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Saturday, August 18, 2007

On California's Effort to Move Away From Winner-Take-All

Two important articles have appeared trying to analyze the effort underway in California to change electoral vote distribution from winner-take-all to a more "proportional" distribution.  Vik Amar takes up the issue in a Findlaw column yesterday -- and Hendrik Hertzberg covers the beat at The New Yorker.  Both articles attempt to make a principled case for why this move of reform is misguided.

Ultimately, I'm underwhelmed with any principled arguments these authors try to make.  In the final analysis, there is really only one good reason to oppose these efforts: partisan considerations.  It is undoubtedly true that in California, the effort will benefit Republicans (now and for the foreseeable future).  If you don't like that outcome, you should probably oppose the measure.  Although the authors are quick to point out that Democratic efforts to accomplish the same move away from winner-take-all in North Carolina is just as problematic from their standpoint of "principle," it is no accident that their articles focus on the California case.  One might assume these authors would vote for the measure in North Carolina, where it would help Democrats get electoral votes they wouldn't otherwise be able to capture.  (To be clear: I don't really have a basis for that conjecture -- just my gut.)  The principles just aren't fully clear -- and are very hard to disentangle from partisan preferences.

After the jump, I'll say a few things about Amar's individual arguments.  But, most generally, my provisional view is that this political issue is best left discussed in a nakedly political way.  The standpoint of principle is hard to take seriously -- and, in any case, very possibly cuts in favor of the reform, the intentions of the supporters, notwithstanding.

A few specific points about Amar's arguments. 

First, his claim that changing the electoral rules by initiative might violate Article II's requirement that Electoral College votes be allocated by state legislatures.  Sure, perhaps this a reading the current Court might embrace based on Bush v. Gore.  But if the reform helps Republicans, that isn't a likely result.  More, Bush v. Gore's status as a "for-this-day-only" case makes it unlikely to serve as good precedent.  Third, when voters are acting through the initiative, they are acting as legislatures (at least that's how the California Constitution sees it) -- and there is approximately a zero percent chance that the Court will rule the initiative process itself unconstitutional.  Finally, whatever you think about what the Court might do based on Bush v. Gore, you still need an argument of principle that Bush v. Gore is right on this point, something I have the sneaking suspicion Amar doesn't quite believe.

Amar's second point is part self-consciously partisan (perfectly appropriate, I think).  But then he returns to principle: "One cardinal rule about Presidential electoral reform today ought to be that it must not predictably and intentionally disadvantage one party over the other."  As a rule of principle in electoral reform, that can't be a guiding light.  All reform will have some predictable results -- and it is not reasonable to expect any political mobilization to occur unless a party sees that it has something to gain.  In any case, if the demographics or ideological commitments of California voters change over time, there may be long-term unintended consequences of helping the Democrats.  True, there may be something particularly squalid about this particular group's motivations (and dishonesty) in the California case.  But the reform still has to be judged on its own merit if one is taking the high road of principle, not based upon who happens to support it.  It is more fair to allocate votes in a non-winner-take-all distribution?

Here Amar also has an argument.  It amounts to highlighting that most congressional districts (the basis of how the proposed electoral votes would be distributed) are themselves essentially locked up for one party or the other -- so the proposal will "oppress" the minority in any given district just as the minority in California as a state is "oppressed" through the current system.  So whatever "equal representation" claim the initiative supporters make has to be counterbalanced by the indisputable point that individual districts are just as much locked up for one party or other as the state is more generally.

There is something to the last argument -- but it is flawed because it addresses itself to the rhetoric of the intitiative supporters rather than the reality that no "equal representation" is perfect and we have to compare relative second-best options.  In short, the choice isn't between Amar's proposal for a national popular election and the electoral college; the choice is between a winner-take-all electoral college vote distribution and more fine-grained methods of distribution.   [Update: On my first reading, I missed the parenthetical where Amar notes that the legislature is actively considering the national popular plan -- through the conditional state compact method-- so there are really three options on the table.  I'm still skeptical that that method is preferable on principle to the initiative proposal for reasons I hope to explore in a second post.]

