I wrote a diary last night about the CA initiative to change the apportionment of presidential electors.
Here's what I understand, about this particular initiative:
Under the proposal, the winner-take-all system would be replaced with one in which the winning presidential candidate in each of California's 53 congressional districts would get one electoral vote, with two additional votes going to the statewide winner.
Doing THAT would allow a minority of voters who vote in heavily Republican, and sparsely populated, areas of CA to claim an estimated 20 of the 55 electoral votes in the next presidential election.
Yes, the NEXT presidential election.
The proposal would be voted on next June if proponents collect the 434,000 signatures required to get it on the ballot. If approved by the state's voters, it would apply to the presidential election that fall.
And from the CA Constitution:
Art 2, Sec 10:
(a) An initiative statute or referendum approved by a
majority of votes thereon takes effect the day after the election
unless the measure provides otherwise. If a referendum petition is
filed against a part of a statute the remainder shall not be delayed
from going into effect.
I've seen, so far, THREE diaries here from organizers attempting to defeat this initiative. Last night, the diary from the organizers reached #1 on the rec list. The previous diary about the issue was on the front page. All of these diaries contained language similar to the canvasser "rap," which I know because I was one. It goes like this:
Here's the problem.
We have a solution.
We have to organize.
We need you to send money, sign a petition, take other action.
I know it. I've done it. But as I said in my previous diary, that approach ISN'T NECESSARY to defeat this initiative. To canvass or mail or phone bank California is an enormous political undertaking. It takes a lot of people, a lot of time, and a lot of money. Without SOMETHING HAPPENING to focus attention and get media coverage and therefore more public discussion through the grapevine, you are shouting against the wind.
I commented on this issue, attached to the other diaries on it. I don't oppose an effort to educate the public on the issue, but it is a meal ticket for activists and nothing more unless you have something else besides the effort currently being proposed by the activists. Something that CAN DEFEAT the initiative effort.
That something, I proposed, is an injunction from a federal court. BEFORE the ballot is printed. The initiative being proposed is unconstitutional, AND is prohibited by CA's constitution.
Before I go on, I want to admit a mistake I made in my previous argument. I said that STATE constitutional law initiatives are prohibited by CA's constitution. That's wrong. They ARE allowed:
CALIFORNIA CONSTITUTION
ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL
SEC. 8. (a) The initiative is the power of the electors to propose
statutes and amendments to the Constitution and to adopt or reject
them.
Notice it doesn't say "amendments to the STATE constitution." That COULD be interpreted to mean that amendments to the FEDERAL constitution can be voted via initiative. However, there is a SPECIFIC METHOD to amend the US constitution, and regardless of what CA's constitution says, that method can't be changed in one state, with one ballot:
Article V
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
Now, my previous understanding of the initiative process (having lived in CA for four years and voted there) was that it was a STATUTORY process and did not involve passing constitutional laws, whether federal or state. Most initiatives ARE statutory. But given what I have read above, that notion seems mistaken.
But, regardless of whether CA allows constitutional laws to be passed by initiative (a bad idea, IMO), the initiative in question here is STILL prohibited by the CA constitution, is STILL unconstitutional with regard to the federal constitution, and STILL proposes to amend the US constitution by an unconstitutional method.
First, let's look at the CA constitution. I'll highlight each relevant part of Article 2.
CALIFORNIA CONSTITUTION
ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL
SEC. 4. The Legislature shall prohibit improper practices that
affect elections and shall provide for the disqualification of
electors while mentally incompetent or imprisoned or on parole for
the conviction of a felony.
Now, this is arguably about the mechanics of the election itself. Here is what I found with regard to STATUTES related to initiatives. Now, what's interesting about this code? The code is almost exclusively pertaining to STATUTORY LAW. The only code I found about constitutional law, SECTION 9000-9015, only states the procedure for putting such an initiative on the ballot. It's not a done deal when the Secretary of State receives the petitions. It goes to the Attorney General after that, and either House of the Legislature can hold hearings on the initiative.
So the Legislature has not enacted specific code to prohibit an initiative that operates outside of the US constitution. Maybe they didn't think that was necessary.
