Constitutional Calvinball in California

Constitutional Calvinball in California

In the comic strip Calvin & Hobbes, a 6-year-old named Calvin and his stuffed tiger, Hobbes, regularly play a game called Calvinball, in which the players make up the rules as they go along. According to Calvin, “The only permanent rule in Calvinball is that you can't play it the same way twice.” Players alter rules throughout the game in a constant effort to gain an advantage.

The game, Calvin once observed, “lends itself to certain abuses.”

Some similar abuses may play out in California in the coming months.

The current national political landscape appears to be something less than hospitable for Republicans. For example, as Open Left's Chris Bowers noted this week, state-by-state polling suggests that if the presidential election were held today, the Democratic front-runner would easily defeat either of the two leading Republicans, winning 335 electoral votes against Rudy Giuliani and a whopping 430 against Mitt Romney. The biggest electoral prize, California, has 54 of the 270 electoral votes necessary to win; the Democratic candidate has carried California in the past four presidential elections, and seems likely to do so in 2008.

But Republican operatives have launched an effort to declare a new rule in the middle of the contest -- a rule that, conveniently, would give their party a tremendous advantage.

Thomas Hiltachk, a lawyer at the firm that represents the California Republican Party, has written a ballot initiative that, if successful, would divide California's electoral votes between the candidates, awarding one electoral vote for each congressional district won, plus two more electoral votes for carrying the state. The likely impact of such a change would be to give the Republican presidential nominee about 20 more electoral votes and the Democratic nominee about 20 fewer -- more than enough to decide the election, and enough that the Democrat would need to win Ohio in addition to all of the states John Kerry won just to break even.

What makes the plan particularly devious is that it would affect only California. A sizable number of electoral votes would be shifted from the Democratic candidate to the Republican candidate -- but large Republican-leaning states like Texas would continue to award all of their electoral votes to the statewide winner. In short, in the largest Democratic-leaning state, the new system would award a significant number of electoral votes to the loser of the state, while the largest Republican-leaning states would continue to award all of their votes to the winner.

Perhaps worst of all, California voters won't even decide on the initiative until next June, yet the change would take effect for the 2008 presidential election. If the Republican operatives get their way, the rules of the 2008 presidential election will undergo a dramatic change, to the benefit of the Republican candidate, just five months before Election Day, and after the parties and candidates have spent years basing their strategic planning on the old rules.

There are, in short, very few things more significant to the outcome of next year's presidential election than this California ballot initiative. It is, then, vitally important that the media thoroughly, accurately, and fairly cover this fight -- and not just the California media -- the national media as well. The initiative may appear only on the California ballot, but it will impact the entire nation, and the campaigns for and against it will no doubt be waged with the help of national donors, activists, and operatives.

The initiative is beginning to draw significant media attention, but much of that coverage has been lacking.

In California, The Sacramento Bee's Dan Walters -- whose column runs in more than 50 California newspapers and who is the founding editor of the California Political Almanac -- has declared the GOP proposal to be a “fairer” approach than a competing proposal that would award all of California's electoral votes to the candidate who won the most votes nationwide. Walters wrote of that competing proposal: “It is, however, a flawed approach at best and could result in all of California's votes being cast for someone that the state's voters had rejected. If the electoral system is undemocratically flawed, it should be dumped and we should go to straight popular vote.”

But Walters left out a key element of the competing proposal, and in doing so badly misled his readers. The proposal would take effect only if California was joined by enough states to total 270 electoral votes, which would guarantee that the winner of the national popular vote was elected president. In effect, it does dump the Electoral College in favor of “straight popular vote” -- precisely what Walters complained it does not do. Yet Walters declared the Republican scheme to be “fairer” than both the alternative proposal and the current system.

Let's recap:

Current system: California awards its electoral votes to the candidate most Californians vote for. California uses the same rules as 47 other states. It conducts the 2008 election under the rules that have been in place since the beginning of the election cycle -- and, indeed, since California became a state.

GOP proposal: California's electoral votes would be divided among the candidates. The state uses a system that is different than that of 47 other states. California abruptly changes the rules just five months before Election Day.

Alternate proposal: California awards all of its electoral votes to candidate who garners the most votes nationwide -- but only if it is joined by enough other states to total 270 votes. Otherwise, California proceeds under the current system.

Dan Walters thinks the GOP proposal is the most fair of the three.

CNN senior political analyst Bill Schneider agreed this week, declaring that "[d]ividing the state's electoral votes sounds fairer" than the current system. “Sounds fairer” is such a subjective statement that it seems odd to declare it “wrong.” But it's wrong. Very wrong.

It “sounds fairer” only if you think that a last-minute rule change that affects only the largest Democratic-leaning state, and does so in a way that benefits Republicans, “sounds fair.” Such a unilateral change is self-evidently unfair.