This post is getting long, so maybe I'll do a second one on why principle might recommend going with the initiative proposal.  Still, whatever principle tells us here, I think is ultimately weaker than partisan considerations will be because the execution of the principles is sub-optimal.

Posted by Ethan Leib on August 18, 2007 at 10:05 PM in Article Spotlight | Permalink


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Of course, Markham is hardly alone in such matters. In a post considering the far more weighty (but analytically similar) issue of a proposal in California to split up that state's block vote, Ethan Leib could think of ... [Read More]

Tracked on Aug 23, 2007 1:05:14 PM


With respect, I think you're too quick to dismiss the Art II Elector Clause argument. Merits aside, Scalia and Thomas seem to actually believe the in the Bush v. Gore concurrence that they signed onto--they're probably not in the "for-this-day-only" school (or, if they are, they're in it with respect to the Equal Protection argument in Bush v. Gore). So I count 2 votes for the Dems right there. Getting 3 more should be at least doable, if not in the bag.

Posted by: Alex | Aug 21, 2007 3:35:58 PM

Amar's argument to partisan Democrats is 100% persuasive.

His argument to those who want to increase the importance of California's role in presidential elections is unpersuasive because he switches metrics. He argues that the presidential voting in each district will not be competitive because the House races in each district aren't competitive. But why use a proxy to measure the key facts? Aren't presidential votes tallied by district? If so, Amar should be showing us with direct evidence that presidential voting in each district is so lop-sided (i.e., as lop-sided as House votes) that presidential candidates won't visit California, make promises to Californians, etc. That's highly implausible.

Posted by: calivoter | Aug 20, 2007 1:42:07 PM

"One might assume these authors would vote for the measure in North Carolina, where it would help Democrats get electoral votes they wouldn't otherwise be able to capture. (To be clear: I don't really have a basis for that conjecture -- just my gut.)"

I don't think that's fair. The focus is on California because its the biggest catch in the nation. Hertzberg observes:

"Last week, the Democratic-controlled legislature of North Carolina, a state that has gone Republican in every Presidential election since 1976, enthusiastically took up a bill to do the same mischief as the California initiative. The grab would be smaller—it would appropriate perhaps three or four of North Carolina’s fifteen electoral votes for the Democrats—but the hands would be just as dirty."

When you say "the hands would be just as dirty" it doesn't sound like you're happy about it, right?

Posted by: Bart Motes | Aug 20, 2007 1:25:17 PM

Wow, that surely is the worst misspelling of "conservatism" that I've ever seen.

Posted by: Adam W | Aug 20, 2007 9:00:19 AM

It took great patience to continue to read on after this bland assertion: "In the final analysis, there is really only one good reason to oppose these efforts: partisan considerations."

Really? I'd say that opposition to the reform (in California, in North Carolina, or anywhere else) is perfectly justified by conservistim or prudence: i.e., opposition to abrupt changes in the method by which we elect our president.

State-based election, enshrined in the original constitution, has served us well for the past couple of hundred years. Encouraging states to move closer to a nationwide popular-vote election will only cause candidates to focus more on big cities and less on non-urban areas. I, for one, think that that would be a horrifying development. To build off of William Buckley famous dictum, I'd rather be governed by the first 2000 names in the Dubuque, Iowa phone book than by the first 2000 names in the Boston edition.

Posted by: Adam W | Aug 20, 2007 8:55:49 AM

One reason the proposal looks like a partisan grab is that California is going it alone. Other state proposals to reform how its electors are chosen or vote do not take effect until some critical mass of states join in. Here, you have one state changing its rules (in a way that, in the short term only benefits one party) without waiting for other states to make similar changes that might benefit the other party.

Posted by: Howard Wasserman | Aug 18, 2007 1:29:14 PM

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