Matthew Yglesias (August 30, 2007) - California Referendum (Politics)

Adopted nationwide this might be a step in the right direction

If we're worried about the way in which our electoral system writes off large portions of the US population (which we probably should be), then adopting this type of plan nationwide is a pretty terrible idea.

Those 19 or so "swing states" immediately morph into the small handful of "swing congressional districts" which have survived gerrymander, throwing the election into the hands of an even smaller portion of the US population

Posted by Dave White | August 30, 2007 12:51 AM

with various bloggers that I participated in

Too much information.

Posted by jerry | August 30, 2007 1:13 AM

Slate released a podcast on the issue earlier this week (or late last week). It is worth checking out.

Posted by Syd B | August 30, 2007 1:27 AM

In an ordinary year - or a Republican boom year like 1994 - this one might stand a chance. In 2008 it will be portrayed as a Repiglican attempt to waste more Americans in Iraq, and it will lose by a huge margin and possibly bring down a Repiglican congresspig or two along with it.

I'm amazed that Repiglicans still are in denial about just how huge the war will be during the 2008 election. But they're really, really stupid, and really, really arrogant, so maybe I shouldn't be.

Posted by MoeLarryAndJesus | August 30, 2007 1:31 AM

Fair Election Reform is the insider Sacramento org. fighting this thing. The grassroots organization that's been mobilizing against it is the California Courage Campaign. There's a petition you can sign here, and another action called Educate Arnold. See, when our supposedly post-partisan Governor was asked about this, he dodged by saying he hadn't read it yet. It's only 3 pages long. So if you click here, you can send the text of the initiative to Arnold's office directly by fax. On Thursday we're going to be hand-delivering the petitions collected to the Governor's office in Sacramento, as well.

Posted by dday | August 30, 2007 1:43 AM

An Aug. 21 latest Field poll shows it passing by 47-35. However, there's a big undecided vote, and California voters usually develop cold feet at the last minute about political "reform" measures (including the real ones). So one can hope that they'll chicken out on this one too, especially after the likely avalanche of negative editorials.

Of course, anyone seriously hoping for intelligent votes on statewide referenda -- or who actually thinks that any democracy can ever be made to work better than barely tolerably -- is cordially advised to read that Aug. 2001 Gallup poll showing that 1/3 of Americans (including half of those under 30) think we were on NORTH Vietnam's side in the Vietnam War.

Posted by BruceMoomaw | August 30, 2007 1:45 AM

BruceMoomaw writes: "Of course, anyone seriously hoping for intelligent votes on statewide referenda -- or who actually thinks that any democracy can ever be made to work better than barely tolerably -- is cordially advised to read that Aug. 2001 Gallup poll showing that 1/3 of Americans (including half of those under 30) think we were on NORTH Vietnam's side in the Vietnam War."

Turned out we were.

Posted by MoeLarryAndJesus | August 30, 2007 2:07 AM

Yawn.

If Schwarzenegger couldn't push through a good redistricting referendum in 2005, why do you think Republicans have any chance with this initiative in 2008?

Posted by Steve Sailer | August 30, 2007 3:07 AM

Article II, Section 1: Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors,...

A change by popular referendum (absent and entirely without legislative direction) would clearly be unconstitutional.

Posted by Steve in Sacto | August 30, 2007 3:46 AM

Steve in Sacto: How would this be unconstitutional? The courts have usually construed popular referendums to be the equivalent of legislative action. If the referendum passes, it would be the equivalent of the legislature passing the law. As your constitution quote makes clear, the legislature would have the right to pass such a law, and therefore the populace would have that same right. There's no constitutionality issue here.

But I think Steve Sailor is right (rare as that is), it won't pass. The recent trend in California has been to reject referendums. As a Coloradan, I can understand why. I'm sick of referendums, too. They usually create bad law, even when they are well- intentioned. And they are rarely well- intentioned. But some have argued that it might pass because of it being an off- timed election. I doubt it. Californians have been dealing with the referendum process for a long time now. They will show up at the polls if they need to. And they will need to.

