I have just read the THIRD DIARY on the CA electoral apportionment initiative. This time, it's at the top of the recommended list. The last time I commented on this, it was on the front page.
The THIRD TIME someone has come on kos, hat in hand, with a canvasser pitch for us to dole out money to defeat the electoral apportionment initiative, by EDUCATING THE PUBLIC, presumably to vote the initiative down.
And this is the third time I have said: It's NOT NECESSARY.
The apportionment initiative is unconstitutional. It's not constitutional according to the US constitution, and it isn't even constitutional according to the CA constitution.
This initiative could be stopped before the ballot is printed. It doesn't require protests. it doesn't require canvassing. It doesn't require phone banking or a mail campaign or fundraising.
All that it requires is a lawyer who understands the difference between constitutional and statutory law to file a motion in federal court for an injunction.
For those of you who doubt me, take the time to read the California constitution. Particularly Article 2. I've heard the argument that "Initiatives are considered products of the legislature," and it won't stand up in court for a number of reasons.
First, the purpose of the initiative process is statutory. The CA constitution does not confer a constitutional purpose to the initiative process. In fact, constitutional law initiatives are PROHIBITED by CA's constitution. Initiatives can't change the California constitution, and they can't amend the US Constitution.
Second, the US constitution would have to be amended in order to be able to use an initiative process to decide the apportionment of presidential electors, because the US constitution specifically delegates the authority to decide the method of apportionment to the state legislature. As I've already said, the CA Constitution DOES NOT confer the federal or state constitutional powers of the legislature to the initiative process, NOR CAN THE LEGISLATURE DO THAT under the CA constitution. The initiative process is a STATUTORY process. Statutory, as in CA statutes. As in, laws passed under the CA constitution. Not federal constitutional laws. Not state constitutional laws. STATUTORY.
Third, the state legislature HAS ALREADY DECIDED the method of apportionment, and because the US constitution specifically delegates that authority to the state legislature, the initiative process can't be used to change that decision. Not without amending the US constitution. Does the US constitution state that state legislatures or popular initiatives shall decide the method of apportioning presidential electors? It does not. And it won't. Unless the US constitution is amended.
Fourth, the initiative process can't be the SUBSTITUTE for amending the US constitution, without amending the US constitution to allow THAT.
Now, I know that the "conventional wisdom" being spun is that the initiative process creates law that is considered a "product of the legislature," but consider whether that is a sound argument to allow changes to the US constitution by a statutory process.
Any well-funded party can campaign to put any change to the US constitution on a state ballot for a popular vote and declare that hereafter, the US constitution operates differently in that state? It's an absurd argument.
I'm shocked, quite frankly, that leading scholars, instead of examining the issue in light of the fundamental difference between constitutional and statutory law, are parroting the "products of the legislature" argument.
I have to wonder how it is, that people who are constitutional scholars and LAWYERS for cryin' out loud, aren't putting together a rather simple motion for an injunction to stop this thing dead in it's tracks before the ballot is printed.
Have the elites in this country, liberals as well as neocons, decided that the constitution is up for grabs?
Those of you involved in the campaign: If you are dragging this out to rachet up the outrage about it before slapping it down, then I apologize. Nice strategy. But do me a favor and don't wait too long to pull the plug. Don't play chicken with the cliff.