Editore"s Note
Tilting at Windmills

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September 28, 2007
By: Kevin Drum

ELECTORAL COLLEGE HIJINKS....Remember that cute little piece of skullduggery Republicans have been backing that would split California's electoral votes by congressional district instead of awarding them all to a single candidate? Long story short, California is reliably blue and a Democratic presidential candidate could normally expect to win all 55 of the state's votes. Under the new proposal they'd probably split about 35-20. Democrats would instantly lose 20 electoral votes.

So clever. So sly. So dead:

The Times' Dan Morain reports that the proposal to change the winner-take-all electoral vote allocation to one by congressional district is virtually dead with the resignation of key supporters, internal disputes and a lack of funds.

....Opposition was lead by Democratic consultant Chris Lehane who received financial backing from donors such as Stephen Bing, like Lehane a Hillary Clinton backer who saw any threat to keeping all of California's electoral votes as unacceptable.

"We want to to make sure this is not the Freddie Kruger of initiatives," Lehane said today, "that comes back to life. We'll continue to monitor it."

The LA Times promises a full report on the debacle later tonight.

UPDATE: The full story is here:

The campaign received only one sizable donation — $175,000. That is less than one-tenth of the $2 million typically needed to gather sufficient signatures to qualify a measure for the California ballot.

The donation arrived on Sept. 11....But the individual donors to the organization were not known.

...."I am not willing to proceed under such circumstances," Hiltachk said. "Therefore, I am resigning my role in this campaign." Eckery added: "There's no reason to be cute on campaign contributions. We had nothing to hide, and the public has every right to know."

....Hurth did not return repeated calls seeking comment. His spokesman, Republican consultant Jonathan Wilcox, would not say who provided the $175,000. Wilcox said the group was planning to donate to other conservative causes around the country, including one in Utah to create school vouchers.

Kevin Drum 12:42 AM Permalink | Trackbacks | Comments (50)

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Yay! The Electoral College remains reliably screwed!

max
['So we can replace it a reliably screwed majority vote!']

Posted by: max on September 28, 2007 at 1:01 AM | PERMALINK

The GOPervert party wants to make the liberals in california more liberal?

Posted by: Ya Know.... on September 28, 2007 at 1:05 AM | PERMALINK

It was unconstitutional anyway.

Posted by: Callimaco on September 28, 2007 at 1:10 AM | PERMALINK

It's good to see that Chris Lehane is making himself useful, killing things that need to be killed.

Posted by: Neil the Ethical Werewolf on September 28, 2007 at 1:23 AM | PERMALINK

Huh. Can't say I understand why Republicans, nationwide, aren't backing this materially; it seems like such a low risk/high reward proposition.

Maybe their thought is that this initiative only stood a chance if it stayed under the radar--so now that the Democrats have taken notice, it can't possibly pass in blue California?

Still--jeez, the Republicans have nothing to lose here. Neither do I, so I'll fearlessly bet that Lehane's fear comes true, and this initiative becomes a Freddy Krueger.

Don't fall asleep, Californians....

Posted by: Rieux on September 28, 2007 at 1:29 AM | PERMALINK

I was hoping Nader would peel off an electoral vote or two from Marin County...

Posted by: Nadir on September 28, 2007 at 1:31 AM | PERMALINK

My guess is because it's clearly unconstitutional, and they finally got good legal advice that they are wasting their time. The constitution clearly states that state legislatures make the rules about presidential electoral votes. The California constitution allows initiatives to change things, but the federal constitution does not.

So it's low risk, but expensive, and no reward.

Posted by: Joe Buck on September 28, 2007 at 1:33 AM | PERMALINK

After all I've seen in the last ten years, I will never feel any safety or confidence in the claim "it's unconstitutional."

All we would get is a short, per curiam decision that says "Republicans win" and "in the unlikely event that the Democrats ever grow the balls to try something similar, this case is not precedent for anything."

Posted by: James E. Powell on September 28, 2007 at 2:05 AM | PERMALINK

Amazing how "every vote counts" can be tossed right down the crapper when it's about keeping one party's power.