Posted by fostert | August 30, 2007 4:26 AM

I love the way Matt immediately labels something he dislikes as a "scam". Poor policy, perhaps. A bad idea, maybe. But a scam?

If this is a scam, then the entire initiative process is a scam. I'd love to hear the left try and figure out how to do that.

Posted by James Robertson | August 30, 2007 6:06 AM

The scary thing is that the GOP can now win only by cheating and subverting the electoral process, as with this iniative. They will keep at it.

Posted by bob h | August 30, 2007 7:28 AM

Adopted nationwide this might be a step in the right direction

It just wouldn't. There's no reason to think this would better reflect the popular vote total than the Electoral College. I've seen someone say that it would've turned the close EC results of 2000 and 2004 into GOP landslides; which makes sense, because it has bigger effects in larger states and no effect at all on the smallest states, and these states broadly tend to vote opposite ways.

Posted by Matt Weiner | August 30, 2007 7:45 AM

Re James Robertson

This referendum is nothing more than a Rethuglican attempt to steal the 2008 election. The Rethuglican party is well aware that the Democrats can't win without all 55 of Californias' electoral votes.

Posted by SLC | August 30, 2007 8:03 AM

If this is a scam, then the entire initiative process is a scam. I'd love to hear the left try and figure out how to do that.

Why should we try? This unrepentant Libertarian Marxist, for one, feels we should eliminate all legislatures and govern entirely by initiatives. OK, Mom, I'll look for a job as soon as I finish typing this comment. Let the chant begin: The People, Initiated, Will Never Be Defeatiated!

Posted by James Gary | August 30, 2007 9:14 AM

Adopted nationwide this might be a step in the right direction

No, it won't. As Matt Weiner notes, it gives even greater weight to smaller states, which are already in an advantageous position in the electoral college. As shitty as the EC is, awarding NY and CA's electoral votes en bloc goes some way to compensate for the extra votes that smaller states deliver courtesy of their two senators and smaller congressional districts.

Now, if it were accompanied by a) abolishing the Senate votes in the EC; b) enlarging the House by apportioning districts on the basis of the least-populous state; c) prohibiting gerrymandering, you might have an argument. Use Wyoming as your base, have 600 in the House, give California 68 of those representatives.

Poor policy, perhaps. A bad idea, maybe. But a scam?

It's a scam because it's being sold under false pretences: the Faux News report that characterised in in terms of 'pro-reform' and 'anti-reform' without noting the partisan nature of the proposers is a case in point.

Posted by pseudonymous in nc | August 30, 2007 10:23 AM

The Rethuglican party is well aware that the Democrats can't win without all 55 of Californias' electoral votes.

For the record, I think this is vastly overstated. There are plenty of scenarios where the Democrats win by a conclusive margin. That doesn't change the fact that it's an uneven playing field, of course.

Posted by Steve | August 30, 2007 11:04 AM

I love the way Matt immediately labels something he dislikes as a "scam". Poor policy, perhaps. A bad idea, maybe. But a scam?

It's a scam when partisans lobby to change the law in states where it's to their political advantage and oppose changing the law in states where it's to their political disadvantage.

The plan is simple - take 100% of the electoral votes in states where your party is favored, add 30-40% of the electoral votes in states where your party is likely to lose. The end result is a system that guarantees your nominee the presidency even if he loses the popular vote by 20 or 30 million.

That's called a scam.

The fact that it's even possible is evidence we need to dump the electoral college and switch to a direct vote.

Posted by Jinchi | August 30, 2007 11:20 AM

It's a scam because it's being sold under false pretences: the Faux News report that characterised in in terms of 'pro-reform' and 'anti-reform' without noting the partisan nature of the proposers is a case in point.

