California Electoral Vote Initiative

Jonathan Alter looks at the effort in California to place a question on teh ballot that would change the state's electoral vote allocation from winner-take-all to proportional.

Our way of electing presidents has always been fer-tile ground for mischief. But there's sensible mischief—toying with existing laws and the Constitution to reflect popular will—and then there's the other kind, which tries to rig admission to the Electoral College for strictly partisan purposes. Mischief-makers in California (Republicans) and North Carolina (Democrats) are at work on changes that would subvert the system for momentary advantage and—in ways the political world is only beginning to understand—dramatically increase the odds that a Republican will be elected president in 2008.

Gee, no indication there of how Alter feels about the issue.

The point of the ballot question to change the allocation is of course political--every ballot question is, to some extent, political in nature--even the so-called benign ones. The fact that some Republican lawyer in California wants to get an advantage for his party in the state is no more surprising than a Republican voting for George Bush.

Instead of laboring in vain to turn California Red, a clever lawyer for the state Republican Party thought of a gimmicky shortcut. Thomas Hiltachk, who specializes in ballot referenda that try to fool people in the titles and fine print, is sponsoring a ballot initiative for the June 3, 2008, California primary (which now falls four months after the state's presidential primary). The Presidential Election Reform Act would award the state's electoral votes based on who wins each congressional district. Had this idea been in effect in 2004, Bush would have won 22 electoral votes from California, about the same number awarded the winners of states like Illinois or Pennsylvania. In practical terms, adopting the initiative would mean that the Democratic candidate would likely have to win both Ohio and Florida in 2008 (instead of one or the other) to be elected.

Using the law for electoral advantage is what election lawyers are paid to do. The title of this ballot question is not false advertising, the ballot question is approved would re-form the California electoral vote allocation system into a different format--the very definition of reform.

Of course this is "bad reform" because it is not good government, it is for "partisan purposes." Of course, what Alter and others like him forget is that they can do the same exact thing in vote rich Republican states, like Texas. In Republican North Carolina, a effort is underway in the legislature to make this exact change, only it will benefit Democrats. Alter addresses North Carolina thusly:

The monkey business underway this month in North Carolina is just as egregious—though with only three or four electoral votes at stake, probably less consequential. Democrats, who usually lose the state in presidential contests but control the legislature and the governor's mansion, make no secret of their desire to win partisan advantage by going to the congressional-district formula.

At least in North Carolina it's clearly constitutional. Article II, Section I of the U.S. Constitution stipulates that the selection of electors is up to state legislatures "in such manner as the Legislature thereof may direct." When power is delegated to the electorate in referenda, the legal authority gets fuzzy; the Constitution, of course, supersedes state law. In any event, the Hiltachk referendum will face a challenge in court.

I don't know about Alter's legal interpretation, the state legislature and the California Constitution permit a pretty open ballot question process and other propositions of questionable nature have survived court challenge.

Look, no one doubts that the electoral college is confusing and quaint, but it does provide a modicum of protection against the vagaries of popular vote. The current winner take all in California and other states exploits and magnifies what may actually be small partisan advantages.

But using the law to change the law for partisan reasons is no more shady or underhanded when undertaken by one party or another. It is politics and it is a bloodport.