Today, Community Rights Counsel’s Executive Director Doug Kendall published an opinion piece in Slate which argues that the attempt by California Republicans to use the ballot initiative process to trump the California Legislature’s proposed manner of allocating the state’s 55 Electoral College votes is unconstitutional. Given the stakes, which could include the outcome of the 2008 election, we expect our conclusion to be hotly contested. This memorandum fleshes out the constitutional argument made in Slate and responds to the arguments made to date by those who support using initiatives to determine how to appoint federal electors.
Factual Background
The Presidential Election Reform Act is a ballot initiative proposed for submission to California voters in June 2008. If the supporters of this initiative gather the necessary signatures, state voters approve the initiative, and the initiative survives a court challenge, the initiative would scrap California’s current “winner-take-all” allocation of its 55 Electoral College votes, and appoint most of the state’s electors based on the popular votes in the state’s 53 congressional districts. Assuming past voting trends hold (Bush won 22 of California’s congressional districts in 2004), this would shift approximately 20 electoral votes into the red column, enough to determine the outcome of a close election.
This is not the first time an effort has been launched to reallocate electors via the initiative process. A similar initiative was placed on the Colorado ballot (with the support of many Colorado Democrats) in November 2004. That initiative could have divided the state’s nine electors and possibly changed the outcome of the 2004 election, but it was defeated by Colorado voters. The U.S. Supreme Court has never answered the specific question of whether a ballot initiative can be used to trump a state legislature’s desired allocation of a state’s electors.
Constitutional Question
Article II, section 1, clause 2 of the U.S. Constitution (Art. II, §1) states:
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 to in the Congress . . . .
The Constitution’s use of the term “legislature” raises the following constitutional question: Can a ballot initiative be used to trump the manner of appointment chosen by the California legislature?
The Presidential Election Reform Act Violates the Plain Text of the Constitution and Cannot be Reconciled with Long-Settled Supreme Court Precedent.
The argument that the Presidential Election Reform Act is unconstitutional is simple and straightforward. The Constitution says that electors are to be appointed in a manner chosen by the “legislature[s]” of the several states. The Act, if upheld, would allow voters to override the decision of the California legislature, and this is flatly prohibited by the text of the Constitution.
This plain language reading of Art. II, §1 is supported by well-settled Supreme Court case law, and, in particular, the Supreme Court’s unanimous rulings in McPherson v. Blacker, 146 U.S. 1 (1897) and Hawke v. Smith, 253 U.S. 221 (1920).
McPherson v. Blacker
McPherson v. Blacker involved a challenge to a district-by-district plan for allocating electors (similar to the one proposed by California Republicans) that was adopted by the Michigan legislature shortly before the 1892 Presidential election. McPherson and other potential electors challenged this plan on the basis that it denied Michigan voters the opportunity to vote for the entire slate of Michigan electors.
The McPherson Court denied this challenge, holding that state legislatures have broad authority under Art. II, §I to choose the manner of appointment of electors:
The Constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature and leaves it to the legislature exclusively to define the method of effecting the object. 146 U.S. at 27.
The Court explained that the framers used the word “appoint” to give state legislatures “the broadest power of determination” in choosing the method of allocating electors. Id. This was a result of a hard-fought battle among the framers, some of whom wanted state legislators to select electors, others of whom wanted election by the people. The result chosen, which gives power to the state legislatures to pick the “manner of appointment,” leaves both options open. In the Court’s words, state legislatures may “appoint [electors] directly by joint ballot or concurrent separate action, or through popular election by districts or by general ticket, or as otherwise might be directed.” Id. at 28.