How does it make it a scam? All electoral reforms are going to impact the relative success of the political parties, which predictably trend to suport the ones that benefit them. And while I don't doubt that Fox News would avoid pointing out that Republican support is at least partially motivated by the fact that it will help them get some electors out of CA, that doesn't change the fact that it is a legitimate way for a state to allocate is electors and the proposal is clear about how the allocation would be changed and it's not exactly complicated to deduce what the impact would be on electoral results. It may be a bad idea (I think it is for the reasons pointed out by other commenters above), but there is no basis for calling it a scam.

Posted by MattXIV | August 30, 2007 11:23 AM

The courts have usually construed popular referendums to be the equivalent of legislative action.

fostert,
While this may be generally true, I could easily see courts responding differently when construing a specific requirement in the Constitution for action by "the Legislature" of a state. (I could see courts going the other way as well.) Do you (or anyone) have any authority on the specific question of whether a referendum counts as action by "the Legislature" in such situations?

Posted by Glenn | August 30, 2007 11:25 AM

Actually, I did some googling and found this very amusing article from the Heritage Foundation from 2004 when (apparently) an attempt to effect a similar change in Colorado by referendum was being bandied about.

http://www.heritage.org/Press/Commentary/ed102604b.cfm

Heritage was vehemently against such a change (which would have given half of CO's electoral votes to the Dems) and cites Supreme Court case law on how it is unconstitutional for the very reason that Steve in Sacto, above, says -- because when the Constitution says "the Legislature," it means, "the Legislature." I haven't read the cases cited to see if Heritage knows what it's talking about.

But I guess we can expect Heritage to come out strongly against the CA initiative as well, right? Heh.

Posted by Glenn | August 30, 2007 11:33 AM

The best defense is a good offense

I would think that the best strategy for fighting this thing would be to put up a competing initiative that awards all of the state's EC votes to whoever wins the popular vote nationwide (but only if states representing >50% of the EC vote do the same). Then the opposition could put up another proposition that splits the EC votes only if other states representing >50% of the EC vote do the same.

One good effect this would have would be to get the voters thinking about the practical consequences of all three initiatives, which is the best way to counteract the immediate appeal of the superficial "fairness" of splitting the state's EC vote to let the losing party get some of it. Another would be to bring to mind why the other states have all (though two small states have since gone back on this) instituted a winner-takes-all rule for their EC votes -- it enhances their state's impact on the outcome. The "only if >50% of other states" provisions in the two Dem initiatives could be presented as a refusal for California to submit to unilateral disarmament in competing with the other states to determine who becomes President.

Secondarily, if inconsistent initiatives all win, none of them could be implemented before the contradictions could be sorted out, probably by another initiative. This would give time for cooler heads to prevail.

Of course, this line of thought would be invalid if it's too late to propose new initiatives for this year.

Posted by Glen Tomkins | August 30, 2007 12:03 PM

"Do you (or anyone) have any authority on the specific question of whether a referendum counts as action by "the Legislature" in such situations?"

Short answer: no.

I'm not a constitutional scholar, but I don't think it really makes a difference. The courts seem to be allowing the states to define "legislature" for themselves. Hopefully, an actual legal scholar will chime in and give a more detailed answer. I do know that when Colorado's Amendment 1 was struck down, the Supreme's argument did not rely on the issue of whether a referendum was an invalid method of restricting civil rights. In fact, those supporting the amendment argued that referendums somehow carried EXTRA legal weight beyond that of mere legislative action. The Supreme's issue was solely that such rights could not be restricted by any entity. It's possible that election law might be interpreted differently, but I'm unaware of any such precedent. It's also possible that the Supreme Court might ignore precedent and make a judgement solely on politics, but if that's the case, the current court would rule in favor of the Republicans.

Posted by fostert | August 30, 2007 12:59 PM

This law professor suggests that the logic of the Rehnquist/Scalia/Thomas concurrence to Bush v. Gore should lead the Court to conclude that the power to allocate electoral votes is determined by the legislature, not by a referendum. But of course that was a judgment based on politics, and the justices who signed on to it surely would rule the other way in the present circumstances.