Democrats would not "lose" electoral votes. They would be stopped from claiming electoral votes they actually have no honest title to.

Over 5 million Republicans in California--more than the entire population of most other states--have votes that count for nothing in most presidential elections.

When you look at the results, is "winner take all" in a state that has a permanent solid majority for one party really any different from keeping voters away from the polls?

Posted by: harry on September 28, 2007 at 2:05 AM | PERMALINK

James Powell's comment above is _exactly_ right. We have had untrammeled run over the boundaries of our constitution these past seven years. (Or for far longer if you consider the rampant illegality of the 'war on drugs'.)

There is no safety for you, dear citizen, if you believe the constitution protects you by defining anything inalienable as a right.

An unmarked 'decision of the court' would be all that's needed to write your right out of existence.

Consider the habeas farce. A pre-constitutional right that has survived nearly a millenium has been abrogated by a mere 'executive decision', and we think, in our foolishness, that a simple piece of legislation will be enough to reverse this nullification. Why?

Posted by: Shannen Andersen on September 28, 2007 at 2:27 AM | PERMALINK

Harry,

That's baloney and you know it. Wilson, Duekmejian, and Reagan were 2 term governors of this "liberal" state. Basically, "victimized" Republicans owned the governorship for the entire last quarter of the twentieth century, Jerry Brown being the only real break in the line up. More to the point, Nixon won this state in the presidential races of 1968 and 1972; Reagan won it in 1980 and 1984; and George W. Bush's father won it in 1988. So, this state pretty much went for Republican Presidents for the last quarter of the twentieth century as well, Clinton and Carter being the only exceptions.

To me, it just looks as if the public in California has decided to swing away from Republicans. I don't know why, but I expect that think one day it'll swing back. Nothing lasts forever in politics.

Posted by: KC on September 28, 2007 at 2:32 AM | PERMALINK

Over 5 million Republicans in California--more than the entire population of most other states--have votes that count for nothing in most presidential elections.

And there are a roughly equal number of Democrats in large red states like Texas. I'm sure you are also very concerned by their disenfranchisement?

When you look at the results, is "winner take all" in a state that has a permanent solid majority for one party really any different from keeping voters away from the polls?

Again, replace "California" with "Texas" and "Republican" with "Democrat" and suddenly you're not whining.

The problem is that the Republican party focused solely on pushing this proposal in the now reliably Democratic State of California. If they were pushing this nationwide I'd believe they had good intentions (trade the OC for Austin). But the fact that this bill only helps Republicans at a time when they need all the help they can get makes me call shenanigans.

Posted by: Nied on September 28, 2007 at 3:12 AM | PERMALINK

When you look at the results, is "winner take all" in a state that has a permanent solid majority for one party really any different from keeping voters away from the polls?

Y'know, you could say the same about my home state of Texas. Wonder why the Rethugs aren't trying this crap there...

Posted by: J. A. Baker on September 28, 2007 at 3:17 AM | PERMALINK

Dems would gain 12 electors in Texas, by my rough estimate.

What makes this plan a really awful idea is that it extends the national electoral wars -- that's how we should conceptualize it -- down other layers of government. Redistricting is a big fight; instead of merely for Congress, though, it becomes the whole shebang.

That makes state house elections so much more important -- and bitter. Fighting to gerrymander the districts would become THE full-time job of the legislature. And that would destroy any semblance of good governance in the states.

And given the mediocre quality of our state reps and senators...well, this would be a clusterfuck. Has anyone seen this aspect of it discussed anywhere else? Has it been mentioned in California, Kevin?

Posted by: boat shoes on September 28, 2007 at 3:58 AM | PERMALINK

I fear that Kevin spectacularly misses the real issue here, while scumbling around in the undergrowth. The "forest" remains pristine and invisible.

The REAL issue here is private Frankenstein legislation by crypto-zillionaires, which has grown to epidemic proportions in recent years.

We still don't know who was behind this. And that's the real issue. Not the particulars of another failed creepy ballot measure. They'll be back when their internal polling indicates that they can get away with it, and a huge, well-oiled, professional astroturf machine will stand ready to foist the measure(s) off as being "grassroots."

