California Electoral votes (Part 2)

[○∙◄☻¥tπ[╪AV┼cVê└]

The one aspect which I would love to come from this is a third-party ending up with a few EVs because they are strong in a few districts.  That would really screw with the two dinosaur parties.  Heck, it could be the break third-party candidates would need to break onto the national scene as a real force.

I pray to God this does'nt happen.  If it does we Democrats will be shut out of elections for good.

Why?  Clinton wouldn't have needed all of California's EVs in either election, and Carter didn't carry California at all and still won. 

It's easy to forget how unusual the last two elections were. In the last 100 years only 4 elections had a winner with fewer than 300 EV. Wilson 1916 (277-254), Carter 1976 (297-240-1), and the two for GW Bush (271-266-1, 286-251-1). In the large swing of Congressional seats in 2006 I see a return to a pattern that will produce more states shifting than between the last two elections. Without Bush on the ballot new patterns of voting will emerge as they have so commonly in the past. I suspect the winner in 2008 is more likely to have over 330 EV than under 300 EV.

Obviously the Democratic odds at 330+ EV aren't so great if the Republicans get 19 free electors in California.

[cosmo1001]

The US Constitution requires state legislatures to allocate delegates. Thus this initiative if passed is Unconsitutional IMO, and will be struck down. Pity. Granted it won't pass anyway.

What the hell are you talking about?  I guess Maine and Nebraska are unconstitutionally allocating their votes then, huh?  Please, go back and read.

I'd like to go back to the text of the Constitution for a bit and hopefully clear up what I think Torie is getting at:

Article II, Section 1 of the US Constitution reads in pertinent part: "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..."

Note that the text states "in such Manner as the Legislature thereof may direct...".  This could mean that using the initiative process and not legislation to amend the manner in which California appoints its electors may violate the US Constitution.

The Supreme Court has ruled in Hawke v. Smith that a state may delegate legislative powers to the people at large when purely state issues are involved, but when touching on federal constitutional issues (e.g. the manner of appointing electors), the legislature does not equal the people.  The text of the constitution elsewhere differentiates between the people at large and the legislature proper.

I believe, but I haven't been able to find out for sure, that Maine's and Nebraska's Congressional District methods have been put in place by legislation, passed through their respective legislatures.  However, if someone finds to the contrary please tell me.

Hopefully this clears things up, but I may have added to the confusion.  Bottom line is that I lean towards believing that the California initiative may be ruled unconstitutional if it passes.  Only the California legislature itself, and not the people of California, has the power to do what the initiative proposes, IMHO.

[Torie]

Thank you. Well done.

[○∙◄☻¥tπ[╪AV┼cVê└]

The US Constitution requires state legislatures to allocate delegates. Thus this initiative if passed is Unconsitutional IMO, and will be struck down. Pity. Granted it won't pass anyway.

What the hell are you talking about?  I guess Maine and Nebraska are unconstitutionally allocating their votes then, huh?  Please, go back and read.

I'd like to go back to the text of the Constitution for a bit and hopefully clear up what I think Torie is getting at:

Article II, Section 1 of the US Constitution reads in pertinent part: "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..."

Note that the text states "in such Manner as the Legislature thereof may direct...".  This could mean that using the initiative process and not legislation to amend the manner in which California appoints its electors may violate the US Constitution.

The Supreme Court has ruled in Hawke v. Smith that a state may delegate legislative powers to the people at large when purely state issues are involved, but when touching on federal constitutional issues (e.g. the manner of appointing electors), the legislature does not equal the people.  The text of the constitution elsewhere differentiates between the people at large and the legislature proper.

I believe, but I haven't been able to find out for sure, that Maine's and Nebraska's Congressional District methods have been put in place by legislation, passed through their respective legislatures.  However, if someone finds to the contrary please tell me.

Hopefully this clears things up, but I may have added to the confusion.  Bottom line is that I lean towards believing that the California initiative may be ruled unconstitutional if it passes.  Only the California legislature itself, and not the people of California, has the power to do what the initiative proposes, IMHO.

Complicating this is that such a law actually passed the legislature. The only problem was that Arnold vetoed it.

[Undisguised Sockpuppet]

We should apply this to every state which went for bush in 2004.

[Torie]

Actually Arnold I think vetoed the law the had California enter into the US majority vote compact with other states, to take effect when the compact controlled a majority of the electoral votes. That also has Constitutional problems, but I think the legal resolution of this matter is more problematical.

[jimrtex]

The US Constitution requires state legislatures to allocate delegates. Thus this initiative if passed is Unconsitutional IMO, and will be struck down. Pity. Granted it won't pass anyway.

What the hell are you talking about?  I guess Maine and Nebraska are unconstitutionally allocating their votes then, huh?  Please, go back and read.

I'd like to go back to the text of the Constitution for a bit and hopefully clear up what I think Torie is getting at:

Article II, Section 1 of the US Constitution reads in pertinent part: "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..."

Note that the text states "in such Manner as the Legislature thereof may direct...".  This could mean that using the initiative process and not legislation to amend the manner in which California appoints its electors may violate the US Constitution.

