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Overdrawn
The faux-reform of electoral college vote allocations in California isn’t just another Republican dirty trick. In all serious and in no hyperbole, its passage would threaten the very foundation of our democracy.
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10 Responses to “Overdrawn”
David, do you also oppose the other ballot initiative proposing to change California’s allocation of electoral votes, the (plainly unconstitutoinal) interstate compact plan, and condemn the motives of those who
have “deliberated placed [that, too] on a June ballot where turn[]out is expected to be low–the better to sneak it in under the noses of voters for whom it is made out to be an innocent election reform”? As a general matter, do you agree with the view that the electoral college is valuable, that the disproportionate representation of some states is just fine, and that attempts to bring the college vote into closer alignment with the popular vote are misguided and ought not be entertained? Or (as I have to suspect, given the overtly partisan rhetoric of your post) is your sole concern here that this proposal hurts Democrats and anything that does that must be bad?
To be sure, there are good reasons to be opposed to this change, and to be clear, I oppose it. I do so even though it would help my partisan interests – and do so because it seems to be at best, a woefully underreasoned attempt to displace a longstanding exoconstitutional structure, and at worst, the thin end of the wedge for a frontal assault on the legitimacy of the electoral college itself. Where the interstate compact proposition intentionally seeks to undercut the legitimacy of the electoral college, the congressional district proposition will do so no less surely, because both ultimatley rest on the proposition that it is the people who should decide, with as little mediation as possible, who is President of the United States.
“[T]here are good reasons to be opposed to the change, … but one of them isn’t partisan advantage. … in politics, unlike judging, I tend to think that controlling principles need not be neutrally derived but certainly ought to be neutrally applied when discussing procedural rules, so one might validly support limits on campaign expenditures for example, but one can’t support limits for Democratic candidates and not GOP candidates, or vice versa. Likewise, you shouldn’t be for changes in the electoral college that help your preferred party and opposed to those that hurt it if partisan interest is the driver in taking those positions.“
First of all, “partisan interests” are not per se illegitimate if we’re defining a “partisan” interest as insuring that changes to election law aren’t done for the sole reason of benefiting on party over another. In that vein, I opposed the same plan when it was pitched in Colorado in 2004 (and would have assisted Democrats). Furthermore, as I wrote in post, I’d oppose it even if it were being pitched nationwide, because I don’t want to piggyback congressional gerrymandering onto presidential politics. But in general, I think electoral neutrality requires, so far as possible, procedures that are neutral in both derivation and application, else we get the Anatole France problem of prohibiting both rich and poor alike from sleeping under bridges. Going that route has serious costs to democratic legitimacy–costs that I don’t think our system can absorb after the 2000 calamity.
I’m not a huge fan of the electoral college in general, and wouldn’t really mind if it were abolished. The interstate compact (which Maryland is so far the only state to have adopted, if I’m not mistaken) seems like a reasonable effort at this goal (and since I’ve seen no evidence that a nationwide popular vote intrinsically skews D, it doesn’t have the partisan angle that the one-shot California plan does). I haven’t heard the argument as to why it’s unconstitutional, so you’ll have to fill me in on that–obviously, if its unconstitutional, that would be a rather major strike against it. But there seems to be no major partisan motivation or effect to it, which is a big advantage over the California plan in my book.
I’d love to see the electoral college go away. But the only acceptable way for that to happen is for it to be replaced nationwide by a simple popular vote system.
David:
Well, I agree with that – I adverted to Wechsler and Bork in the post I quoted above – but this plan doesn’t have purely partisan motivations. In intent and effect, it will more closely tailor the disposition of California’s electors to the popular vote in California. It seems to me that – with all due respect to Ethan Leib, which is lots — unless you’re opposed to bringing the Presidency closer to the people by emasculating or eliminating the electoral college’s role as an intermediary (which I am and I think you’ve conceded you’re not) — the only cogent reason to oppose this plan is partisan advantage. It seems to me that it’s not far-off incoherent in terms of purely neutral principles to take the position that the electoral college is (a) illegitimate because (b) it’s undemocratic, yet, (c) a move to increase democratic involvement with the selection of the President is bad. [I was going to say that it was completely incoherent, but on second thought, your point about legislative maldistricting is a pretty good one, so within the rubric you offer, I have to concede that point - although to be clear, I still reject that rubric at base.]
The judge’s oath is to do equal justice to rich and poor alike. A judge who failed to uphold a law “prohibiting both rich and poor alike from sleeping under bridges” ought to resign.
We have a basic disagreement on that. I think that the calamity of Bush v. Gore was that O’Connor and Kennedy insisted on a flatly wrong equal protection argument instead of signing on to the Rehnquist opinion, which I think was the best argument of the day.