That was what happened in 2006. And 2004, 2002, 2000 ... you get the idea.

Details at the link.

Posted by: Hart Williams on September 28, 2007 at 4:04 AM | PERMALINK

As a corollary, has anyone seen a proportional representation scheme added to the electoral college? I know Colorado tried it, but it lost at the polls. I can conceive of arguments favoring something like this that would be constitutionally kosher, politically feasible and maintain whatever it is people think the College is good for. But right now I'm too sleepy.

And it saves Harry's poor, poor California 'pubs.

Posted by: boat shoes on September 28, 2007 at 4:07 AM | PERMALINK

Hart, I don't think Kevin is naive to the perils of the initiative nightmare. If you're a regular, he posts on it pretty frequently. I've been reading about it since back when Kevin was in boat shoes himself.

[Speaking of which, Kevin, has WM taken over all your posts from the Calpundit days?]

Posted by: boat shoes on September 28, 2007 at 4:12 AM | PERMALINK

I was on a conference call with Chris Lehane & the Fair Election Reform guys today. They were planning on filing suit Monday at noon if the sole donor wasn't revealed.

They claimed violation of both CA and federal election law.

Posted by: SteveAudio on September 28, 2007 at 4:34 AM | PERMALINK

These Republican corksuckers can't win a national election honestly, so they are always looking for ways to game the system. This is just the newest scam.

I hope every progressive in this country never, ever forgets what happened in the 2000 election and that one of the reasons we got stuck with the Unelected One in the first place was the anachronistic Electoral College. Al Gore won the election by over a half million votes - that is an incontrovertible fact. If we hadn't been stuck with the idiotic Electoral College system (which was an afterthought by the Founding Fathers), the Nimrod from Crawford would be clearing brush, drinking Jack Daniels and beating up Laura right now, not destroying Third World Muslim countries and irreparably ruining the American economy. The five conservative justices on the SCOTUS didn't help either.

We need to scrap the Electoral College system - TODAY!

Posted by: The Conservative Deflator on September 28, 2007 at 7:31 AM | PERMALINK

KC has a good point: it's only during the Clinton and Bush years that California has become reliably Democratic in presidential elections. One quibble: he's got CA wrong on 1976 -- it went Republican (for Ford) in that year also.

Posted by: Alex R on September 28, 2007 at 7:39 AM | PERMALINK

It's funny to watch leftists get their undies twisted when it comes to so-called Republican "thuggery" against the Constitution, especially when they ignore the real Democratic thuggery that was on display last year when some Democrats in the California state assembly tried to do a constitutional end-around by trying to base California's electoral votes, all of them, on the presidential nominee who gets the most popular votes nationwide. Hypocrites.

Posted by: SteveIL on September 28, 2007 at 7:55 AM | PERMALINK

I look forward to your now railing endlessly against Maine's and Nebraska's "skullduggery," as they have both used the District Method for quite some time.

Because I know how much you utterly abhor hypocrisy.

Posted by: KipEsquire on September 28, 2007 at 8:26 AM | PERMALINK

If we hadn't been stuck with the idiotic Electoral College system (which was an afterthought by the Founding Fathers), the Nimrod from Crawford would be clearing brush, drinking Jack Daniels and beating up Laura right now

Probably not clearing brush. The "ranch" was someone's idea of a studly presidential hideaway. Left to his own devices, he'd probably be just another Dallas asshole with a big mouth, as he likely will be when this is all over.

The rest sounds about right.

Posted by: shortstop on September 28, 2007 at 8:27 AM | PERMALINK

There's additional information about the initiative's organizer Thomas Hiltachk and the initiative's biggest donor, Take Initiative America and its founder Charles A. Hurth III that I wrote about in The Blue Voice that you and your readers might be interested in. [LINK]

Posted by: Wonky Muse on September 28, 2007 at 8:55 AM | PERMALINK

Maybe I've missed it, but I read an article within the past week or so in The Nation, I believe, on a bipartisan effort called National Popular Vote to elect the president WITHOUT abolishing the Electoral College.