The Court ruled that Art. II, §1 gives “plenary power to the state legislatures in the matter of the appointment of electors,” and, in support, cited affirmatively this passage of an 1874 Senate report:
The appointment of these electors is thus placed absolutely and wholly with the legislatures of the several states. They may be chosen by the legislature, or the legislature may provide that they shall be elected by the people of the state at large, or in districts, as are members of congress, which was the case formerly in many states; and it is no doubt competent for the legislature to authorize the governor, or the supreme court of the state, or any other agent of its will, to appoint these electors. This power is conferred upon the legislatures of the states by the constitution of the United States, and cannot be taken from them or modified by their state constitutions any more than can their power to elect senators of the United States. Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated. Senate Rep. 1 st Sess. 43d Cong. No. 395. (italics added). Id. at 34-35
McPherson stands for the proposition that state legislatures have broad authority to choose how federal electors are appointed. Certainly, employing this plenary authority the California legislature could choose to allocate the state’s electors on a district-by-district basis, if they so desired. But by labeling the power of state legislatures “plenary,” and by citing affirmatively to the Senate report, which indicates that this power cannot be limited by the state constitution and statutes, McPherson appears to rule out a ballot initiative that trumps the manner of elector appointment chosen by the legislature.
Hawke v. Smith
The Supreme Court’s ruling in Hawke v. Smith provides equally strong support for the proposition that ballot initiatives cannot be used to override the manner of elector appointment chosen by a state legislature. Hawke dealt with the identical question (can a ballot initiative trump the decision of the state legislature?) in a closely analogous context (Article V, which requires ratification of constitutional amendments by the “legislatures of three-fourths of the several states”).
In 1919, in the midst of the Prohibition Era, the Ohio legislature ratified the 18 th Amendment, which barred the sale and distribution of liquor. Thereafter, the state’s voters attempted to overturn this ratification via a ballot initiative. The Ohio Constitution specifically permitted ballot initiatives on the ratification of federal constitutional amendments, and the question that reached the U.S. Supreme Court in Hawke was whether the U.S. Constitution, which vests the ratification power in the state “legislatures,” prohibited this alternative method of ratification.
The Hawke Court held that ballot initiatives could not be used in this context. The meaning of Article V, the Court held, was “plain, and admits of no doubt in its interpretation.” While “the framers of the Constitution might have adopted a different method” and could have left ratification to “a vote of the people,” the Framers “adopted a different method.” “It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed.” Id. at 227
Then the Court got to the specific question of the meaning of the term “legislature”:
The only question really for determination is: What did the framers of the Constitution mean in requiring ratification by “Legislatures”? That was not a term of uncertain meaning when incorporated into the Constitution. What it meant when adopted it still means for the purpose of interpretation. A Legislature was then the representative body which made the laws of the people. The term is often used in the Constitution with this evident meaning.
* * *
There can be no question that the framers of the Constitution clearly understood and carefully used the terms in which that instrument referred to the action of the legislatures of the States. When they intended that direct action by the people should be had they were no less accurate in the use of apt phraseology to carry out such purpose. The members of the House of Representatives were required to be chosen by the people of the several States. Article I, §2. Id. at 227-28.
The Court also made analogy to Article I, §3 of the Constitution, which before the adoption of the 17 th Amendment provided that senators shall be chosen in each state “by the legislature thereof.” The very fact that an amendment was deemed necessary to change this procedure was viewed by the Court as determinative:
It was never suggested, so far as we are aware, that the purpose of making the office of Senator elective by the people could be accomplished by a referendum vote. The necessity of the amendment to accomplish the purpose of popular election is shown in the adoption of the amendment. Id.
The Court also highlighted the portion of the 17 th Amendment that granted state legislatures the ability to authorize state governors to temporarily fill a Senate vacancy in the period before the people can fill a vacancy by election. This, the Court concluded, demonstrated “that Congress and the States understood that this election by the people was entirely distinct from legislative action.” Id.
Finally, the Hawke Court took on the argument that the Ohio Legislature had to act through the procedures for ratifying a federal constitutional amendment set out in the state’s constitution. The Court rejected this argument, concluding that “The power to ratify a proposed amendment to the Federal Constitution has its source in the Federal Constitution. The act of ratification by the State derives its authority from the Federal Constitution to which the State and its people have alike assented.” Id. at 230. This passage clearly echoes and reinforces the passage of the 1874 Senate Report (highlighted above) cited affirmatively by the Court in McPherson v. Blacker. (1)
The plain text of Art. II, §1, coupled with the Court’s unanimous rulings in McPherson and Hawke, makes a devastating case against the constitutionality of the Presidential Election Reform Act. Having laid out this powerful case, this memo now turns to an analysis of the counterarguments articulated to date by proponents of using initiatives to choose the manner of appointing electors.