The Supreme Court has ruled in Hawke v. Smith that a state may delegate legislative powers to the people at large when purely state issues are involved, but when touching on federal constitutional issues (e.g. the manner of appointing electors), the legislature does not equal the people.  The text of the constitution elsewhere differentiates between the people at large and the legislature proper.

You misunderstand Hawke v Smith.  The State of Ohio had modified its Constitution to include the People in the process of ratifying Federal Constitutional amendments, and was going to hold ratification referendums on the 18th Amendment (Prohibition) and 19th Amendment (Female Suffrage).  The USSC ruled that the power of a state legislature to ratify amendments to the US Constitution was vested in the legislative body of the state, and not in the legislative authority of the state, which might be shared among the executive, the legislature, and the People.

In fact, the USSC cited their own decision four years earlier in Davis v Hilderbrant, where Ohio had involved the People, through the referendum process, in determining the manner in which representatives were elected (a referendum had overturned the congressional districts that the legislature had devised).  In that decision, the USSC had determined that the referendum was part of the legislative authority vested in the States uned Article I, Section 4.

Clearly, the Article II, Section 1 authority to determine the manner in which electors appointed is also vested in the legislative authority and not the legislative body.

[jimrtex]

Complicating this is that such a law actually passed the legislature. The only problem was that Arnold vetoed it.

The authority to determine the manner of appointment of presidential electors is vested in the legislative authority of the states.  The governor through his authority to sign or veto legislation is part of the exercise of legislative authority.

This is unlike the process of ratifying federal constitutional amendments, which is vested in the legislature.  A governor has no formal part in the process of ratifying constitutional amendments.

[cosmo1001]

The US Constitution requires state legislatures to allocate delegates. Thus this initiative if passed is Unconsitutional IMO, and will be struck down. Pity. Granted it won't pass anyway.

What the hell are you talking about?  I guess Maine and Nebraska are unconstitutionally allocating their votes then, huh?  Please, go back and read.

I'd like to go back to the text of the Constitution for a bit and hopefully clear up what I think Torie is getting at:

Article II, Section 1 of the US Constitution reads in pertinent part: "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..."

Note that the text states "in such Manner as the Legislature thereof may direct...".  This could mean that using the initiative process and not legislation to amend the manner in which California appoints its electors may violate the US Constitution.

The Supreme Court has ruled in Hawke v. Smith that a state may delegate legislative powers to the people at large when purely state issues are involved, but when touching on federal constitutional issues (e.g. the manner of appointing electors), the legislature does not equal the people.  The text of the constitution elsewhere differentiates between the people at large and the legislature proper.

You misunderstand Hawke v Smith.  The State of Ohio had modified its Constitution to include the People in the process of ratifying Federal Constitutional amendments, and was going to hold ratification referendums on the 18th Amendment (Prohibition) and 19th Amendment (Female Suffrage).  The USSC ruled that the power of a state legislature to ratify amendments to the US Constitution was vested in the legislative body of the state, and not in the legislative authority of the state, which might be shared among the executive, the legislature, and the People.

In fact, the USSC cited their own decision four years earlier in Davis v Hilderbrant, where Ohio had involved the People, through the referendum process, in determining the manner in which representatives were elected (a referendum had overturned the congressional districts that the legislature had devised).  In that decision, the USSC had determined that the referendum was part of the legislative authority vested in the States uned Article I, Section 4.

Clearly, the Article II, Section 1 authority to determine the manner in which electors appointed is also vested in the legislative authority and not the legislative body.

Ah yes, I see...

That's the last time I get my guidance on constitutional analysis from The Heritage Foundation!! 

http://www.heritage.org/Press/Commentary/ed102604b.cfm
 
I was reading about the National Popular Vote project and the distinction hit me...

If the state is able to act independently regarding the constitutional issue in question, then the issue is a matter of state law and is subject to the legislative process (gubernatorial veto, referenda, initiative, etc.).  On the other hand, if the state is obligated to act in concert, either with other states or with Congress, to address the constitutional issue, then the issue is a matter of federal law and is not subject to the legislative process.

Examples:

-Manner of electing senators and representatives (art 1, sec 4): legislature can act independently to affect (although in this case they are subject to Congressional alteration) and effect will alter state law

-Ratification of constitutional amendments (art 5): legislature cannot act independently to affect (although if two-thirds of state legislatures agree, a convention for proposing amendments will be held) and effect will alter federal law

And...

-Manner of appointing presidential electors (art 2, sec 1): legislature can act independently to affect and effect will alter state law (such as the great state of Maryland has done with the National Interstate Voting Compact)

In my defense, I don't believe that I misinterpreted the distinction made in Hawke v Smith between state issues and federal constitutional issues.  Rather, I used too broad a test for issues to fall under the "federal" category.  The moral of the story: even if an issue is addressed in the federal constitution, it may still be a matter of purely state law.

At least for me, I feel this "independent action/pure state issues" test clearly distinguishes where initiatives and referenda can and cannot legally act on issues outlined in the US Constitution as falling under the perview of the "Legislature".  Can anyone think of constitutional issues that fail my test?