Here's the link.

http://www.nationalpopularvote.com/index.php

Here's a 3-sentence description from the site:

"Under the U.S. Constitution, the states have exclusive and plenary (complete) power to allocate their electoral votes, and may change their state laws concerning the awarding of their electoral votes at any time. Under the National Popular Vote bill, all of the state’s electoral votes would be awarded to the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia. The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes—that is, enough electoral votes to elect a President (270 of 538)."

I'd be very interested in serious comments on this./hancock

Posted by: hancock on September 28, 2007 at 9:05 AM | PERMALINK

I have a question for those commenters who are arguing that the plan was unconstitutional because it would displace the assignment plan of the legislature for an assignment plan voted by initiative, in clear violation of Article II, which provides that "[e]ach state shall appoint, in such manner as the Legislature thereof may direct, a number of electors."

To be clear, I agree with you. It seems to me that where the Constitution says, for example, that when Article I 2 provides that "the executive authority ... [of a state] shall issue writs of election to fill such vacancies" as arise in that state's House delegation, that allows the state's executive branch to internally delegate - the state could decide that the attorney general, for example, will issue the writs rather than the Governor - but the state could not decide to assign that duty to its Supreme Court, or to its legislature. When Article I 2 says "executive authority" it means executive authority, not judicial or legislative branch, just as when Article II 1 says "legislature" not "initiative." Or to provide another example, Article V requires the assent of "the legislatures of three fourths of the several states" to ratify a Constitutional amendment, and you can see under the same logic that forbids an initiative from assigning electors, the state legislature and the legislature alone has the authority to accept or reject a federal Constitutional Amendment, so it follows that the laws on the books in Wyoming, Tennessee and Rhode Island requiring the Governor of those states sign off on a federal amendment approved by the legislature are also unconstitutional.

I believe all this. I'm delighted to find peple on the other side of the aisle professing as much. But I confess that I'm surprised to see it. If you agree with the foregoing, you've boxed yourself in to agreeing with the Chief Justice's opinion in Bush v. Gore. That opinion relied on precisely the same provision of Article II that you rely on here, in exactly the same way? You say that Article II commandeers the legislature of the states, not whatever lawmaking process the states may institute of their own initiative (so to speak); thus, an assignment plan that was adopted by a state actor other than the legislature - the governor by executive order, the judiciary through creative interpretation akin to what the Supreme Court did in Baker v. Carr and its progeny, or the people directly through an initiative. But that's exactly what happened in Florida, according to the Chief Justice: the legislature adopted a plan, and that plan was being rewritten by state actors who were not the state legislature: by Katharine Harris, an executive actor, and the Florida courts, judicial actors.

If you accept the Article II argument here, how do you distinguish Bush?

Posted by: Simon on September 28, 2007 at 9:11 AM | PERMALINK

Harry wrote:

When you look at the results, is "winner take all" in a state that has a permanent solid majority for one party really any different from keeping voters away from the polls?

1) Boo fucking hoo hoo. Is it any different from being a Democrat in Idaho (other than the fact that you aren't "pressing the flesh" in men's airport restrooms)?.

2) Yes, it's quite different. Keeping voters away from the polls (I imagine you're channeling Florida 2000) is illegal. The winner-take-all system in the US has always been in place, and can be changed by the state legislature at any time - so get to work!

3) Did you cry about this "problem" when Reagan won all of California's electoral votes in 1984?

Posted by: chuck on September 28, 2007 at 9:25 AM | PERMALINK

Posted by: SteveIL on September 28, 2007 at 7:55 AM

You might want to take your shining intellect over to the Myanmar article on CBSNews and post your comments there about the monks who "get their undies twisted" when it comes to so-called "thuggery" from their political system.

Watchdogging any political machinations within our own country is a deadly serious matter. That you appear to believe Republicans should be entitled to perform unethically for whatever reason you drum up is actually hypocrisy.

Posted by: Zit on September 28, 2007 at 9:30 AM | PERMALINK

I look forward to your now railing endlessly against Maine's and Nebraska's "skullduggery," as they have both used the District Method for quite some time.