CALIFORNIA CONSTITUTION
ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL
SEC. 5. (a) The Legislature shall provide for primary elections for
partisan offices, including an open presidential primary whereby the
candidates on the ballot are those found by the Secretary of State
to be recognized candidates throughout the nation or throughout
California for the office of President of the United States, and
those whose names are placed on the ballot by petition, but excluding
any candidate who has withdrawn by filing an affidavit of
noncandidacy.
Now, why do you think that this particular clause is in the section on initiatives? In this clause, the CA constitution clearly states that this particular legislative power belongs to the state legislature. So, how would an initiative that changes the way the primary is conducted fare?
I'm not going to dissect Section 8 of Article 2. For the purposes of the debate, only THIS section is relevant:
(e) An initiative measure may not include or exclude any political
subdivision of the State from the application or effect of its
provisions based upon approval or disapproval of the initiative
measure, or based upon the casting of a specified percentage of votes
in favor of the measure, by the electors of that political
subdivision.
Why is that relevant? Because the initiative on apportionment being proposed DOES just what this clause of the CA constitution says an initiative CAN'T DO. The apportionment initiative EXCLUDES the districts who voted in the majority from claiming the electors pledged to the winner of the popular vote, based on the approval of the initiative.
This argument against the apportionment initiative concurs with one of the federal arguments against it: that the STATE LEGISLATURE has already decided the method of apportionment, and it is the winner-take-all method, and the US Constiution does not state that some other process or body shall decide the method of apportionment.
The fact is, that a PROHIBITION against using the initiative in a manner contradictory to the legislatures' enacted, and constitutional method of apportionment IS IN THE CA constitution.
I've already discussed section 10a in my opening. If this initiative passes, it goes into effect for the next presidential election.
Now I'll just briefly reprise the federal arguments, which are the strongest for filing a motion for an injunction from a federal court to keep the initiative off of the ballot.
First,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.
US Constitution
Art 2, Section I
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: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.
Second, as I said above, according to CA statute, the state legislature has already decided the method of appointment for the presidential electors. The proposed initiative process to change that method ISN'T IN THE US CONSTITUTION, and therefore can't be used to change the method that the state legislature has decided upon, because the US constitution specifically delegates that constitutional power to the state legislature.
Third, initiative proponents can argue the "products of the legislature" argument or the "Initiative process DEEMED to be the same as the legislature" argument, but those arguments aren't to be found by reading the US constitution. Nor can you look at the legal definition of a "legislature" and find there the initiative process. An initiative process ISN'T a sitting legislature. It's a process to allow citizens to act as legislators, granted, but the entire state of CA ISN'T a sitting legislature by any reasonable standard.
Fourth, the initiative process can't be the SUBSTITUTE for the process of amending the US constitution, without amending the US constitution to allow THAT. If there IS NO DESCRIPTION of the initiative process in the constitution, AND the constiution specifically delegates the method of deciding the appointment of presidential electors to the state legislature, then the US constitution would have to be amended to allow the initiative process to decide the method of appointment. THAT can't be done using the initiative process because the US constitution doesn't allow THAT method of amending it.
I'll say it in a more simple fashion. A state government can't put an amendment to the US constitution on a popular ballot, pass the amendment, and then declare that it applies to a federal constitutional process (like the presidential election) before the amendment is adopted by the required number of states to amend the US constitution.
Not only that, but CA can't pass an amendment to the US constitution without declaring it to BE an amendment to the US constitution! The initiative folks are proposing a federal constitutional amendment without claiming that it is one.
As I said in my other diary, I'm not a lawyer. But any person who sits down and takes a look at what I have researched for this diary has to agree that there is plenty for a lawyer to dig into on this issue.
My recommendation to the organizers against this initiative is to take these arguments that I propose to a lawyer and get an injunction to stop the initiative from being put on the ballot before it goes to the printer. THAT'S your deadline. NOT JUNE. NOT AFTER THE VOTE.
I'm not suggesting that you let it get a vote and then dicker in court afterwards. I'm suggesting that your efforts to educate the public about the issue would get a lift if you filed a motion for an injunction as soon as the petition campaign is underway. THAT would get the attention in the press you need. Spinning your wheels trying to canvass money to spread the word all over CA without taking legal action to stop the initiative from getting on the ballot is expensive, and time consuming and the effort I suggest will be cheaper and more effective.
