007 at 2:23 pm
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)
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