As those states constitutionally and legally split their electoral delegations via legislation in the state assembly, no, I have no problem with it. Did you have a point to your blathering?

Posted by: Blue Girl, Red State (aka G.C.) on September 28, 2007 at 9:38 AM | PERMALINK

hancock,

In my admitedly amateur legal opinion, I think that's right, not because the states that comprise a majority of EC votes would have the right to impose this change on the minority of states, but simply because they have the right to change their own individual rules. If a majority of EC votes are awarded to the popular vote winner, then it doesn't matter what the minority does, as they won't be able to change the outcome away from what the majority is seeking.

Posted by: Dismayed Liberal on September 28, 2007 at 9:46 AM | PERMALINK

Too bad! Why not a national initiative? What's good for Caifornia -- proprtional voting should be good for the other 49 states. A big first step towards popular election of the President (& veep)

Posted by: Ray waldren on September 28, 2007 at 10:08 AM | PERMALINK

Sorry, suggesting that the amendment process cannot modify federal election results is not the same as the idiotic ruling in Bush v. Gore. Bush v. Gore relied on the notion that the state court could not interpret the statutes of the state of Florida. It was more in line with overturning Marbury v. Madison.

For the record, I'm not sure I agree with those who think the amendment is unconstitutional. It is stupid. It is especially stupid if only Republicans are helped by it.

The fact that two states already do it is no argument in favor, by the way. Even doing it nationwide would not make it a good idea. The Electoral College already distorts the vote. Small states will not split their vote and so would still deprive the losers of any voice.

If you were really concerned about ensuring that everyone had an equal voice in the presidential race you would be clamoring for the abolition of the EC, not this bullshit backdoor business designed by the RNC.

Posted by: heavy on September 28, 2007 at 10:57 AM | PERMALINK

Hancock,
That plan would very likely be unconstitutional. In the first instance, it would be unconstitutional because to the extent it coordinates enactment - that is, conditions its going into effect on the legislative actions of other states to achieve a common goal - it's an interstate agreement or compact, which requires the consent of Congress (which they won't get) under Art. I 10. I would also argue that it's unconstitutional under federalism principles, to the extent that it's an attempt to subvert the federal structure, cf. Printz, Thornton and National League of Cities. Although we usually think of federalism in the modern age as protecting the state prerogatives against federal incursion, that's simply a shorthand for saying that the prerogatives of both the states and national governments are respected by one another, a shorthand produced by the fact it's usually the federal govenrment imposing on the states rather than vice versa. Nevertheless, although I think Justice Thomas was much more right than Justice Stevens in Thornton, I think that case came out the right way to the extent that it was an attempt by a state to do something that it had no authority to do under the Constitution, to subvert the Article V process (in that case, to impose an additional qualification on members of Congress, albeit only its own members). That action violated federalism principles, and I strongly agree with Justice O'Connor on this issue that if the federal system is to remain meaningful, the federal courts cannot simply abdicate their constitutional responsibility -- it's too often forgotten that Chief Justice Marshall said that it is the province and duty of the judiciary to say what the law is, Marbury, 5 U.S. at 177 -- to enforce the structural constitution (see Garcia, 469 U.S. at 581 (O'Connor, J., dissenting)). Similarly here, I would argue that even if Congress' blessing obviates the interstate agreement or compact clause problem, the Supreme Court should strike down such plans - although I think it is highly unlikely that the Roberts court will do so, not least because Justice Alito seems far less solicitous of federalism concerns than Justice O'Connor (see, e.g., United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste, 127 S. Ct. 1786, __ (2007) (Alito, J., dissenting) (citing Garcia approvingly)).

Posted by: Simon on September 28, 2007 at 11:03 AM | PERMALINK


"My guess is because it's clearly unconstitutional, and they finally got good legal advice that they are wasting their time. The constitution clearly states that state legislatures make the rules about presidential electoral votes. The California constitution allows initiatives to change things, but the federal constitution does not."