And yet, as Schneider noted, the Field Poll “shows California voters inclined to pass the measure.” In support of his statement, CNN ran a graphic showing that the poll found that 47 percent of California voters favor the initiative, while 35 percent oppose it.

That very same poll included another question in which respondents were told that the change would likely result in Republicans winning some of California's electoral votes. That question found a narrower margin in favor of the proposal. Having declared that the initiative “sounds fairer” than the current system, Schneider cherry-picked polling data to validate his position. That doesn't sound particularly fair, does it?

The approach Walters and Schneider have taken -- flatly declaring a transparently unfair proposal to be fair, while offering misleading and incomplete reports that buttress that contention -- is obviously less than ideal.

Instead, journalists should substantively address several key elements of the initiative battle:

Effect on California's influence: With 54 electoral votes, California currently has 21 more than any other state, and the largest say in presidential elections -- a fitting distinction for the state with, by far, the most residents. Under the GOP scheme, the candidate who wins California would likely get about 15 more electoral votes than the loser, making the state's net impact roughly equal to that of New Jersey -- and less than half that of Texas, which has nearly 15 million fewer residents.

Changing the rules mid-campaign: Even California's Republican governor, Arnold Schwarzenegger, has acknowledged the unfairness of changing the election rules five months before Election Day. Schwarzenegger has said of the GOP vote-splitting scheme: “In principle, I don't like to change the rules in the middle of the game.”

Effect on presidential election process: California unilaterally dividing its electoral votes would have the effect of making it more likely that the candidate who gets fewer votes in California becomes president. That is not conjecture; it is inherent to the plan, and it should be made clear in news reports.

Reform alternatives: The current Electoral College system has detractors at both ends of the ideological spectrum. One reason is obvious: In 2000, the Republican presidential candidate became president despite losing the national popular vote; four years later, the Democratic candidate nearly became president despite losing the national popular vote. News reports should make clear that there are reform proposals that would ensure that the winner of the national popular vote becomes president, without diluting California's influence or rigging the system in favor of the candidate who receives fewer votes from Californians. (As usual, Fox News provides useful examples of how not to handle the situation -- the cable channel this week identified one of the operatives behind the GOP scheme as "pro-reform" and falsely reported that alternative proposals would "protect the current process.")

Partisan backers: News reports should be precise and neutral in describing those behind the GOP ballot initiative. “Reformers” is not an appropriate term, as that suggests the initiative is a good thing and is being done for altruistic reasons. The backers are Republicans and should be described as such. In addition to Hiltachk, those behind the initiative include Marty Wilson, a Republican political operative who is a member of John McCain's California Finance Committee, and GOP strategist Kevin Eckery.

Enterprising reporters might also report that this is merely the latest in a series of Calvinball tactics by the conservatives. Marty Wilson's dual involvement in both the electoral vote initiative and John McCain's presidential campaign not only provides evidence for the notion that the initiative is little more than a cynical ploy to rig the election, it also serves as a reminder of McCain's history of trying to change campaign rules in ways that seemed to benefit him. In March of 2006, I detailed McCain's history of promoting campaign finance “reforms,” some of which seemed to contradict each other, but which were consistently seen as benefiting Republicans.

Then there's Tom DeLay's re-redistricting effort, in which Texas Republicans, unsatisfied with the results of the first redistricting after the 2000 census, forced through an unusual second redistricting plan in an effort to gain more congressional seats.

And who can forget the contested 2000 election, in which Republicans argued against counting all legally cast ballots for which the voter's intention could be determined -- but successfully argued in favor of counting absentee ballots that were assumed to contain more votes for George W. Bush, but which were received after the legal deadline? That election was resolved in Bush's favor as a result of a quintessential Calvinball maneuver -- the Supreme Court, in a 5-4 decision, declared Bush the winner, but insisted that its ruling did not constitute a precedent.

Remember: “The only permanent rule in Calvinball is that you can't play it the same way twice.”

There is a widespread belief that America is in urgent need of changes in the way we conduct elections, if not consensus about what those changes should be. Elimination of the Electoral College, public financing of elections, an elimination of contribution limits in favor of immediate disclosure of donors, and countless other proposals have support from a diverse array of Americans. Some of those proposals might, if enacted, actually lead to a more representative and responsive government.

But there is real danger in impetuously changing the way we choose presidents, particularly if the changes in question are more likely to produce partisan advantage than structural fairness.

California's fight over allotting electoral votes is a gravely serious matter and must be treated as such by the media. A change such as that being promoted in California has the potential to, all by itself, determine the victor of the 2008 presidential election. Such a change should only be made after careful consideration of all relevant factors -- the effect the change would have on California's influence, the presidential election system as a whole, the timing of the change, and the motives of those on each side of the debate.

These questions demand serious, thorough treatment by the media, not superficial declarations that something “sounds fair” or that one side is “pro-reform.”

Jamison Foser is Executive Vice President at Media Matters for America.