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Tuesday, October 09, 2007

The Article II Argument

Although Electoral College Reform is dead in California, Peter Smith at the Co-Op tries to argue that the initiative to re-allocate electoral votes would have been unconstitutional.  He offers the Article II argument, expanding on Vik Amar's early spotting of the issue:

Article II, section 1, clause 2 of the Constitution provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in Congress.” The proposed measure in California will be decided not by the state legislature, but rather by the voters in a statewide ballot initiative. This end-run around the legislature—which, proponents of the measure obviously realize, is controlled by Democrats unwilling to sign away their party’s hopes in the next presidential election—seems flatly inconsistent with the language of Article II.

Read his whole post because it does a good job of making the case.  Here's my provisional reply:

I'm skeptical of the constitutional argument: Since Pacific States, the Court has conceded that it is up to Congress to decide if a state's use of the initiative and/or referendum takes too much power away from the state legislature. If the state legislature reserves the initiative power to the people -- as California's does -- it is hard to see why the people aren't effectively acting as the state legislature when they engage in passing a law controlling electoral vote distribution. As Stevens suggested in Bush v Gore, the Legislature has to be taken as it is found, with all the internal limitations on its power in its own state constitution. In theory, the state legislature could try to circumvent the hypothetical initiative's direction by certifying a different electoral distribution. But then it would be for Congress, not the Court, to decide which electoral votes to count. At least that is how Pacific States would suggest that the Court should handle the issue where it to arise.

The Article V parity argument is [the]  strongest one [for there is caselaw that citizens can't, by initiative, force a convention or a ratification] -- but there may be reasons to distinguish the two provisions. The easiest way is the use of the word "shall" in Article V -- and the word "may" (in connection with the word Legislature) in Article II.  One could make structural arguments too -- but the may/shall distinction is the cleanest.

UPDATE:  For more -- supportive of the lack of parity between Art II and Art V -- see this paper by Seth Barrett Tillman, pp. 925-27.   Here's the cite: Seth Barrett Tillman,  Betwixt Principle and Practice: Tara Ross's Defense of the Electoral College, 1 N.Y.U. J. of Law & Liberty 922 (2005) (Reviewing Tara Ross, Enlightened Democracy: The Case for the Electoral College (World Ahead Publishing 2004)). 

Posted by Ethan Leib on October 9, 2007 at 01:19 PM in Current Affairs | Permalink


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