Posted by: Joe Buck on September 28, 2007 at 1:33 AM

So, you now agree with the Supreme Court's ruling in Bush v. Gore, that the Florida Supreme Court's after-the-fact attempt to change the election rules that the Legislature had enacted was unconstitutional?

Prepare to be exiled from liberal paradise for such heresy. lol

But I disagree with you that this proposal is unconstitutional. If the California Constitution allows for ballot initiatives that can become law is without limitation, then the legislature's power to allocate the state's electors would be also be subject to the peoples' power to vote on ballot initiatives. After all, under the California Constitution, the people are the ultimate legislative authority when voting on ballot initiatives. Since there is nothing in the U.S. Constitution that precludes a state constitution from allowing the people to vote for ballot initiatives that concern the allocation of a state's electoral votes, there is no provision of the US Constitution that this ballot initiative violates. Unless the liberal justices of the Court want to go looking for a "penumbra," I don't see how this would be unconstitutional.

Posted by: Chicounsel on September 28, 2007 at 11:33 AM | PERMALINK

The copyediting on this Web site is quite good, compared to that on other sites (the otherwise excellent TPM, for example). Note the errors in the excerpt from the LA Times blog entry: “was lead by Democratic” should be “was led by Democratic”; “Freddie Kruger of initiatives” should be “Freddy Krueger of initiatives.” The spelling of proper names should always be checked.

SRS

Posted by: Synsidar on September 28, 2007 at 11:35 AM | PERMALINK
Sorry, suggesting that the amendment process cannot modify federal election results is not the same as the idiotic ruling in Bush v. Gore. Bush v. Gore relied on the notion that the state court could not interpret the statutes of the state of Florida. It was more in line with overturning Marbury v. Madison.

That reply takes a little unpacking to respond to. First, I don't know what you mean by characterizing my position as being that "the amendment process cannot modify federal election results." My argument (and I presume that advanced by other commenters above) is that when the Constitution imposes a duty or confers a power on a particular branch of a state's government, rather than on the state generically, we ought to take that assignment seriously. Article IV, to give another example, does not simply confer upon "the state," generically, authority to demand extradition of a fugitive from another state, it confers it on the state's executive branch. Cf. Art. I § 9 ("No state shall..."). Likewise, Article II doesn't say that electors will be assigned in whatever manner the state will determine, it says that the state's legislature will decide how electors are assigned. When a state legislature acts according to this provision, it does so as an Article II actor, not as an actor within the oridinary strictures of that state's Constitution; because the state can't take an action that subverts the federal Constitution (cf. Thornton), in my view, it cannot assign this authority to another branch of government, which includes the people acting corporeally through the proxy of a referendum.

Second, to be clear about Bush, there were two rationales in that case: the equal protection rationale of the per curiam opinion, which I think didn't amount to much (equal protection has very little to say about voting rights in the abstract, as I see it; if it did, the contemporaneous proposal of the Fifteenth Amendment would have been nugatory, as would have been the Nineteenth Amendment and a few subsequent amendments covering the same ground), and the Article II grounds covered in the Chief Justice's concurrence. I'm speaking only about the concurrence, not the per curiam opinion.

Marbury is a case cited for many propositions, but at root, it was the first case to assert the power of the judiciary to invalidate acts of Congress contrary to the Constitution. It did not, however, as it is frequently asserted to have done, create that authority, which is directly material to the point. There's an ambiguity in "say" in this context; Marbury did not say what the law should be, it said what the law was. Cf. Federalist 78 ("A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute"). One can no more say that Marbury "created" judicial review than one can say that Powell v. McCormack "created" the exclusivity of the qualifications clause merely by being the first case to apply it.

Marshall was right that it's "the province and duty of the judicial department to say what the law is," but to expound is not to manufacture. Marshall, I think, would have understood that pithy phrase in keeping with the then-prevalent understanding of law (recall that "[i]n endowing th[e Supreme] Court with 'judicial Power' the Constitution presupposed an historic content for that phrase ... the framers of the Judiciary Article gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union," Coleman, 307 U.S. at 460 (opinion of Frankfurter, J.)), and thus to imply what Blackstone said outright: the judge should say what the law is, which is not "to pronounce a new law, but to maintain and expound the old one."

