California to give presidential electoral votes to popular-vote winner?

posted at 7:00 pm on September 22, 2006 by Allahpundit

Call it “the Gore rule.” Also call it stupid. Blue states shouldn’t be signing away their prerogative to vote blue unless and until (a) they’ve gotten swing states to follow suit, or (b) they’re sure enough that American demography is trending Democratic long-term (which may well be the case given the increasing Hispanic population) that they’re willing to risk bad short-term results to exploit that. After all, the electoral/popular split in 2000 isn’t a uniquely left-wing pitfall; Bush would have been on the short end of it in ’04 if 60,000 votes in Ohio had gone the other way. If this goes through, Cali will be staring down the barrel of a scenario in ’08 where the GOP banks 55 electoral votes even though the state’s voters will have broken hard for Hillary. Which is why, I’m sure, if they can’t bring a few other states on board in the next 15 months or so, they’ll simply repeal this little experiment before the election.

What incentive do swing states have to adopt this scheme, anyway? They’re the belles of the ball during the campaign season. A few hundred Florida voters decided the election six years ago. Forfeiting their electoral votes to the popular vote would reduce their political capital considerably. I can’t see many red states going along either. The small ones need the electoral college to make them relevant and the big ones like Texas have too much state pride to contract out their decision to the population at large.

If the big blues want the popular vote to decide who’s president, there’s an easy solution — let them attract more residents. The way California’s going, once Bush rams home that amnesty plan they’ll have about 500 electoral votes. By 2020, the national campaign trail will run from San Diego to L.A. to San Francisco and back again.

Since we’re talking civics, here’s some red meat from Ace proposing that Supreme Court decisions be overrideable by 3/5ths of both houses of Congress. He thinks the amendment process is unduly onerous when it comes to overruling the ipse dixits of five unelected judges, particularly when judicial review isn’t explicitly endorsed by the Constitution. I think at the very least his proposal should require 2/3rds of both houses, the same as it takes to override a presidential veto. His answer to that is that the veto is a constitutionally enumerated power whereas judicial review is not. True, but judicial review affects constitutional law; the veto affects mere statutory law. Under Ace’s scheme, it’d be harder for Congress to pass an ordinary act than to change the meaning of constitutional clauses.

All we’re haggling over here is numbers, though. 3/5ths, 2/3rds, some fraction of states: everyone agrees that it should take something “extra” to override a Supreme Court decision. The only issue is how much extra. The numbers don’t much matter: they had 66 votes in the Senate to pass a flag-burning amendment that was basically symbolic and wouldn’t have affected anyone’s freedom of speech beyond its own exceedingly narrow scope, and they still couldn’t get the 67th vote. Why? Because most people regard the Constitution as so sacrosanct that it’s considered almost a form of desecration to want to amend it. Whatever number you settle on, that quasi-religious feeling is your main obstacle to reform, not the numbers.

And there’s today’s civics lesson. The perfect fun, breezy topic for a Friday night.

Update: Turns out the California bill has a sort of built-in repeal measure:

The proposed interstate compact implements nationwide popular election of the President by having states agree to jointly award all of their electoral votes to the presidential candidate receiving the most popular votes in all 50 states and the District of Columbia. The proposed interstate compact would not take effect until identical legislation is enacted by states possessing a majority of the electoral votes (that is, 270 of the 538 electoral votes). Thus, the compact would only take effect when it can guarantee an Electoral College majority to the presidential candidate receiving the most popular votes in all 50 states and the District of Columbia.

That makes more sense, but since most of the participants in this compact are likely to be solid blue states, why form a bloc at all? You’re only putting safe Democratic electoral votes in jeopardy.


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Comments

I heard something about this a few months ago and tried to pretend it wasn’t real…ugh.

Allah, this point is great

If this goes through, Cali will be staring down the barrel of a scenario in ‘08 where the GOP banks 55 electoral votes even though the state’s voters will have broken hard for Hillary. Which is why, I’m sure, if they can’t bring a few other states on board in the next 15 months or so, they’ll simply repeal this little experiment before the election.

BUT…

Considering the ballots in SF are written in at least 10 different languages, and who knows who’s translating the info, and the big cities are “sanctuary cities” for illegal voters, and i.d. is not required to vote, and the mob mentality of said big city voters leads them to follow and re-elect people like Pelosi, Feinstain, Newsome, and Villaraigosa, I’d say this is a clear and present danger to our country. In the long run, at least…

2/3rds vote sounds good for overriding the ACLU-stacked SCOTUS. 3/5ths would be nice, but if the tables were turned it would work against conservatives and constitutionalists…

My head hurts.

NTWR on September 22, 2006 at 7:25 PM

I think that the plan requires that enough states, with sufficient electoral mojo, approve the popular vote distribution before the CA electors are required to vote according to the national popular vote.

rw on September 22, 2006 at 7:34 PM

Did they forget Bush got the popular vote the second time? They wouldn’t be able to cry election fraud then…

On second thought, they’d cry about it regardless.

