Changing the Rules

Susan Estrich doesn’t approve of a proposal in Californiato change the divying of the state’s electoral system from winner-take-all to each Congressional district having one elector. Writes Estrich:

You know the old saying: if you can’t beat em, change the rules. That’s the new motto of the California Republican Party. Taking a break from complaining about their governor, who as usual is right where they’re wrong, and who is also, not coincidentally, the only Republican in state-wide office in California, they’ve decided to try to change the rules for electing the next president to make it more difficult for a Democrat to win.

Under the current system, all of a state’s electoral votes are apportioned to the candidate who wins the state. It doesn’t matter if you win by a little or by a lot, you still get the votes, which is part of the reason the guy who is sitting in the White House right now managed to lose the popular vote and win the electoral vote back in 2000– with a little help from his friends on the Court, of course.

That particular anomaly has some California Democrats trying to frame an initiative that would have the state cast its electoral votes for the winner of the popular vote, regardless of who actually carries the state, at least if enough other states go along. The idea is that if enough states bought in to amount collectively to the 270 votes needed to win, you’d effectively eliminate the electoral college, which many people, particularly those who live in big states, think would be a good idea…

The Republican idea sounds simple: apportion electoral votes by congressional district, so that each candidate in California’s 53 congressional districts would get one vote for every district he or she won. The other two votes, representing the two Senators, would go to the state-wide winner. In practice, that means that last time around, instead of winning all 55 of California’s electoral votes, John Kerry would have won 33 and George Bush 22, more than he won in Ohio (20) and almost as many as Florida (27). Since Democrats have carried California in the last four elections, and since carrying California is pretty much essential to the arithmetic of a Democratic victory, the Republican proposal is aimed at ensuring that the Republican candidate wins.

In California, 19 districts are represented by Republicans; only 7 states in the country have more electoral votes than that. What that means, in practice, is that even if Hillary were to win Ohio or Florida, either of which would have put John Kerry over the top, she would lose. That is, dare I suggest, the whole idea.

What I find interesting here is I don’t recall Estrich having a problem when Colorado Democrats tried to do this. Indeed, there was a similar initiative in North Carolina introduced by Democrats, but Howard Dean had it pulled for the sole purpose of opposing California’s.

In many ways, the popularity of the initiative is of Estrich’s and other liberals’ making. The argument against the Electoral College and the idea that it’s just not fair that the winner of the popular isn’t the winner of the Electoral College.

Estrich makes light of Democrat attempts to change the college saying that they were “less interested” than Republicans which is kind of funny as Hillary Clinton endorsed and later introduced an Amendment to end the electoral college.

Liberal lawyer Doug Kendall gets all strict constructionist on us writing:

But there’s a big problem with this referendum that has so far gone unnoticed: It’s patently unconstitutional. The U.S. Constitution prohibits a ballot measure that would trump a state legislature’s chosen method of appointing electors. In Article II, Section 1, the Constitution declares that electors shall be appointed by states “in such manner as the Legislature thereof may direct.” That’s legislature. California’s could scrap its current winner-take-all approach and adopt a district-by-district system for allocating electors (as only Maine and Nebraska currently do). But the voters—whom the initiative supporters have turned to because they don’t have the support of the Democratic-controlled legislature—cannot do this on their own.

When the lawyers get to court, they’ll just say, “Well, in Europe, this would be okay…” In all seriousness, this is the most extreme of arguments. A smart attorney would argue that in great citizens the iniatative power and not forbidding them from messing with the electoral college, that the legislature gave them the power.

The argument might work in court, but should it? Should California do this?

The one thing that Susan Estrich won’t tell you and that Doug Kendall won’t say is that all the talk of tampering with the Electoral College is really partisan talk. Would Kendall and Estrich so loudly denounce such a move were it to occur in Texas?  On the other hand, would Republians push the effort in a large state that they have the advantage in such as Tennessee or Oklahoma, I doubt it.

The last reason we should change the way we elect our President is to please our momentary partisan impulses. Such blatant attempts to twist the system deny the Spirit of the Constitution. Despite decades of complaints, the Electoral College remains. Why? Because it works.

In the years since America was founded many nations have come and gone. Many democracies have had direct election and other “fair” ways of choosing a leader. And many of these democracies have crumbled. Why? Military Coups and Constant Revolution.

It was the great danger our founders saw with a republican form of government. Ambition of one  section over another. The Founders’ answer, according to Madison, it’s that “Ambition must be made to counteract ambition.” Through the way we elect our officers, we protect ourselves from changes that our too sudden, too rash, or too foolhardy. We balance the rights of big states and small states and manage to hold a Republic together. The genius of the Founders’ in creating the system is only matched by the short-sighted egotism of those who tamper with the system to achieve partisan gain on both the left and the right.