This becomes relevant because courts can and often have gone beyond saying what the law is, and encroached into saying what the law ought to be. It seems beyond doubt that if the federal courts did something akin to Justice Brennan's "reapportionment revolution" in the electoral college sphere, and restructured a given state's appointments, that would be unacceptable under Article II because it would create a scheme that the legislature didn't promulgate. Likewise, while I don't see any point in trying to persuade anyone that the courts in Florida went too far in December 2000, any honest commenter must surely concede that it is possible for a court to adopt a construction of a statute that is so at odds with the statute that it functionally amends it. Liberals are the last people who can gainsay this proposition, having spent the last six months arguing that the Supreme Court did precisely that in Ledbetter, it seems to me. If that's so, the argument that Bush is in tension with Marbury wilts; the latter says that courts will construe the law, the former says only that in that case, the courts ceased construing and began making the law, and thus ran afoul of the exclusivity of state legislatures. One can agree with that or disagree with it, but it seems intellectually dishonest, in my own opinion, to suggest that the underlying principle itself is absurd, although of course one can argue legitimately that while the principle was sound, it was wrongly-applied.

For the record, I'm not sure I agree with those who think the amendment is unconstitutional. It is stupid. It is especially stupid if only Republicans are helped by it.

That's true, it would violate the "no stupid laws" clause of the Fourteenth Amendment.

Posted by: Simon on September 28, 2007 at 11:43 AM | PERMALINK

Proportional allotment of electoral votes to reflect the statewide popular votes would be a fine thing. It would be more democratic than 51 separate winner-take-all elections, and would encourage candidates to campaign in states that they now take for granted one way or another.

But boat shoes is correct upthread that allotting one EV to each Congressional district would be a nightmare. It would encourage gerrymandering on a lethal scale. Pretty soon you'd have so many "safe" electoral-vote districts, often unrepresentative of an entire state's makeup, that Presidential candidates wouldn't have to campaign much of anywhere -- only in the 40 or so contested House districts, and in a few hairline-close states where the two "at-large" EVs might make a difference.

Posted by: Tim Morris on September 28, 2007 at 11:44 AM | PERMALINK

Whether or not it constitutional is beside the point. The fact is that it's a blatant power grab by the Republicans to win some electoral votes where they can't get any right now. Anyone who is concerned about having a fair election would be against this idea, or any idea, that benefits one party over the other.

If either the Repubs or Dems want to advance a fair election idea, then eliminate the Electoral College and have the president elected by a simple majority of the nationwide vote. All votes count the same in that scenario.

Posted by: tomeck on September 28, 2007 at 11:51 AM | PERMALINK

[Shouting Deleted]

Posted by: Liti-Gator on September 28, 2007 at 11:59 AM | PERMALINK

One more point. Going to a congressional district allocation of electoral votes does not eliminate the "disenfrachisement" of voters, it merely moves it from the state level to the congressional district level. There would still be large numbers of voters who voted for the losing candidate in the congressional district.

Going to a direct national election of the president eliminates gerrymandering. It eliminates the "I won't campaign in California because I can't win there" type of thinking. It's a true one person one vote system.

Posted by: tomeck on September 28, 2007 at 12:01 PM | PERMALINK

I love the way wingnuts choose to use the NYT as a more reliable vote counting mechanism than the Florida election boards and their Supreme Court.

You clowns don't believe anything else the NYT says, so why are you so insistent that they were right that time?

Posted by: tomeck on September 28, 2007 at 12:04 PM | PERMALINK

Hey Liti-Gator.

two things: one, that little key between the Tab key and the shift key is called 'caps lock' use it.

second off, I am sorry to tell you that, assuming you are a citizen of the planet earth, YOU lost in Bush v. Gore too.

Posted by: northzax on September 28, 2007 at 12:10 PM | PERMALINK
Going to a direct national election of the president eliminates gerrymandering.

Uh, no.