Enoxo on September 22, 2006 at 7:35 PM

You know, our Founding Fathers were truly brilliant. They had the ability to foresee what would happen without an electoral college- the big cities would control everything.

For instance, in Cali, the state would be run by LA (which it pretty much already is) but that would mean they would decide that all of the water in the state would go to them.

Write to the Governator, Caulifornians. He’s “seriously considering” this bill and has until September 30th to sign it.

NTWR on September 22, 2006 at 7:57 PM

OK, I know it’s for “presidential electoral votes” but think about the slippery slope here.

NTWR on September 22, 2006 at 7:58 PM

Will be interesting to see what happens when this one shows up on the supreme court docket.

Lawrence on September 22, 2006 at 8:04 PM

1.) These electoral college plans are only really popular with liberals. Which means these proposals will only get enough support in states that are likely to send all their electoral votes to the Democrats anyway. Which can only increase the risk of their electoral votes going to the opposite party. I am wholeheartedly in favor of their plan. (It would also mean that something like Diebold voting machine fraud in Texas could increase the chances of California’s electors voting for a Republican.)

2.) The Supreme Court will always have judicial review, it’s a logical extension of their judicial powers.

Congress: X is now illegal.
Supreme Court: That law’s unconstitutional.
Congress: Oh yeah, 3/5ths say it’s still illegal.
Supreme Court: Don’t care. We won’t convict anyone.
Guy arrested for X: Why yes, I think I will appeal.
Executive Branch: Exactly why should I arrest anyone when the charges will be thrown out?

I could see changing the terms for justices to some long period that’s less than lifetime and possible making it slightly easier to get rid of SC justices. (Man, if you thought the nomination process was rough now…) Anything else would essentially be amending the Constitution.

dorkafork on September 22, 2006 at 9:02 PM

A slap in the face to our wise founding fathers? ;-(

speedmaster on September 22, 2006 at 9:08 PM

rw is right:

I think that the plan requires that enough states, with sufficient electoral mojo, approve the popular vote distribution before the CA electors are required to vote according to the national popular vote.

National Popular Vote

The proposed interstate compact would not take effect until identical legislation is enacted by states possessing a majority of the electoral votes (that is, 270 of the 538 electoral votes). Thus, the compact would only take effect when it can guarantee an Electoral College majority to the presidential candidate receiving the most popular votes in all 50 states and the District of Columbia.

Jobius on September 22, 2006 at 10:26 PM

Our Founding Fathers didn’t forsee anything the way some of you are thinking. The truth was that an electoral college was about the only way to administer a democratic vote in the United States in their day.

Still, the system has worked well. Tinker with it at your own risk.

tommy1 on September 22, 2006 at 10:52 PM

Tommy1, you’re on the right track. It’s still the best way to administer a democratic vote in the US. Remember, the Union was formed by agreement of the states in the interest of each state remaining sovereign, and no state having more control over the federal government than any other.

This scheme is just another way for the libs to try and get rid of the electoral college, except without actually getting rid of it.

Jezla on September 22, 2006 at 11:10 PM

Just more proof that the California legislature is made up of idiots. If the rule were in force back in 2000, Bush would have still won since Gore had already won California’s Electoral College votes. If anything, the rule will help Republicans much more so than Democrats.

I can’t help but wonder how long it will be before someone realizes this and declares it to be another Rove scheme to disenfranchise illegal aliens from their right to vote.

.

GT on September 23, 2006 at 12:03 AM

Just more proof that the California legislature is made up of idiots.

GT, what an obvious and painful reminder :(

In 20 years, even in Calif. the conservatives will outnumber the liberals: higher birth rate, Blacks moving back home and Latinos voting half and half, as they do now. It’s a myth that Latinos are a ‘natural’ constituency for the Left.

Entelechy on September 23, 2006 at 12:50 AM

You know, our Founding Fathers were truly brilliant. They had the ability to foresee what would happen without an electoral college- the big cities would control everything.

NTWR

I agree. Not only would the population centers choose every President, but it would be much much easier to buy an election. You only need 1 more vote than the other side to take all the electoral. That is, you only need to buy or fake one more vote than the other side to buy all the electoral.

A Soros dream system.

This is a mini version of a straight national vote for President, it requires you to spread the fraud and work a bit harder, but a step up if you are a crook.

The big cities of the blue states are as crooked as Tamany ever was. The illegals have been set up with voter cards and a total lack of incentive to honor the system and play straight. Bums, winos, druggies, nutcases, medicaid nursing homes filled with alzheimer patients, and dead voters are the lifeblood of the big cities. They always come through for their masters.

