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Doug Kendall, Slate Magazine, September 13, 2007

Republican presidential candidates are crossing the country promising voters that they’ll pick judges who will be “strict constructionists” of the U.S. Constitution. Meanwhile, Republican activists in California are trying to flout the Constitution in order to change the rules for the 2008 election. Last week, their bid to change the state’s method for meting out its electoral votes was endorsed by the state GOP and cleared by the California secretary of state, moving it closer to a place on the June 2008 ballot.

It’s easy to see the allure for Republicans of this voter referendum, which has a predictably misleading name, the Presidential Election Reform Act. The initiative aims to replace the state’s current “winner-take-all” allocation of its trove of 55 Electoral College votes. Instead of going to a single candidate, the state’s electoral votes would be divvied up among multiple ones, based on the popular vote outcomes in California’s 53 congressional districts. As several commentators have pointed out, including Jamin Raskin in Slate, this is all about political gamesmanship. (Bush won 22 of California’s congressional districts in 2004, and assuming that voting trend holds, the proposed referendum would shift approximately 20 electoral votes into the Republican column. That’s enough to determine the outcome of a close election.)

But there’s a big problem with this referendum that has so far gone unnoticed: It’s patently 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.

Some of the Constitution’s provisions are famously elusive. But “the Legislature thereof” is not one of them. In the 1920 case Hawke v. Smith, the Supreme Court ruled that a ballot initiative could not be used to undo a state legislature’s decision to ratify the Constitution’s 18th Amendment. The court found that the term legislatures is “plain, and admits no doubt in its interpretation.” Justice William Day wrote, “The framers of the Constitution clearly understood and carefully used the terms in which that instrument referred to the action of the legislatures of the states. When they intended that direct action by the people be had they were no less accurate in the use of apt phraseology to carry out such purpose.”

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