Posted by Matt Weiner | August 30, 2007 1:31 PM

Having now read the cases cited by the Heritage Foundation that I referred to above, I think their conclusion is wrong and that fostert's suggestion is correct. In particular, Smiley v. Holm from 1932 seems to say that while "the Legislature" means exactly that for certain non-lawmaking purposes (such as consenting to constitutional amendments, or voting for Senators pre the 17th Amend.), in those cases where it means "the Legislature" sitting as a lawmaking body, then the state can, through its own constitutional processes, substitute lawmaking by referendum for lawmaking by the actual Legislature.

I think the reference to "The Legislature" here is clearly lawmaking -- i.e., it is the Legislature's role to lay down the "manner" of choosing electors. So, I'd have to say that where a state has the power to legislate by referendum, like CA does, that probably suffices.

Vik Amar's reference to the Rehnquist concurrence in Bush v. Gore is inapposite -- first, because it only got 3 votes and so isn't law; and second, because the issue there was court action vs. the Legislature. The courts of Florida were not even conceivably acting in a legislative role.

Posted by Glenn | August 30, 2007 1:45 PM

Bruce Moomaw: Aug. 2001 Gallup poll showing that 1/3 of Americans (including half of those under 30) think we were on NORTH Vietnam's side in the Vietnam War

Huh. So we have to do the teach-ins all over again?

Or has the Iraq debacle (and/or the spike of Viet Nam "discussion" during the 2004 campaign) done anything to improve the under-30 group's grasp of the relevant history?

Posted by Nell | August 30, 2007 2:01 PM

Steve in Sacto is correct that under McPherson v. Blacker, this initiative is unconstitutional. (Of course, McPherson is wrongly decided, but it was also unanimously reaffirmed in 2000 in Bush v. Palm Beach County, so it is clearly good law.)

That said, I think Democrats in Washington and the rest of the country who don't like this initiative should give some thought to why it is that many Californians, including many Democrats, would want to do this. And believe me, even having a few competitive congressional districts would be better than the situation now, where presidential candidates don't have to care about California one iota.

Posted by Dilan Esper | August 30, 2007 2:13 PM

Matt Weiner's link is a good read, but it doesn't really address the issue of referendum. Bush v Gore argued that the courts could not interfere with the legislature. It said nothing about referendum and it certainly did not address the issue of whether a referendum is equivalent to legislative action. This is important, because if legislative actions and referendums are equivalent, then it would be difficult to argue that legislature is being interfered with because the referendum process IS the legislature. I would also add that Bush v Gore was a constitutional abomination and is unlikely to be used for precedent.

Posted by fostert | August 30, 2007 2:26 PM

fostert:

Bush v. Palm Beach County (the first Bush case) holds that only the state legislature can determine the method of appointing electors, and the state supreme court AND the state constitution (not having enacted by the legislature) could have nothing to do with it. Bush reaffirmed McPherson v. Blacker, which had made a similar holding 120 years earlier.

So a state, by its constitution, cannot delegate this role to any entity other than the legislature. I can get into a long discussion as to why this is actually wrong, but suffice to say, this is the law, and it clearly applies to voter initatives too.

Posted by Dilan Esper | August 30, 2007 3:20 PM

Dilan, I have to respectfully disagree with your reading of Bush v. Palm Beach. The Court there suggested (wasn't really a holding) that the Florida constitution could not validly "circumscribe the legislative power," i.e., by substantive limitations on the "manner" in which electors shall be appointed (e.g., in that case, by the implied limits of a right to suffrage). Neither Bush nor, as I see it, McPherson, said anything about whether that "legislative power" may be validly exercised by the people via referendum. And as I said above, I think the Smiley v. Holt case from 1932 suggests that it can, although it's not beyond doubt by any means.

