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Take the Constitutional Fight to the Conservatives

California Majority Report
Doug Kendall
September 24, 2007

In an op-ed last week in Slate, I chronicled how the text of the U.S. Constitution and Supreme Court precedent render "patently unconstitutional" a ploy by California Republicans to use a ballot initiative to change the method of appointing the state’s 55 electors. The case is strong, and I appear to have convinced many readers in California and elsewhere. Perhaps, in a way, I was too convincing.

Some Californians appear to have concluded from my piece that defeating the Presidential Election Reform Act ("the Act") can safely be left to the Courts. One blogger has even argued that opponents of the initiative should not "spend a dime" opposing the measure and should instead simply challenge the measure in court. That’s a really bad idea. 

First and foremost, no one in this country should want the courts decide another presidential election. While I think the Court’s decision in Bush v. Gore would actually hem the Court’s conservatives in here, Democrats, in particular, have reason to be leery of any strategy that could leave the outcome of the 2008 election in the hands of the U.S Supreme Court -- more conservative now than it was in 2000.

There are also tricky issues of timing. Opponents of the Act cannot even bring a challenge to the measure until its proponents raise the requisite number of signatures to secure a place on the June 2008 ballot. This will take months and opponents can’t afford to hold their tongues and fire during this period, when supporters of the Act will be all around the State promoting a proportional allocation system.

California courts tend to punt on pre-ballot challenges for the simple reason that they prefer to see what voters will do. Thus it is entirely possible that, notwithstanding the strength of the legal case against the Act, it will be on the ballot in June. If voters approve the measure, the push for proportional allocation of California’s electors might start to look inevitable, even if the Act itself is ultimately deemed unconstitutional.

More fundamentally, the strength of the case that the Act is unconstitutional should lead voters of all political stripes to oppose the measure. My piece was directed mainly at California Republicans, who look awfully hypocritical promoting an unconstitutional ploy to change the outcome the 2008 election, while the Republican candidates for that election cross the country promoting "strict constructionist" judges. My message is in line with that of Governor Schwarzenegger, who has warned Republicans that an effort to change the rules in the middle of the game reeks of a "loser’s mentality."

Progressives should use the unconstitutionality of the Act not as a crutch to avoid a campaign fight, but as a tool to brandish in that campaign fight. The argument that the Act is unconstitutional should resonate with voters who might not be roused into opposition merely by its potential to benefit Republicans. The editorial page of the conservative Orange County Register has called the initiative "subversive to democracy." Others should be persuaded (or, when necessary, prodded) into following their principled lead.

As I’ve argued elsewhere, progressives rarely look to constitutional text and history to support their arguments, even in cases such as this where text and history provide terrific ammunition. I think progressives need to take back constitutional text and history from conservatives, and maybe using these arguments in the context of a campaign against the Act is a good place to start.

Doug Kendall is the Executive Director of the Community Rights Counsel.

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