Rural voters can skip the Presidential if this plan goes through.

I don’t care about the triggers put into this plan. It is a gift for the left if it goes through.

I like the current system. It somewhat corrals the area a population center can dominate disenfranchise.

entagor on September 23, 2006 at 2:44 AM

Blatantly unconstitutional as proposed. It violates the 12th and 14th Amendments.

Here’s why.

Point 1. The scheme requires that electors of one state are selected based upon THE RESULTS OF THE POPULAR VOTE IN OTHER STATES. This openly violates the 14th Amendment, specifically, equal protection under the law.

Point 2. This proposal REQUIRES a popular vote inside of California (and any “compact” state) in order to determine the popular vote totals. As long as there is an election, the 14th Amendment requires that the outcome be determined by majority vote. This includes the selection of electors for President.

Point 3. This does NOT preclude ‘proportional’ based electors being selected. The all or none method is method is not “sacred” though it is allowed under Article 1 and the 12th and 14th Amendments. But that is not the issue here. The issue is the possibility that the RESULTS OF A ELECTION BECOME REVERSED BASED UPON RESULTS IN OTHER STATES.

Point 4. While the Constitution, as originally written, does not required that an election by the people to select electors be held, Congress long ago passed laws requiring that electors be chosen in a presidential election. Further, the 15th, 19th and 24th Amendments protect the right of the people to vote for electors in Presidential elections. The relevant part of the US Code that governs presidential elections is in Title 3.

Point 5. Congress certifies the vote of the electoral college. Congress is NOT the servant nor the creature of the state legislatures. Congress is under no obligation to allow electors that do not represent the the voters or accept their results. The likelihood that a such an event would go unchallenged by the losing political party is nill.

To summarize, depriving the voters of a state the choice of HOW their chosen electors in the Electoral College are to vote is illegal and unconstitutional.

georgej on September 23, 2006 at 4:23 AM

On Judicial Review.

The Constitution says:

[Article 3, Section 2, paragraph 2] In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, the supreme Court shall have original jurisdiction. In all the other cases before mentioned, the supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

Congress can limit the scope of the Supreme Court by (1) severability and (2) specifing that a bill is off limits for judicial review, for example.

Ace is right that the Court took it upon itself to power of judicial review in Marbury v. Madison. But that didn’t stop Andrew Jackson from defying the court’s decision in Worcester v. Georgia. Jackson is quoted as saying: “John Marshall has made his decision, now let him enforce it!” Though it is probable that he never actually put it quite that way, though he did disobey the court in point of fact.

georgej on September 23, 2006 at 4:49 AM

Blatantly unconstitutional as proposed. It violates the 12th and 14th Amendments.

I think that is a big part of the idea. Suppose there’s another election where one side wins the popular vote, and the other (would have) won the electoral vote, apart from this “compact”.

Who wins then? The courts will pick the President.

I think that’s largely what the moonbats want – as many avenues to contest and overturn unfavorable election results as possible.

I would like to believe this compact was unconstitutional, but I don’t see how Amendment XIV applies. The only possible relevant section is #2, which says in part:

But when the right to vote at any election for the choice of electors for President and Vice President of the United States […] is denied to any of the male inhabitants of such state, […] or in any way abridged, […] the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

If the compact is ratified, California will not hold an election for Presidential electors. Instead they will hold a “statewide popular vote” for the presidential candidates themselves. As directed by the legislature (through approval of the compact), the election authorities would then certify the electors of the candidates who received the most popular votes nationwide.

And Article I is pretty unequivocal about a legislature’s power to determine which electors are selected.

There would undoubtedly be litigation by the losing side if the election outcome was changed, but it looks like far from an easy argument to make to me (a non-lawyer, but reasonably well read on ConLaw).

It only happens about once every 100 years that the popular vote winner does not win the electoral college, however. So it would likely be awhile before this scam made a difference.

Suppose the compact is brought into force and, optimistically, that the Republican candidate in 2008 wins the popular and would have won the electoral tally without this compact. In that case, California’s GOP electors would still have to be appointed, which might produce a backlash even without affecting the outcome of the election.

But running a close presidential campaign in an atmosphere where you’re not sure whether the winner will be determined by electoral vote (as now) or popular vote (because the compact will undoubtedly be challenged in the courts by someone) sounds like a real nightmare. The first election, at least, after this thing goes into effect but before the legal issues are decided, will be an utter circus.

LagunaDave on September 23, 2006 at 10:29 AM

LagunaDave writes: “I would like to believe this compact was unconstitutional, but I don’t see how Amendment XIV applies.”

Article 1 of the 14th Amendment reads in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Ignoring the results of a presidential election in a state, and substituting electors based upon the results from other states for “Candidate B” is disenfranchising the voters — the majority whom elected the electors for “Candidate A.”