The Arguments Made to Date in Defense of the Use of Ballot Initiatives toTrump the Manner of Appointment Chosen by The California Legislature are Unpersuasive.
The California Republicans supporting the Presidential Election Reform Act have not yet publicly produced a defense of the constitutionality of the ballot measure. But their arguments can be anticipated based on a detailed argument in favor of the use of ballot measures to appoint electors made by the proponents of what is being called the National Popular Vote Bill. This bill – which seeks a compact among states with more than 270 electors to award all of the joining states’ electors to the winner of the national popular vote for president – is not dependent upon ballot measures for its success. The compact could be completed based solely on the action of state legislatures, but the supporters of this proposal appear to believe that the use of ballot measures in support of the Bill is important to its ultimate success, and they have defended the approach in a book written in support of this proposal (see Every Vote Counts: A State-Based Plan for Electing the President by National Popular Vote, Chapter 8.3, available at http://www.every-vote-equal.com/pdf/EVE-CH-8.pdf). While spirited and well-presented, these arguments are quite unpersuasive.
The most straightforward version of the argument is this: The Supreme Court has permitted the use of ballot measures to overrule the decisions of state legislatures regarding the time, place, and manner of holding elections for members of the House of Representatives and by analogy, the Court will/should permit the use of ballot initiatives to trump state legislatures in the appointment of electors.
While it is true that in Davis v. Hildebrant, 241 U. S. 565 (1916), the Supreme Court interpreted Art. I, §4 of the Constitution to permit the use of ballot measures in prescribing rules for elections for members of the House of Representatives, the constitutional provision at issue in Hildebrant is quite different than the portion of Art. II controlling the appointment of electors. Art. I, §4 states:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. (Italics added)
In giving Congress the power to “make or alter” the regulations produced by state legislatures, the Constitution makes clear that, in this context, the power of state legislatures is not plenary and can be limited and restricted by acts of Congress. And in Hildebrant, the Supreme Court held that Congress had done precisely that – it had restricted the power of state legislatures by specifically authorizing the use of ballot initiatives in prescribing rules for House elections. 241 U.S. at 568-569. For this precise reason, the Supreme Court in Hawke v. Smith ruled that the decision in Hildebrant was “inapposite” to the question of whether ballot measures could be used to trump the decision of a state legislature in the context of Article V. According to the Hawke Court:
But it is said this view runs counter to the decision of this court in Davis v. Hildebrant, 241 U.S. 565. But that case is inapposite. It dealt with article 1 section 4, of the Constitution, which provides that the times, places, and manners of holding elections for Senators and Representatives in each state shall be determined by the respective Legislatures thereof, but that Congress may at any time make or alter such regulations, except as to the place for choosing Senators. As shown in the opinion in that case, Congress had itself recognized the referendum as part of the legislative authority of the state for the purpose stated. 253 U.S. at 230-231.
Hildebrant is not just easily distinguishable from cases in which state legislative authority is made plenary by the Constitution, it has been distinguished precisely on these grounds by the Court in Hawke, a binding, unanimous opinion.
A more sophisticated argument in favor of using ballot measures to appoint electors is rooted in a 1932 case called Smiley v. Holm, 285 U.S. 355 (1932). The Smiley Court again addressed Art. I, §4 (the same provision at issue in Hildebrant), and in Smiley the Court ruled that regulations of the time, place, and manner for House elections, passed by the Minnesota legislature, had to be presented to the Minnesota governor for signature.
