Hank  Adler

Article 2 of the Constitution of the United States allows each state legislature almost unlimited power to direct their electors in casting their electoral votes for President. However, two other articles of the Constitution separately and collectively should trump Article 2 and make an agreement between certain states to circumvent the Constitution and provide for a President elected based upon the national popular vote unconstitutional. First, Article 1 prohibits agreements between States without the consent of Congress. While this clause has been judicially narrowed over time, it is unlikely that it has been narrowed sufficiently not to require Congressional approval of a contract between a few states which causes a change in the political balance of the Electoral College. Second, this "poor man's constitutional amendment" is specifically designed to circumvent the Constitution. Without reservation, its sole purpose is to avoid the constitutionally necessary and unattainable requirement of ratification of this notion by three quarters of the states under Article 5. Under either Article 1 or 5, separately and certainly collectively, the Supreme Court should hold this proposal unconstitutional.

An interesting additional legal question is whether a State legislature could change its mind after a presidential election, but before delegate voting in January. While the proposed agreement prohibits such an action, legislators regularly repeal legislation and there would appear to be no remedy to such an action. One could presume that legislators willing to circumvent the Constitution would be untroubled repealing legislation which produced a result contrary to their goals and objectives.

Should for some reason, this proposal be determined to be constitutional, it should still be abhorrent to anyone interested in providing less opportunity for Presidential elections to be stolen through fraud, to anyone that chooses not to see all presidential elections decided by the Supreme Court, to anyone willing to consider the possibility of multiple and/or regional candidates and to any California legislator who cares about the wishes of Californians.

The geographical incentive for voter fraud and accompanying legal challenges throughout the country would be dramatically enhanced with a national popular vote for President. Today, if polling demonstrates that in State A, Candidate A will win by a safe margin, there is no incentive for voter fraud. Winning by five percent or winning by fifteen percent produces an identical number of electoral votes. "Au contraire" if the Presidential winner is chosen by a national popular vote. The incentive to win by 1,000,000 votes rather than 500,000 might prove too tempting. Regardless of the reality of such fraud, one could anticipate a post election litigation scenario that would make Florida in 2000 look like an inquiry into a parking ticket. One could anticipate contested Presidential election results in every city, county, and State in the country. After the various State courts weighed in with their decisions, it would be likely that a sufficient number of these challenges would appear before the Supreme Court to insure that the President was elected as the result of the Supreme Court's various decisions. While an unintended consequence of this proposal, this would be a very bad result.

The proposal contemplates neither multiple or regional candidates. The proposal further does not contemplate a popular third party candidate emerging in 2008 or thereafter. It is possible that in 2008 or 2012, if both the Democratic and Republican conventions nominate candidates closer to the extremes of both parties that, not only a third, but viable independent fourth and fifth candidates, both regional and national, could emerge for a presidential election. In this scenario, it is certainly not impossible in such a wide field, to have a regional candidate win the popular vote with a small percentage of the national vote, perhaps 30%. This could occur while winning only a few states. Regardless if his or her positions on California issues were contrary to the best interests of California as perceived by California voters and that this "winning" candidate received only a tiny percentage of the California vote, this proposed legislation would require California delegates to vote for a candidate who was totally unacceptable to California voters. No one could believe that the voters of California would want the electors of California to vote for that candidate.

SB 37 in California. A bad idea. No, a very, very bad idea. That any state legislature could be taking actions to approve a "poor man's constitutional amendment" rather than moving forward with a proper constitutional amendment as envisioned by the Founders is unacceptable. That any state legislature would consider ignoring their constituents' votes through their own affirmative action should be reserved for the fiction section of our local libraries.


Hank Adler

Hank Adler is an Assistant Professor at Chapman University.

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