In the end, I suppose that if this Calfornia initiative passes, the California legislature could pass and the governor could sign a bill that changes the manner of appointment of presidential electors back to winner-take-all method.  *shrugs*

Sorry, Torie, I'm now agreeing with Jimrtex on this one.  I think that once the California legislature allows the initiative process to become part of legislative action, then the manner of presidental elector appointment is fair game.

[jimrtex]

In fact, the USSC cited their own decision four years earlier in Davis v Hilderbrant, where Ohio had involved the People, through the referendum process, in determining the manner in which representatives were elected (a referendum had overturned the congressional districts that the legislature had devised).  In that decision, the USSC had determined that the referendum was part of the legislative authority vested in the States uned Article I, Section 4.

Clearly, the Article II, Section 1 authority to determine the manner in which electors appointed is also vested in the legislative authority and not the legislative body.

Ah yes, I see...

That's the last time I get my guidance on constitutional analysis from The Heritage Foundation!! 

http://www.heritage.org/Press/Commentary/ed102604b.cfm

I have sent e-mail to the author, Todd F. Gaziano, requesting clarification.

There is possibly some difference between prescribing the manner of congressional elections and directing the manner of appointment of presidential electors.  But can a Legislature direct in some way other than by passing legislation?   

Davis v Hilderbrant also pointed out that the Congress had deliberately recognized that state action other than legislation might be involved in defining congressional action.   But this might have something to do with the authority of the Congress to override State legislation with regard to Congressional elections.  For example, Congress could require that referendums be used to defined congressional district boundaries, or could require that referendums not be used.

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Hawke v Smith gives some other instances where the Constitution of the United States is referring to the Legislature as a specific body, and not just the authority to legislate:

In article 4 the United States is required to protect every state against domestic violence upon application of the Legislature, or of the executive when the Legislature cannot be convened. Article 6 requires the members of the several Legislatures to be bound by oath, or affirmation, to support the Constitution of the United States. By article 1, section 8, Congress is given exclusive jurisdiction over all places purchased by the consent of the Legislature of the state in which the same shall be. Article 4, section 3, provides that no new states shall be carved out of old states without the consent of the Legislatures of the states concerned.

They also cover the case of the election of senators by the legislature prior to adoption of the 17th Amendment.

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It would appear that Article 2, Section 10, Subsection (c) of the California Constitution restricts a legislative override of an iniative statute.

   (c) The Legislature may amend or repeal referendum statutes.  It
   may amend or repeal an initiative statute by another statute that 
   becomes effective only when approved by the electors unless the
   initiative statute permits amendment or repeal without their
   approval.

I suppose that "may amend or repeal" could be interpreted as being permissive (ie they could refer a new statute to the voters, but are not required to do so), but this isn't consistent with the initiative statute permitting amendment or repeal without voter approval.

[cosmo1001]

In the end, I suppose that if this Calfornia initiative passes, the California legislature could pass and the governor could sign a bill that changes the manner of appointment of presidential electors back to winner-take-all method.  *shrugs*

It would appear that Article 2, Section 10, Subsection (c) of the California Constitution restricts a legislative override of an iniative statute.

   (c) The Legislature may amend or repeal referendum statutes.  It
   may amend or repeal an initiative statute by another statute that 
   becomes effective only when approved by the electors unless the
   initiative statute permits amendment or repeal without their
   approval.

I suppose that "may amend or repeal" could be interpreted as being permissive (ie they could refer a new statute to the voters, but are not required to do so), but this isn't consistent with the initiative statute permitting amendment or repeal without voter approval.

Very interesting....so it would be that if the initiative passes, the California legislature could amend the manner in which presidential electors are appointed, but it would be an automatic referendum, at that point.  As we have discussed, I guess this would be constitutional under Davis v Hildebrant because the legislature would retain the ability to initially decide the manner in which electors are appointed at any time....but they would have to receive the approval of the people, just like any other California state law. 

If I read the statute above correctly, once an issue is addressed in an initiative, the people retain final authority over that issue forever after.  In short, the ultimate power to determine the manner in which electors are appointed would be permanently transfered from the California legislature to the people of California.  In truth, this situation seems contrary to the spirit of art 2, sec 1, in my humble opinion, to vest state legislatures (the bodies themselves) with this power, but if this is how the California constitution is written and determining the manner of appointing presidential electors is a matter of state law as we decided, then the state of California has the right to determine its lawmaking process on this and other issues, as SCOTUS has stated many times.  *sigh*   

[○∙◄☻¥tπ[╪AV┼cVê└]

By lying to the voters about what they were signing, it looks like they will get enough signatures to get this utter garbage on the ballot after all.

[○∙◄☻¥tπ[╪AV┼cVê└]

Failed to qualify.

[Хahar 🤔]

Failed to qualify.

[Erc]

Failed to qualify.

Thank goodness.

[Kaine for Senate '18]

Failed to qualify.

PRAISE THE LORD

[Stranger in a strange land]

Failed to qualify.

WOOHOO!!!!

I'm against the electoral college, but this is just a blatant power grab by the Republicans.