A big problem looms if California voters should be asked to copy Nebraska and Maine in awarding electoral votes for president by congressional district: The very act of asking them likely is unconstitutional.
Doug Kendall, executive director of Community Rights Counsel, persuasively argues that ignoring state lawmakers would violate Article II, Section 1, of the U.S. Constitution: “Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”
Legislatures have done so, in at least a half-dozen different ways, since George Washington’s first election in 1789. And the Nebraska Legislature so directed in 1991 in deciding (on a 25-23 vote) to award one electoral vote to the presidential winner in each of the three House districts, leaving the other two to the statewide winner. ThenGov. Ben Nelson signed the bill.
Both in the online magazine Slate and on his group’s Web site (http://www.communityrights.org), Kendall outlines solid precedents that argue against the constitutionality of changing a state’s elector-selection process via ballot initiative.
The first was set in an 1897 case over the last time a state ( Michigan in 1892) used the congressional-district plan before Maine, which had used the system in its first years of statehood, returned to it in 1972.
The U.S. Supreme Court unanimously ruled in the Michigan case that the Constitution “leaves it to the legislature exclusively” to decide how presidential electors are chosen.
In 1920, the high court — in another unanimous ruling — said Ohio voters couldn’t reverse their lawmakers’ ratification of the Prohibition amendment.
Kendall also calls attention to the disputed 2000 presidential election, which produced statements from both sides defending a legislature’s constitutional prerogatives in choosing electors.
Not only did the majority U.S. Supreme Court opinion in favor of President Bush reaffirm the 1897 Michigan case, but Laurence Tribe, one of Al Gore’s attorneys, also wrote in a post-case critique that letting voters decide how to choose electors “obviously would not be consistent with Article II.”
If voters so choose in California next June, one would hope — for the sake of the nation — that the courts would be handed this question right away. That state’s 55 electoral votes almost certainly would be split, as they have yet to be in Nebraska.
An appeal after the general election, especially if the national race is as close as in 2000, could make the Bush vs. Gore tussle seem tame.
If Constitution says legislatures rule selection of electors, what of effort in California?
© 2007 Omaha World-Herald 09/17/2007