Fox News' Estrich misrepresented California Democratic electoral vote initiatives

››› ››› MATT GERTZ

In her September 10 FoxNews.com column, Fox News contributor Susan Estrich -- discussing two virtually identical California ballot initiatives backed by Democrats (here and here) that would award the state's electoral votes to the winner of the nationwide popular vote if "states cumulatively possessing a majority of electoral votes have enacted this agreement in substantially the same form" -- asked: "[I]f [Republican presidential candidate] Rudy Giuliani were to win the popular vote, and California could put [Sen.] Hillary [Rodham Clinton (D-NY)] 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." Estrich asserted that the initiatives would lead to "national Republicans going to court to force the California Democratic electors to vote for the Republican candidate," adding that it would cause "precisely the sort of chaos cum-federalism wars which an orderly system of elections is supposed to avoid." In fact, these initiatives would not require California Democratic electors to vote for a Republican candidate or vice-versa, but rather would appoint the slate of electors of the party whose nominee won the national popular vote. Thus, if "Rudy Giuliani were to win the popular vote," the Republican slate of presidential electors would be appointed, not the "Democratic electors of this state."

Both Version 1 and Version 2 of the initiatives, known as the National Popular Vote for President Act, would require the "presidential elector certifying official of each member state [to] certify the appointment in that official's own state of the elector slate nominated in that state in association with the national popular vote winner." From the initiatives:

Article 3. Manner of Appointing Presidential Electors in Member States

Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a "national popular vote total" for each presidential slate.

The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the "national popular vote winner."

The presidential elector certifying official of each member state shall certify the appointment in that official's own state of the elector slate nominated in that state in association with the national popular vote winner.

At least six days before the day fixed by law for the meeting and voting by the presidential electors, each member state shall make a final determination of the number of popular votes cast in the state for each presidential slate and shall communicate an official statement of such determination within 24 hours to the chief election official of each other member state.

The chief election official of each member state shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate made by the day established by federal law for making a state's final determination conclusive as to the counting of electoral votes by Congress.

In event of a tie for the national popular vote winner, the presidential elector certifying official of each member state shall certify the appointment of the elector slate nominated in association with the presidential slate receiving the largest number of popular votes within that official's own state.

If, for any reason, the number of presidential electors nominated in a member state in association with the national popular vote winner is less than or greater than that state's number of electoral votes, the presidential candidate on the presidential slate that has been designated as the national popular vote winner shall have the power to nominate the presidential electors for that state and that state's presidential elector certifying official shall certify the appointment of such nominees.

The chief election official of each member state shall immediately release to the public all vote counts or statements of votes as they are determined or obtained.

This article shall govern the appointment of presidential electors in each member state in any year in which this agreement is, on July 20, in effect in states cumulatively possessing a majority of the electoral votes.

From Estrich's September 10 column:

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.

Posted In
Elections, Election Law
Network/Outlet
Fox News Channel
Person
Susan Estrich
Stories/Interests
California Initiative
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