Selecting the President: A Bad Idea Out There in California

[Editor's Note:  A shorter version of this piece, titled For California Voters, a Cure Worse than Ill, was published in the Sunday Opinions section of the Chicago Tribune on September 23, 2007.]

By Robert W. Bennett[*]

[download pdf]

California, like all states but two, chooses its electors in a single statewide winner-take-all contest.  California has been reliably Democratic in recent presidential elections, and the result is that neither major party candidate has seen fit to campaign in the state, despite the fact that, at fifty-five electors, its delegation is the nation’s largest by some measure.  Other populous states with a decided political tilt, like Texas, New York and Illinois, are similarly given short shrift in presidential campaigning.  The large “swing” states like Florida, Pennsylvania, and Ohio get almost all of the general election attention these days from major-party presidential candidates.

The campaign neglect has apparently rankled in California, and the state has become the site of a great deal of reform effort.  The most recent proposal[1] would change California’s winner-take-all approach to the system found in Maine and Nebraska, where all but two of the electors are determined by the popular vote in individual congressional districts.  Maine’s and Nebraska’s use of districting (since the 1972 and 1992 elections, respectively) attracts little attention because those states have small numbers of electors (and, to boot, the districting has never yielded a split electoral college delegation in either state).  A major claim on the website of the organization sponsoring the California move is that this would make the presidential elections in the state more “democratic” by making the process competitive.  While the problem of competitiveness in California and other non-swing states is real, the suggested cure in California—without similar action by other states—is a terrible idea.

A Cautionary Tale: By One Way of Counting the Democrats' Hold on the New House of Representatives Will Be Very Precarious

By Robert W. Bennett[*]

We all know that the Democrats gained a decisive House of Representatives majority in the 2006 election, so that their party will be comfortably in control of that body in the Congress that will convene in early January of 2007.  As of the time I am writing this, the Democrats have clearly won 231 of the 435 House seats for the new Congress, with five races still undecided.[1]  With a majority of that size, we can say with great assuredness that the Democrats will be able to elect the new Speaker and name Chairs for House committees.  That is the sense in which the Democrats will be in control—a very important sense indeed.  When they stick to their partisan guns, moreover, the Democrats will also be able easily to control final votes on legislation.[2] 

But even with party fidelity, the way the votes are to be taken on one matter would put the Democrats in control by the skin of their teeth.  The change in party affiliation—or temporary defection—of just one vote could deprive the Democrats of that bit of "control."  The matter I have in mind will never come before the House that will convene in January, but the precariousness of the Democrats' control in such a count should provide a warning sign for the future—for the Democrats, to be sure, but more importantly, for all of us.

A Dialogue on Originalism Occasioned by Bennett's Electoral College Reform Ain't Easy

By Lawrence B. Solum & Robert W. Bennett

[Editor's Note:  The following piece is an informal dialogue between Professors Solum and Bennett which grew out of Bennett's prior piece on the Colloquy, Electoral College Reform Ain't Easy (click here to read the original piece).  Other readers wishing to participate in this dialogue are invited to submit a piece to the Colloquy Editor, or to leave a comment below.]

Solum:

I recently posted about Bennett's very interesting piece on Legal Theory Blog: Bennett on Electoral College Reform.  My post quoted a long passage, but in this comment I want to focus on the following:

If we took the argument for constitutional protection [of an elector's right to vote contrary to instructions] seriously, we would also have to take seriously other aspects of the original conception of the presidential selection process.  For instance, neither political party designation nor the names of presidential and vice presidential "candidates" could appear on ballots, because that is a way of signaling pre-commitment of electors, rather than a process of debate and discussion that was the reason for creating the electoral college.

My post then commented:

Bennett's argument simply does not follow.  From the fact that the Constitution contemplates that electors can vote free of instruction, it simply does not follow that ballots cannot list candidate names or party affiliations.  There is a tension at the level of rationale, but such tensions are ubiquitous in the law.

Professor Bennett's reply has been posted on Legal Theory Blog (Bennett Replies on Electoral College Reform), and our exchange is cross-posted here on the Colloquy.

Electoral College Reform Ain't Easy

By Robert W. Bennett

At the end of September California's Governor Arnold Schwartzenegger vetoed legislation that would have assigned the state's huge chunk of 55 electoral votes to the winner of the nationwide popular vote—once other states with 215 additional electoral votes were similarly committed.  The total of 270 electoral votes would represent the required electoral college majority and hence seemingly guarantee that the nationwide vote winner would become president.  This would make impossible what happened in 2000—and in two or three other presidential elections over the years—where the electoral college winner lost the nationwide popular vote.

It's not hard to understand the Governor's veto.  Under the legislation, California's electoral votes could go to a candidate who had lost the statewide vote.  A shift of those 55 electoral votes could thus award the presidency to a candidate whom California's voters had rejected, perhaps by a large margin.  Still, there are substantial arguments in favor of the legislation, even from the vantage point of California's self-interest.  California—along with lots of other states—has been quite predictable in recent presidential elections.  As a result, candidates of both major parties campaign very little in the state.  They lavish attention—including campaign promises—on "swing" states instead.  If the nationwide vote determined the outcome, California (and other politically lopsided states) could expect to receive a good deal more attention from candidates of both political parties.