Balkinization: Ballot Propositions to Effectively Repeal the Electoral College

Ballot Propositions to Effectively Repeal the Electoral College

Gerard N. Magliocca

Let's return to a theme that I raised on Election Night. Two of the last five presidential elections were lost by the national popular vote winner, thus many people will probably be taking another look at abolishing the Electoral College. Since obtaining a constitutional amendment to do that is impossible, the only alternative is to get states with a total of 270 electoral votes to agree amongst themselves that their electoral votes would go to the national popular vote winner. Thus far, though, only states with 165 electoral votes have done so. (You'll not be shocked to learn that these are all states that typically vote for Democrats.) Why would many more join? Surely their legislatures would block that effort, either because they want to preserve their state's outsized power in a general election or because they think the current system benefits Republicans.

There is, though, another route worth exploring. Ballot propositions could be put forward in some states to amend their constitutions in favor of the national popular vote method of awarded electoral votes. Wait a minute, you might think. The Constitution says that state legislatures get to decide how electoral votes are allocated. A ballot proposition is not an act of a state legislature.

Under the Supreme Court's 2015 analysis in Arizona State Legislature v. Arizona Independent Redistricting Commission, though, the Constitution's use of state "legislature" can be read to mean state "lawmaking power." The Court held that a state constitutional amendment could be used to set up an alternative mechanism for drawing congressional district boundaries even though Article One talks about that power being lodged in the state legislature. Why would the same not be true for the allocation of electoral votes? (Yes, McPherson v. Blacker and Bush v. Gore have dicta to the contrary, but that probably cannot overcome the most recent decision on that question.)

There are enough states that make constitutional amendments possible through a ballot proposition to get the total to over 270 electoral votes. Examples include Arizona, Colorado, Florida (obviously a big state), Michigan and Ohio. There are also others that could take legislative action and might be inclined to do so (Connecticut, Delaware, Oregon, Minnesota, Nevada, New Mexico, and Virginia). If all of these states joined, you would have more than 270. You probably cannot get to more than 270 without one of the big 3 (FL, MI, and OH), though after the next census that may change.

To pick up on Sandy's theme, issues of constitutional structure count for more than issues like Citizens United or the usual liberal hobbyhorses. I also think that (as a person who votes for Republicans and Democrats depending on the situation) that there is a principled argument for using federalism to short-circuit the Electoral College.

Posted 12:31 PM by Gerard N. Magliocca [link]

Comments:

I am inclined to agree that popular vote should matter, including as a sort of "tie breaker" in a closer race like this. I would continue to be concerned about instant run-off voting, especially given multiple states had third party votes being above the margin of victory, one or more of one third party candidate. And, even if the EC change did not alter the results, the overall good of respect for personal voting rights would be valuable.

But, if you are inclined to support the Electoral College, Trump narrowly winning various states (support spread out) might help your case. The raw vote totals are notable, but percentage-wise, we are talking about a percent or less, apparently. Not even clear if this proposal would have changed the result, given the campaigns would have changed strategy. Again, this isn't 2000, where even NH could have changed the results. In raw numbers, the Senate might even be arguably more of a concern: http://www.usatoday.com/story/news/politics/onpolitics/2016/11/10/democrats-won-popular-vote-senate-too/93598998/

Anyway, granting the last point about "hobbyhorses," how much the electoral college affected this election above and beyond other things (e.g., media reporting, FBI actions, etc.) is rather unclear to me. If we do change the EC, there are other things probably, even regarding voting alone, that appeals. And, is this really a good time for such a law to pass? How many states have the ballot method available, especially if it requires legislative action of some sort? And, that ruling was 5-4. Wonder how much staying power it will have.

# posted by

Joe : 12:58 PM

Trump may want to keep these unconstitional bypasses in mind when he appoints Scalia and likely Ginsberg's replacements.

# posted by

Bart DePalma : 1:57 PM

I'm certainly not opposed to bypassing the EC. Somebody should be making a list of other immediate actions we could take:

1. Crowd-source funding for Trump's sexual assault victims and any other lawsuits against Trump (with good cause, of course). A series of such verdicts would be very powerful.

2. Refuse to buy anything Trump, whether his or his children.

3. Start voter registration drives now in places like GA, TX, AZ, and elsewhere.

4. Gerrymander blue states to the maximum extent possible to at least partially make up for places like NC and PA. Sauce for the goose, and all that. If that's not possible, use the initiative process to give redistricting to a neutral commission. If necessary, increase the number of state legislators, which will result in smaller districts and make it harder to gerrymander.

5. Use the initiative process to change gubernatorial elections from non-presidential years to presidential years.

6. Use initiatives to institute forms of universal voter registration and reverse "purges" of voters. A national "voter rights act" can't pass Congress, but it might pass in individual states.

