Wednesday, September 06, 2006

California's anti-electoral college law

Thanks to Ginny in my American Politics class for the heads up on this interesting story in the LA Times about a California law that intends to undermine the electoral college. The law would grant California's electoral college vote to the party whose candidate has won the national popular vote. It still has to be signed by Governor Schwarzenegger; also, it would only go into effect if enough states pass similar laws, so that a majority of electoral college votes would depend on the popular vote.

It's a really interesting law. It does not violate the electoral college provision in Article II of the Constitution: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." The Constitution does not state that the electors have to be elected, or that they have to be chosen by a majority of the people of a state. On the other hand, since the 1820s most states have been appointing their electors by popular vote, and even though the text of the Constitution does not require elections in the states, I suspect that most Americans believe that such elections are their constitutional right. It would be interesting to see if such an unwritten constitutional provision would be recognized by the courts (I doubt it). My guess is that Schwarzenegger will veto the law, possibly arguing that it's unconstitutional, and cutting the courts out of the debate.

Another interesting point is the justification of the law. One might have expected laws like this after the 2000 election, when the loser of the popular vote won the electoral college vote. But this is not what motivated the CA lawmakers. Their complaint was that the presidential campaigns ignored their state and instead focused on states with a closer expected outcome. If the national vote counts, they argue, the presidential campaigns have to pay attention to the entire country.

I'm not sure this is true. For example, assume that the national vote clearly tilts towards one candidate. Wouldn't this decrease turnout in the states that go for the other candidate (since only the national vote counts), and wouldn't this mean that the winning candidate (and the loser, too) could ignore the state? This is really just off the top of my head, and one would have to study more carefully what the expected outcomes are. My guess is, however, that nationalizing an election does not make it more likely that the candidates pay more attention to the states.