Posted by Glenn | August 30, 2007 4:31 PM

Glenn:

I don't doubt that the legislative power may be validly exercised by referendum. Nobody thinks that referenda are unconstitutional because they don't guarantee a republican form of government, for instance.

But Bush v. Palm Beach holds that with respect to this special Article II power relating to presidential electors, it's different. The Florida Constitution could have no say over the matter, and the Florida Supreme Court could not do anything more than apply the law passed by the legislature as it was at the time of the election. In other words, uncontroversial governmental powers that are normally considered perfectly consistent with a republican form of government cannot be used in this instance, because Article II does not say "as the state's laws may direct" but instead grants the power specifically to the state legislature.

Now, as I said before, I happen to think that this is all BS. But that's what the court held; it was very reductive about the term "legislature" and was unanimous in its holding. No way the California initiative is constitutional under this doctrine.

Posted by Dilan Esper | August 30, 2007 5:08 PM

I would also add that Bush v Gore was a constitutional abomination and is unlikely to be used for precedent.

Agreed, although it's not because it's an abomination that it's unlikely to be used as precedent. [Which was all I was trying to say with the link, really.]

Posted by Matt Weiner | August 30, 2007 5:09 PM

Smiley v. Holt dealt with questions arising from Article I w/r/t the Legislature's role in prescribing the "The times, places and manner of holding elections for senators and representatives,...," and is not germaine. Justice Hughes in Smiley wrote:

"Wherever the term 'legislature' is used in the Constitution, it is necessary to consider the nature of the particular action in view. The primary question now before the Court is whether the function contemplated by article 1, 4, is that of making laws." (Emphasis added)

Smiley held that directing the times, places and manner of holding elections was "lawmaking" because it necessarily requires enactment of penalties for non-compliance. (It should be noted that article 1, 4 also provides a law making role the Congress.)

The question here is what is 'the nature of the particular action' of the Legislature under Article II, Section 1. Since the power is clearly plenary it mustn't necessarily be "lawmaking" -- the Legislature could theoretically vest absolute appointment power in a single individual; It could theoretically decide to appoint Electors itself. Neither of these actions would be (nor require) "lawmaking."

I'm not a lawyer, but that's my lay reading of why Smiley is off point and not controlling on this issue.

Posted by Steve in Sacto | August 30, 2007 5:43 PM

Secondarily, if inconsistent initiatives all win, none of them could be implemented before the contradictions could be sorted out, probably by another initiative. This would give time for cooler heads to prevail.

No. On numerous occasions we've had more than one initiative addressing a particular issue on the ballot, and if two were to pass, the one with the most votes wins.

Posted by Adam Villani | August 30, 2007 5:49 PM

The best place to learn about what's wrong with this electoral plot is over at FairVote. There's a new report on the congressional district method and why it fails the voters on so many levels. See the press release here, and follow the links to the report:

http://www.fairvote.org/?page=27&pressmode=showspecific&showarticle=164

Posted by Paul | August 31, 2007 9:35 AM

I am an independent. As a Californian from a rural area, I do despise the fact that our voices are trumped by the socialists in the urban areas of California. However, I do support the electoral college concept. I think it's a bad idea to do away with it through this back door deal, and in the end such an initiative would likely not hold up under scrutiny in court. You can always find a judge (eventually)to agree with your positioin; so even should the initiative become law, I am certain it would not effect this upcoming Presidential election - someone always sues (can't have 'the people' deciding things).

The best answer to the socialist tyranny of California, is to split the State. VAST sections of California DO NOT vote blue. These areas are larger than many other states. It's also the direct, honest and legal way to do it.

Reality is (sadly) the state will not be split, as it requires the votes from our slaveholders in the large metro areas of california to give us our freedom.

There are 58 Counties, 35 voted Red, though we have no voice.

Regards,
Jose A. Garcia
Redding ~ Superior California

Posted by Jose A. Garcia | September 5, 2007 11:03 PM

California Referendum

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