7. Make a voter rights act a Dem party measure nationally.

I'm sure others can come up with more or better.

# posted by

Mark Field : 2:25 PM

1) Assuming the lawsuits aren't meritless...

2) Oh, corruption of the blood? I just love it when liberals demonstrate how enlightened they really aren't.

3) Go for it!

4) If you're not innumerate, this will tell you how futile that would be.

5) Again, go for it.

6) HAVA actually requires purges. We will soon have a Justice department that won't ignore that.

7) Already is.

# posted by

Brett : 6:13 PM

Here's my list.

1) Enforce the purge requirements of HAVA.

2) Stop preventing the states from requiring proof of citizenship.

3) Stop opposing ballot security measures.

4) Abolish early voting, and make Election Day a national holiday.

5) Prioritize the security of voting systems generally.

Nice thing is, a lot of this is already law, just required a Justice department that wants the law enforced.

# posted by

Brett : 6:22 PM

1. It's fine and important to keep up to date voting rolls, but you have to do it the right way & not illegitimately burden rightful voters in the process. This was an issue in 2000 -- Florida used a system regarding felons that over-corrected, making purging more important than the rights of rightful voters.

http://www.projectvote.org/issues/list-maintenance/voter-purges/

2. The actual need for more requirements on top of a federal policy of needing to swear on the penalty of perjury is repeatedly not shown to be necessary. In various cases this was blocked, it was seen to be an unnecessary burden on voting rights. But, unlike certain rights, additional unnecessary burdens that tends to specifically harm certain races and ethnic group is acceptable to some. In fact, it is a top priority.

3. There are various ballot security measures. Again, like for other rights, such as guns, certain measures are unnecessary, unduly burdensome or simply unconstitutional. It depends on the specifics. Again, maybe some rights are more important than others. Sometimes unnecessary "statism" is okay.

4. I don't like early voting way ahead a time, but at the very least if you abolish it, in multiple states, this will require more machines and polling places. People, with early voting, were waiting for hours on line. If that is the case, one single day, even a national holiday (people work on holidays, they have family commitments etc.) is not enough. I myself rather a three day period.

5. That's fine. This would for me include receipts.

BTW, that's not "corruption of blood" unless it amounts to penalizing Barron when he sells stuff for his private schools. Tiffany might be a wash. OTOH, if it affects his daughter, deeply involved in his campaign and business, it is not merely punishing the family for the sins of another. The children are part of his campaign and business.

# posted by

Joe : 6:43 PM

If Trump wants to be ruthless...

1) Enact a spending bill not subject to the filibuster requiring states to require proof of citizenship to remain on the voter rolls and the various welfare rolls and to report non-citizens on those rolls to the federal government or lose all highway funds. Have Justice make some high profile prosections of those illegally voting and taking benefits.

2) Order ICE to deport all those who signed up for DACA.

No non-citizen will trust any future Democrat promise of amnesty, benefits or consequence free voting.

# posted by

Bart DePalma : 6:44 PM

The children are part of his campaign and business.

They're also on his transition team and they're going to run his business while he's pretending to be President.

# posted by

Mark Field : 7:54 PM

Mark, that's not shocking news. The shocking news is that he will be the President on January 20th. Alas, the late Walt Kelly's Pogo is not around to educate us on Trump's "conflakes of inf'rest." It's time for the Pogo riots once again. Once a narcissist, always a narcissist.

Consider Allan Lichtman who in September predicted Trump would become President. Now Lichtman says it will not be for long as he thinks Trump will be impeached during his first term as Republicans would prefer Pence to uphold Republican establishment principles. Trump must be aware of this possibility and might have a plan to thwart such an event. Maybe Senate Democrats would protect him. See:

https://www.washingtonpost.com/news/the-fix/wp/2016/11/11/prediction-professor-who-called-trumps-big-win-also-made-another-forecast-trump-will-be-impeached/

# posted by

Shag from Brookline : 9:07 PM

I think there is a reasonable chance that the Republicans will find a way to live with Trump, especially if he follows their lead on policy. A Trump caucus will develop that will interfere with impeachment and removal too. But, who knows. At the very least, this all would take time & he will have enough time to make life interesting, as they say. As to links, see also:

https://verdict.justia.com/2016/11/11/coming-consequences-litigious-president-elect-trump

# posted by

Joe : 9:55 PM

Joe, that's an interesting article you provide a link to. Who can forget Trump's attack during the campaign on the judge in the Trump U. class action case because the judge, born in America, is of Mexican heritage. There is no Mexican connection to the Trump U. class action case; rather, Trump's tirade was based upon the unrelated opening of his escalator-down campaign with his statements on Mexicans who cross the border into America. A few months back (June2016 issue), The Atlantic had a lengthy feature by Dan P. Adams titled "The Mind of Donald Trump, Narcissism, disagreeableness, grandiosity -a psychologist investigates how Trump's extraordinary personality might shape his possible presidency." I don't have the full URL, but Google it.

