Monday, April 4, 2011

How to amend the Constitution without amending the Constitution

The San Francisco Chronicle has an interesting story today about a multi-state effort to change the way we elect the president.

Constitutionally, the electoral college chooses the president. This reform would not change that. It would alter the way most states choose their electors to the electoral college, and by doing so ensure that the winner of the popular vote would always be the winner of the electoral college vote. In effect, it would render the electoral college meaningless.

If AB459 is adopted, the 55 electors in California would no longer be determined by the popular vote in California. They would not be determined by the vote in Congressional districts or other districts. Rather, they would be given to the party whose presidential candidate won the most popular votes in the 50 states plus D.C.

This action would not be done in California alone. AB459 will only take effect if a collection of states with 270 or more electoral votes combined goes along with it. Once that happens, every state in this coalition would hand all of their electoral college votes to the plurality or majority winner of the popular presidential vote.

In effect, this is an effort to take power away from the handful of states whose popular vote for president tends to be close. New Mexico and Iowa, for example, get a lot of attention from the Democratic and Republican nominees, because the popular presidential vote in those states tends to be close. They are the swing states. A state like Texas gets no attention, because it will surely go to the Republican. Likewise, no one campaigns in California, because the Democrat will win no matter what.

But if California and Texas promise (by law) to award all of their electoral college votes to the winner of the national popular vote (instead of each state's popular vote), then every marginal vote in California and Texas will count.

In 2000, Al Gore won the popular vote but lost the electoral college vote. Had the AB459 system been in place in states which compose a majority of the electoral college, all of the Texas electors would have been Democrats and Gore would have been elected president.

AB459, the legislation that (Assemblyman Jerry Hill, a San Mateo Democrat) supports, would change California's system. He said states that pass similar legislation would agree through a compact to award all their votes to the presidential candidate who wins the popular vote nationwide. The laws wouldn't go into effect until states representing 270 electoral votes, a majority and the number needed to elect a president, agree to the compact.

Illinois, Hawaii, New Jersey and Maryland - with a total of 73 electoral votes - have passed the legislation proposed by National Popular Vote, a nonprofit based in Silicon Valley and founded by Stanford Professor John Koza, who came up with the idea.

I suspect if this system takes effect in enough states, the attorneys general in the so-called swing states will challenge its constitutionality. This compact won't explicitly get rid of the electoral college. But it will implicitly make it irrelevant.

Two-thirds of the time and funding invested by presidential candidates' campaigns in 2008 was spent in a handful of swing states including Iowa, New Hampshire and South Carolina, said Hill, while strongly Democratic California and other states where the outcome was considered predictable were left out of the mix.

Republican presidential candidate "John McCain and (Democrat) Barack Obama in 2008 both raised $150 million from California - and they spent together less than $30,000 here in the general election," Hill said, a fraction of 1 percent of their total advertising budget.

That $30,000 figure is telling. That is less money than Don Saylor and his buddies in the firefighters' union spent winning Saylor's seat on the Davis City Council.

Popular-vote supporters intend to change that in time for the 2012 presidential elections, guaranteeing that candidates would spend more time, resources and effort wooing states around the country rather than concentrating on swing states.

One thing to note is that the effort in California is bipartisan. Both Democrats and Republicans, here, understand that the electoral college math forces national candidates to ignore us, because we are now such an overwhelmingly blue state. In fact, marginal voters, Democratic-leaning or Republican-leaning, really have no reason to vote for president under the current system.

In California, former state Senate GOP Leader Jim Brulte and former Republican Rep. Tom Campbell already have joined the popular-vote effort. A 2008 Public Policy Institute of California poll showed 70 percent of likely voters support the idea.

1 comment:

toto said...

state-by-state winner-take-all laws to award electoral college votes, are an example of state laws eventually enacted by states, using their exclusive power to do so, AFTER the Founding Fathers wrote the Constitution, Now our current system can be changed by state laws again.

After days of debating and rejecting possible methods for selecting the President, the Founding Fathers at the Constitutional Convention left the entire matter to the states by only saying in the U.S. Constitution about presidential elections "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . ." That’s all the Constitution says about what we now call the Electoral College. The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as "plenary" and "exclusive."

The constitution does not prohibit any of the methods that were debated and rejected. Indeed, a majority of the states appointed their presidential electors using two of the rejected methods in the nation’s first presidential election in 1789 (i.e., appointment by the legislature and by the governor and his cabinet). Presidential electors were appointed by state legislatures for almost a century.

Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all method) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation's first presidential election.

In 1789, in the nation's first election, the people had no vote for President in most states, only men who owned a substantial amount of property could vote, and only three states used the state-by-state winner-take-all method to award electoral votes.

The winner-take-all method is not entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The current 48 state-by-state winner-take-all method (i.e., awarding all of a state's electoral votes to the candidate who receives the most popular votes in a particular state) is not mentioned in the U.S. Constitution, the debates of the Constitutional Convention, or the Federalist Papers. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all method.

The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding the state's electoral votes.

As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all method is used by 48 of the 50 states. States can, and frequently have, changed their method of awarding electoral votes over the years.