It is (1) denying the voters who voted for “A” equal protection of the law by OVERTURNING their majority on the basis of the results in other states.

(2) It is a clear abridgement of the “privileges or immunities of citizens of the United States,” by tossing their vote out based upon what happens in another state.

The fundamental “privilige” in a Republic is the right to vote for representation.

The 14th Amendment guarantees that the people in each state shall be treated equally, not just in a state, but in all states. Any law that overturns the voters choice in a state based upon the results of the popular vote from other states, is a clear violation of the equal protection clause.

georgej on September 23, 2006 at 4:39 PM

It’s just another attempt to explain why they lost and keep losing. Any constitutional wonks out there? Isn’t this expressly forbidden by the constitution and wouldn’t this effectively change our system of government to a NON-representative Republic?

Soothsayer on September 23, 2006 at 4:41 PM

georgej: I despise the compact, but I don’t see the equal protection argument.

Ignoring the results of a presidential election in a state, and substituting electors based upon the results from other states for “Candidate B” is disenfranchising the voters — the majority whom elected the electors for “Candidate A.”

You are overlooking a subtlety of the procedure here.

There would be no election held for electors, so nobody’s votes for the electors of “Candidate A” would be overturned. The voters would instead be expressing their preference for the Presidential/VP candidates themselves. The election would be fundamentally different, in that the voters are not choosing electors but expressing a preference for a presidental ticket. It is a subtle difference, but an important one.

I agree it violates the spirit of the Constitution, but it is cleverly worded not to violate the letter, unfortunately.

LagunaDave on September 23, 2006 at 8:45 PM

The founding fathers put the Electoral College in place as a safeguard to prevent the huge, rural, uneducated, population from picking the president.

The college members usually cast a vote which matches the will of the voters they represent, however, – and this is the glory and majesty of it all– they are not statutorily bound to do so.

The College is essentially part of a system of checks and balances which helps eliminate a vast but ignorant population from hijacking the election process.

Our forefathers were brilliant and this system, for all the obvious reasons, still has merits today. Like you, they didn’t want their vote to be cancelled out by some Jerry Springer reject who doesn’t follow the issues, or who can’t read the name of the candidates, or figure out how to put a check in the box next to the candidate they want to elect.

Alden Pyle on September 23, 2006 at 10:16 PM

What about the Electors themselves. When we vote for President, we are actually voting for “Electors” who then go to Washington DC and place their vote. What is to prevent a California Elector from defying the California Legislature and voting for the person he was elected to vote for? (I hope that made sense.)

How would California enforce this?

.

GT on September 24, 2006 at 7:28 AM

LagunaDave wrote: “There would be no election held for electors”

Then it cannot be a presidential election.

Article 2, section 1, paragraph 1 says that the state shall appoint electors to select the president, though not specifying how. The president is selected by the electors unless no candidate for president can attain a majority of electors, in which case the House decides. See the Art 2, and the 12th and 20th Amendments for specifics.

However, Amendments 12, 15, 19, 24, and 26 DO say how, and they all guarantee the right of the people to vote for the president. Therefore, as the president is elected by the electoral college, the people are guaranteed the right to select the electors. This latter also comes from Article 4, which guarantees every state a republican form of government.

The 14th Amendment guarantees equal protection under the law and the “privileges or immunities of citizens of the United States.” One of those privileges and immunities is the right to vote and to have equal representation. All of which means that NO STATE can prohibit voting for presidential electors AND that NO STATE can disenfranchise voters by tossing out a candidate’s electors based upon another state’s results.

In other words, there cannot be a presidential election without the people voting for the electors, absent an amendment to the Constitution abolishing the electoral college.

The attempt to fudge it with a compact to award electoral college representation to the LOSING candidate within a state, is unconstitutional.

Congress can approve an amendment to abolish the electoral college and have the people elect the president directly, and send it to the States for ratification. Or 2/3 of the States can call a Constitutional convention to propose such an amendment.

georgej on September 24, 2006 at 7:44 AM

GT wrote:

What about the Electors themselves. When we vote for President, we are actually voting for “Electors” who then go to Washington DC and place their vote. What is to prevent a California Elector from defying the California Legislature and voting for the person he was elected to vote for? (I hope that made sense.)

How would California enforce this?

The premise of the proposal is that a state would send electors based upon the nationwide popular vote and not based upon an election for electors.

As I have noted above, doing such disenfranchises the people of that state because the Constitution guarantees the right of the people to select the electors.

georgej on September 24, 2006 at 7:51 AM

That this type of rule is under consideration explains to me the popularity of Hugo Chavez in some circles. Sad.

austinnelly on September 24, 2006 at 9:40 AM

Doesn’t the Congress have to approve inerstate compacts? I can’t see the current Congress concurring with this.

Of course, things may change in November.

Flar on September 25, 2006 at 3:30 AM