As to building that wall that Mexico, he promises, will pay for, it seems that the transition is more focused on a yellow brick road to Wall Street with Republican establishment policy on Dodd-Frank, Consumer Protection Agency, etc.

# posted by

Shag from Brookline : 11:30 PM

Brett:
"4) Abolish early voting, and make Election Day a national holiday."
Or shift voting day to Sunday. Elections should be fun. The USA has internationally low turnout: this one was around 50%. Low turnout makes peculiar and doubtfully legitimate results more likely. Malta gets 94%, and it's not North Korea. Only seven of the 23 countries with turnout over 80% make voting compulsory, so that helps but is not essential.

Early voting is necessary to compensate for the extreme inconvenience of voting in many US precincts. A Sunday or holiday vote would reduce this need, but it it is still there for those travelling, the disabled, etc.

# posted by

James Wimberley : 7:39 AM

Post-election Jekyll & Hyde tweets on post-election protests:

11/10, 9:19 PM "Very unfair."

11/11 morning “Love the fact that the small groups of protesters last night have passion for our great country. We will all come together and be proud."

Will The Donald "unifry" America? Take a peek at the NYTimes list of The Donald's potentials for his Cabinet.

# posted by

Shag from Brookline : 9:42 AM

Are we at war with Eurasia or Eastasia? Keep on forgetting.

# posted by

Joe : 10:03 AM

For the clueless Hillary voter:

Brit leftist comedian Jonathan Pie pretty much nails the election:

https://www.facebook.com/JonathanPieReporter/

# posted by

Bart DePalma : 11:12 AM

The clueless Hillary voters with 2 million more votes than for SPAM I AM!'s fascist candidate? SPAM is trying hard to get off The Donald's enemies list as SPAM is being suffocated by those secondhand DUI fumes that fuel his rural law practice.

# posted by

Shag from Brookline : 11:36 AM

Shag:

Pluralities can be clueless.

It was as if Pie was speaking directly to you.

# posted by

Bart DePalma : 1:48 PM

And those who bring about winning EC results with less than a majority of national popular vote, especially in this instance, are clueless. Yes, SPAM I AM!, a rural lawyer continues to be stalled high in CO, with his record of accusing The Donald of being a fascist. Go back and check, I did not call The Donald a fascist over and over again as did SPAM in his lockstep support of the Cruz Canadacy. Yes, in the eyes of The Donald SPAM is a loser. Why SPAM would even be a loser in Hawaii. SPAM might try a little humble Pie.

By the Bybee [expletives deleted], I wonder how SPAM's mountain top rural community voted compared with overall CO votes.

# posted by

Shag from Brookline : 3:17 PM

As a follow-up to my 9:07 PM comment on Allan Lichtman's impeachment prophecy of The Donald, I wonder if The Donald is thinking back to his infamous 2nd A comment appeal to his base to stop Hillary and how it might be applied to prevent the impeachment scenario. But that could be a two-way street for Pence. Imagine the Trump Administration armed with a lot of "long knives," such as the ones that Politico claims ousted Christie from heading the transition team.

Maybe The Donald should consider Lincoln's team of rivals approach.

# posted by

Shag from Brookline : 3:52 PM

Shag:

I have not changed my views of Trump's fascist campaign.

You might want to do some serious thinking about why Trump won with a fascist campaign.

Thus, my link to the Pie video.

# posted by

Bart DePalma : 3:53 PM

Now that the election is over, does Comey owe it to the American people to comment on Trump campaign Russian connection investigation, especially since a Russian official recently revealed that Russia has had contacts with many in the Trump campaign? Likewise congressional foreign affairs committees. Likewise NASA. There may be national security issues at stake. After January 20th it may be too late.

# posted by

Shag from Brookline : 4:03 PM

I refused to call The Donald a fascist. I refuse to call those who voted for The Donald fascists. I've got a lot of names I have or may call Trump and his supporters.

By the Bybee [expletives deleted], that Russian official disclosure noted in my preceding comment came after the voting was over. But I am curious as to the reactions of The Donald's base to the disclosure.

# posted by

Shag from Brookline : 4:11 PM

As the Trump transition is on the yellow brick road to Wall St., I wonder if Trump voters are familiar with the commercial I recall from XMASes of yesteryear:

"Promise her anything, but giver her Arpege."

(I don't know the slogan for the Trump perfume brand.)

The scent the transition is sending out may differ from the Trump campaign promises.

# posted by

Shag from Brookline : 11:46 AM