Going to proportional election of legislative bodies eliminates (or, if you do small multimember districts that still support candidate- rather than party-centered elections, vastly reduces) the opportunities for and effects of gerrymandering; changing the mechanism of election of the President doesn't have any effect on gerrymandering whatsoever in most cases, though going to by-Congressional-district voting would magnify the effect of legislative gerrymandering by increasing the stakes.

Posted by: cmdicely on September 28, 2007 at 1:14 PM | PERMALINK

It's funny to watch leftists get their undies twisted when it comes to so-called Republican "thuggery" against the Constitution, especially when they ignore the real Democratic thuggery that was on display last year when some Democrats in the California state assembly tried to do a constitutional end-around by trying to base California's electoral votes, all of them, on the presidential nominee who gets the most popular votes nationwide. Hypocrites.

Of course, and you probably know this, there's nothing un-Constitutional or un-democratic about changing the way a state awards its electoral votes. The Constitution provides no guidelines except state legislatures pick it. They could award it based on the weather if they want.

Going beyond that, I'd rather if every state did it this way. We would have a defacto popular vote, which would be far better than the insane EC. Of course, at that point, you're better off with an actual amendment.

Posted by: Joshua on September 28, 2007 at 2:02 PM | PERMALINK

How is proportional allotment of electoral votes, at the end of the day, any different than direct election based on the popular vote?

What the f*ck do you need the Electoral College for in the first place, if you propose moving to such a system???

Posted by: The Conservative Deflator on September 28, 2007 at 2:24 PM | PERMALINK

TCD,

If EC votes for a state are allotted according to the proportion of votes within that state, and not proportionally based on national vote, then the EC will still have some purpose. If the EC votes are all allotted according to national proportion of votes, then it's pointless, as you say.

Posted by: Dismayed Liberal on September 28, 2007 at 2:59 PM | PERMALINK

cmdicely

Sorry, I meant it eliminates gerrymandering as a means of influencing the Presidential election, in regard to several comments upthread. As you point out, there would still be plenty of opportunity to gerrymander in other races.

Posted by: tomeck on September 28, 2007 at 5:56 PM | PERMALINK

None of Simon's verbiage addresses the fundamental point that the insane Bush v. Gore vitiated judicial review by the Florida Supreme Court. They did not create laws in the opinions, they merely resolved the conflicts between the statutes.

So, in the per curiam which even Simon admits is complete bullshit, we have an equal protection argument that says the way to ensure equal protection is make sure that some people get greater accuracy than others. And the opinion Simon relies on says that the Florida Supreme Court isn't allowed to determine the meaning of Florida State Law.

Bush v. Gore simply cannot be taken seriously.

Posted by: heavy on September 28, 2007 at 9:49 PM | PERMALINK

By the way, I did misspeak(type) in my first post: I said "amendment" when I meant "initiative." That, I'm sure helps explain the initial post a bit better.

Posted by: heavy on September 28, 2007 at 9:55 PM | PERMALINK

Well, I'm not sure anyone takes the per curiam seriously, or that anyone ought to, Heavy. It is, after all, Justice Kennedy's handywork, and after last term (Carhart in particular), my liberal friends now hate him even more than my conservative friends, which is saying a lot. ;) It's been said more than once to folks who cheered Casey and Lawrence, "now you know what it feels to be like on the receiving end of one of these turgid, egotistical monstrosities."

As to the Rehnquist opinion, the concurrence doesn't say that "the Florida Supreme Court isn't allowed to determine the meaning of Florida State Law." It says that (a) courts sometimes do adopt a construction of a statute that distorts the meaning of the statute to the point it ceases to be an interpretation and becomes a re-writing (which is inarguable), (b) that happened in Florida after the 2000 election (which is a debatable point, and people can in good faith reach either conclusion, as you and I do here), and paranthetically, (c) because legislation enacted under the authority of Article II of the U.S. Constitution rather than any provision of the Florida Constitution, the usual relationship between state statutory and constitutional law doesn't apply.

Posted by: Simon on September 29, 2007 at 12:23 AM | PERMALINK




 

 

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