Electoral Vote Initiative Is Unconstitutional

By Thomas Gangale

Never mind the partisanship behind Republican lawyer Tom Hiltachk's so-called Presidential Election Reform Act, an initiative that seeks to peel off about twenty of California's electoral votes to Republican presidential candidates in 2008 and indefinitely into the future. Let's just consider the question, does the US Constitution permit a state to determine via a ballot initiative how to cast its electoral votes?

Article II, Section 1, Clause 2 says in part: "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." The Legislature directs... how does this power devolve upon the voters?

Proponents of the Hiltachk initiative might argue that California's initiative process permits the voters to assume some legislative functions, and that this includes changing the rules about allocating the state's electoral votes. Perhaps the initiative's supporters will say that the state legislature gave citizens the right to "legislate" when it gave them the power to propose and pass ballot initiatives; so in effect, nearly a century ago, the state legislature "directed" a "manner" for appointing presidential electors that contemplated the abdication of this power to the people.

This is tortured logic. The body of citizens is certainly not the state legislature. When the Constitution says "legislature," it means exactly that. The initiative process is not an abdication of legislative power; the legislature still legislates. Rather, the initiative process is an alternative method of enacting law. It is not only outside of the legislative power, it is also outside of the executive power; the governor can veto legislation, but he cannot veto an initiative. Therefore, an initiative is not just another kind of legislation, it is of its own kind. Likewise, when we act as a body of citizens, we are not acting in the capacity of a legislature; we are of our own kind.

The distinction between the body of citizens and the legislature as sources of law goes back 2,500 years to the Roman Republic. There were some types of laws that the Senate could pass, while others required passage by one of the various citizens' assemblies. Hence, SPQR, senatus populusque romanus, the Senate and People of Rome. In the same vein, California's legislature and its body of citizens are two distinct lawmaking entities; they aren't us, and we're not them.

Clearly, the Framers of the Constitution also drew this same distinction between a state's legislature and its people. From the beginning, members of the US House of Representatives have been elected by the people. This is not true of the US Senate. Originally, the Constitution provided for senators to be elected by the legislatures of their states; the Framers created two distinct methods of electing the houses of Congress.

The election of US senators by the people came about as a result of the Seventeenth Amendment in 1913. This transfer of power from legislatures to the people was a very specific reform born of the Progressive Era. To infer that another Progressive Era reform, the initiative process, also transferred the power to appoint electors, is a legal fallacy. If Progressives had intended to transfer such power, they would have stated so explicitly, either in the Seventeenth Amendment or in a companion amendment. They did not.

So, if neither the Framers nor the Progressives intended the people to have the power to direct the manner of appointing electors, the only possible conclusion is that the power does not exist. If enacted, the Hiltachk initiative could not stand legal challenge, and the state attorney general would be forced to waste millions of taxpayer dollars defending a lost cause. Rather than have our pockets picked by Tom Hiltachk, we voters should defeat his initiative at the ballot box. Better yet, don’t sign his petition and keep the initiative off the ballot.