LOS ANGELES – You know the old saying: if you can’t beat em, change the rules. That’s the new motto of the California Republican Party. Taking a break from complaining about their governor, who as usual is right where they’re wrong, and who is also, not coincidentally, the only Republican in state-wide office in California, they’ve decided to try to change the rules for electing the next president to make it more difficult for a Democrat to win.
Under the current system, all of a state’s electoral votes are apportioned to the candidate who wins the state. It doesn’t matter if you win by a little or by a lot, you still get the votes, which is part of the reason the guy who is sitting in the White House right now managed to lose the popular vote and win the electoral vote back in 2000-- with a little help from his friends on the Court, of course.
That particular anomaly has some California Democrats trying to frame an initiative that would have the state cast its electoral votes for the winner of the popular vote, regardless of who actually carries the state, at least if enough other states go along. The idea is that if enough states bought in to amount collectively to the 270 votes needed to win, you’d effectively eliminate the electoral college, which many people, particularly those who live in big states, think would be a good idea.
Whether that would be a constitutional way to accomplish it or not is an open question that probably won’t be litigated anytime soon, since getting any small states or Republican legislatures to sign on would be about as easy as getting them to agree to a more straightforward constitutional amendment to eliminate the electoral college.
Would anyone ever go to Wyoming or Idaho if all that counted were the popular vote? For that matter, if Rudy Giuliani were to win the popular vote, and California could put Hillary over the top in electoral votes by following the majority in the state and casting all their votes for her, do you really think the Democratic electors of this state would feel bound to vote for Rudy? I wouldn’t bet on it.
Of course, as a lawyer, and one who teaches election law to boot, the idea of the national Republicans going to court to force the California Democratic electors to vote for the Republican candidate does suggest unlimited future employment opportunities for types like me, but it also suggests precisely the sort of chaos cum-federalism wars which an orderly system of elections is supposed to avoid.
The truth is that most Democrats are less interested, or less optimistic, and certainly less worried, about the prospects of eliminating the electoral college than they are about the more doable and more dangerous idea being propounded as an initiative by the Republican party.
The Republican idea sounds simple: apportion electoral votes by congressional district, so that each candidate in California’s 53 congressional districts would get one vote for every district he or she won. The other two votes, representing the two Senators, would go to the state-wide winner. In practice, that means that last time around, instead of winning all 55 of California’s electoral votes, John Kerry would have won 33 and George Bush 22, more than he won in Ohio (20) and almost as many as Florida (27). Since Democrats have carried California in the last four elections, and since carrying California is pretty much essential to the arithmetic of a Democratic victory, the Republican proposal is aimed at ensuring that the Republican candidate wins.
In California, 19 districts are represented by Republicans; only 7 states in the country have more electoral votes than that. What that means, in practice, is that even if Hillary were to win Ohio or Florida, either of which would have put John Kerry over the top, she would lose. That is, dare I suggest, the whole idea.
The proponents of this measure point out that two states, Nebraska and Maine, already allocate their electoral votes this way, although neither has ever been in a position to split their votes as a result. But Maine and Nebraska have a collective total of 9 electoral votes between them; last time, Maine’s 4 went to Kerry and Nebraska’s 5 to Bush; neither state plays the decisive role California does.
The Republican initiative has now passed its first hurdle, which is approval by the Secretary of State. The next step to getting on the June ballot is collecting 400,000 plus signatures, which, given the realities of how signatures are collected in this state (you hire people, and pay them per signature, and with enough money, you get enough signatures) could cost somewhere in the neighborhood of $1-to-2 million, which isn’t that much to pay for the presidency. That’s why Democratic Party chairman Howard Dean is already attacking the initiative, and California Democratic Sen. Barbara Boxer has decried it as a “Swift Boat type of initiative” and “an old-fashioned backdoor power grab to keep the presidency in Republican hands."
She points out, rightly, that the decision to put it on the June ballot, when there will be a low turnout, as opposed to the high turnout February presidential primary ballot, is a sign that its supporters know what they’re doing.
Public opinion polls show California voters favorably disposed to supporting the initiative, at least when they hear about it from pollsters in an atmosphere where it has yet to be politicized. Gov. Schwarzenegger isn’t so sure: asked this week where he stands, he said “It sounds to me a little bit like a loser's mentality. That's kind of saying, we're going to lose if we don't change the rules. Or the only way we're going to win is if we change the rules. So what is that all about? That seems a bit odd.”
That’s exactly what it’s saying. And Schwarzenegger’s willingness to tell it like it is, even at the expense of his own party’s tricksters, is the reason they don’t like him, and most everyone else in California does.
Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was Professor of Law at Harvard Law School and the first woman President of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.
Estrich's books include the just published “Soulless,” “The Case for Hillary Clinton,” “How to Get Into Law School,” “Sex & Power,” “Real Rape,” “Getting Away with Murder: How Politics Is Destroying the Criminal Justice System” and "Making the Case for Yourself: A Diet Book for Smart Women.”
She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the “Blue Streak” column for FOXNews.com.