The Smiley Court focused on the “function” assigned by the Constitution to the state legislature. The Court noted that the Constitution requires state legislatures to perform a number of different functions:
The Legislature may act as an electoral body, as in the choice of United States Senators under article 1, 3, prior to the adoption of the Seventeenth Amendment. It may act as a ratifying body, as in the case of proposed amendments to the Constitution under article 5. Hawke v. Smith, 253 U.S. 231; Leser v. Garnett, 258 U.S. 130, 137. It may act as a consenting body, as in relation to the acquisition of lands by the United States under article 1, 8, par. 17. Id. at 365-66.
In Smiley, the Court ruled that Art. I, §4 required state Legislatures to function in a legislative capacity, prescribing “a complete code for congressional elections.” Id. at 366. Because the function assigned to the state legislature was a legislative one, the court ruled that regulations produced by state legislatures under that Constitutional provision had to be submitted to the state executive for signature:
As the authority is conferred for the purpose of making laws for the state, it follows, in the absence of an indication of a contrary intent, that the exercise of the authority must be in accordance with the method which the state has prescribed for legislative enactments. Id. at 367.
The argument made by proponents of the use of initiatives, based on Smiley is that (1) the function performed by state legislatures under Art. II, §1 (appointing electors) is legislative, like the function assigned by Art. I, §4, and (2) correspondingly, electors can be appointed in any manner (including a ballot measure where approved by the state) authorized by the state for legislative enactments.
There are major problems with both parts of this argument. First, it is wrong to equate the “plenary” authority delegated to states in appointing electors under Art. II, §1 to the legislative functions delegated by Art. I, §4. The Constitution mandates that members of the House of Representatives are to be elected “by the people of the several states.” In that context, the state legislature’s function is limited to producing an election code – the legislature cannot take for itself the power to elect representatives. As McPherson v. Blacker makes abundantly clear, the state legislature’s role in appointing electors is different because it includes the authority to actually choose who will serve. This discretionary and plenary power of appointment is thus closer to the ratification role state legislatures play in the Article V context, where the state legislature is acting as a decision maker, not a rule setter. Perhaps the best analogy is to the “elective” function of choosing U.S. Senators delegated to state legislatures in Art. I, §3, prior to the passage of the 17 th Amendment. (2)
Thus a court applying Smiley’s functional analysis would first have to characterize the function performed by the state legislature under Art. II, §1. No matter what label the court decides on, the ultimate question would remain: does the Constitution permit a ballot initiative to trump the decision of the legislature in this context? As discussed above, the Supreme Court has only once (in Hildebrant) allowed a ballot initiative to trump the decision by a state legislature acting pursuant to a constitutional grant of authority, and the context there was very different.
It seems entirely correct for the Court to have held in Smiley that when the Constitution grants law-making authority to a state legislature the normal process (executive veto, judicial review, etc) should be followed. It is a much greater stretch and far more objectionable for a court to endorse a state lawmaking process such as a ballot initiative that ignores or trumps the decisions of the state legislature (particularly when the Constitution grants plenary authority to that body). As the Court made clear in Hawke, the framers knew that “election by the people was entirely distinct from legislative action.” To allow a ballot initiative to trump the decision of a state legislature would disregard the plain terms and clear intent of the Framers. It seems unlikely that any Supreme Court justice would countenance such a result. (3)
How Should Presidents be Chosen?
The foregoing analysis is one of constitutional law, not policy. It does not reflect any judgment about the wisdom of the “district-by-district” appointment of electors promoted by the Presidential Election Reform Act. Indeed, no less an authority than James Madison appears to have endorsed a system of voting for electors by district as “the most equitable” and “that system which was contemplated by the framers of the Constitution.” McPherson v. Blacker, 146 U.S. 1, 29 (1892). Nebraska and Maine already have district-by-district appointment procedures in place and we have no objection if other state legislatures wish to join these states. We also have no objection to the efforts of the supporters of the National Popular Vote Bill to promote a system whereby the presidential candidate receiving the most votes nationally wins. What we object to is the use of plainly unconstitutional means – the ballot initiative – to this end. The ends do not always justify the means, most certainly not when the means are flatly prohibited by the Constitution.
