Thursday, September 13, 2007

Unconstitutional dirty tricks

According to Doug Kendall at Slate, the Presidential Election Reform Act (aka: The Dirty Tricks Initiative) is unconstitutional.

The U.S. Constitution prohibits a ballot measure that would trump a state legislature's chosen method of appointing electors. In Article II, Section 1, the Constitution declares that electors shall be appointed by states "in such manner as the Legislature thereof may direct." That's legislature. California's could scrap its current winner-take-all approach and adopt a district-by-district system for allocating electors (as only Maine and Nebraska currently do). But the voters—whom the initiative supporters have turned to because they don't have the support of the Democratic-controlled legislature—cannot do this on their own.

It can be said that the legislature has given the voters that authority by legislating the initiative process, but I don't know about that. That's an awfully broad interpretation of "legislature".

Legislature = all eligible voters. I think not.

At any rate, even if this does manage to get on the ballot and pass, I imagine that it would be tied up in court beyond the November election. Yet another reason why I think the broader intent of this thing is to cause the tearing of hair and gnashing of teeth, and to force Democrats to spend time and money.

That's why I'd like to nip this in the bud now, and hopefully people won't sign the petition to even get it as far as the June ballot. It's a loser's game.

If we want to allocate electoral college votes into smaller units like congressional districts or move to "one person, one vote", we need to do it as a nation. Not piecemeal. When it's done state by state, it just games the system, and can make the outcome of presidential elections a foregone conclusion.

Really now! Like it or not, the presidential election is essentially a statewide election. There's a winner and a loser. Not a winner and a runner up. We don't give boobie prizes in our elections. Let's not start in California.

I do recommend the Slate article. It's really very good, and lays out the legal reasoning behind Mr Kendall's argument.


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