Art. I § 10 clearly provides that “No state shall, without the consent of Congress, l… enter into any agreement or compact with another state….” Any agreement that makes a change in the assignment of an electoral slate conditional on one or more other states following suit would constitute a compact, and thus be void absent Congressional consent (which one ought to be able to assume that they won’t get, because no member could vote for it without violating their oath of of office, but given the continuing Congressional moves to give D.C. voting representation in Congress, this appears to be the season for it). Moreover, even if Congress consented, although it’d obviously be a much closer question, I think that would still be unconstitutional; theoretically, a state legislature has the exclusive prerogative under Article II of determining the disposition of its electors (which was precisely the problem in Bush v. Gore, as the Chief Justice’s concurrence explained), but I tend to think that such a move – which expressly aims to subvert the constitutional structure – is also constitutionally void. It directly and explicitly aims to short-circuit the Constitution, cf. Printz v. United States; New York v. United States, and is thus untenable.
I’m somewhat disturbed that you think that unconstitutionality would be merely “a rather major strike against it” rather than being entirely and instantly fatal, David.
Jim – well, I hope you get over that if you ever want to hold non-legislative public office.
Over time, I think the proposal to abolish the ecectoral college will become more and more attractive. People are moving from state to state more frequently, often changing states many times. Many others have a home in one state while working in another. People drive to another state just to have dinner at a favorite restaurant or to shop. The whole notion of identfying with a certain state begins to dissipate, and I predict the trend will intensify. Where people cast their votes in national elections becomes less important than making sure their vote goes to the right candidate. A direct vote is the only way to ensure that.
It was different when families for many generations lived and died in the same state. Time change. and so do perceptions.
Domajot – Which only goes to strengthen my view that the federalizing of more and more government functions ought to be halted in its tracks and thrown into reverse. You’re right, of course, that if people look primarily to D.C. and don’t think of the states as being separate and distinct entities, that will be injurious to the federal nature of the Republic because they will have less reason to identify with a particular state. Conversely, the more power is exercised (and seen to be controlled) at the state level, the more engaged with state elections and processes citizens will be.
To some extent, this is a battle that has to be fought on a political level, but the revolution has been facilitated by the Supreme Court, which would do well to scale back the rulings federalizing (or permitting the federalization by Congress of) various areas of policy.
The “rather major strike against it” was ironic understatement. Give me a little credit. And yeah, it looks like facially it would violate the compact clause (though I don’t buy your argument that it would do so with Congressional consent).
Sure you can, so long as its only being done in particular states to benefit particular political parties. Even if someone believes in the benefits of an end goal, one doesn’t have to support every step that might move you closer to it (if for no other reason that its bad to try and jump a canyon in two leaps).
The Anatole France quote (“The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”) isn’t speaking to judicial enforcement. It’s indicting the idea that facial neutrality and substantive neutrality are even close to the same thing. The system France is describing is not neutral with regards to class, even though it theoretically treats poor and rich alike (for more on the distinction, see Ronald Dworkin’s discussion on the difference between “equal treatment” and “treatment as an equal”). Anyone with a pulse knows that legal regime is biased against the poor (is not neutral with regards to class). As a society, we’re pretty cool with rules that are biased against the poor, but I don’t think we are (or should be) similarly sanguine with the creation of facially neutral laws that impact elections in an obviously and identifiably substantively unequal manner, because we expect that elections should be decided at the ballot box, not based on who can create the most favorable counting system in the run-up to the election. Because it is really, really easy to create facially neutral principles that privilege certain substantive result, any equality regime (be it election law, or anti-discrimination law, or what have you) has to look beyond the simple question “does it treat the parties disparately” and make a deeper inquiry about the real-world impacts of the rule, and what it means for a broader conception of “treatment as an equal.”
David,
Well, since we both agree that “electoral neutrality requires, so far as possible, procedures that are neutral in both derivation and application” let’s come back to neutral principles.
Prof. Wechsler said that a “principled decision is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved.” Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L Rev. 1, 19 (1959). Explaining “what Wechsler mean[t] by neutrality[, which] is crucial to understanding his thesis,” Prof. Greenawalt said that “[a] person gives a neutral reason, in Wechsler’s sense, if he states a basis for a decision that he would be willing to follow in other situations to which it applies.” Greenawalt, The Enduring Significance of Neutral Principles, 78 Colum. L. Rev. 982, 985 (1978). Moreover, “[t]he principles that support a decision must be, according to Wechsler, adequately general as well as neutral,” which is to say that “‘[the] instant case must be treated as an instance of a more inclusive class of cases, i.e. the case at hand is treated in a certain manner because it is held to be proper to treat cases of its type in a certain manner.’ Id. at 987 (quoting Golding, Principled Decision-Making and the Supreme Court, 63 Colum. L. Rev. 35, 40 (1963)).*
So to what extent is your position on the California proposal “neutral” and “general”? To meet that threshold, it seems to me, you would have to take the same position regardless of which party it benefitted, and you would have to be willing to oppose the same process not only if it were raised in another state where it would benefit the Democratic party, but also if it were proposed to apply to all states. Yet the overwhelming thrust of your post is that the proposal is bad because it “could derail a Democratic victory” and hurt the chances of the Democrats to win the election, end “the running disaster that has been the Bush administration.” The closest that you get to a neutral argument is if the principle underlying your statement that “if the California proposal passes a Democrat could win a popular landslide and still lose the electoral college” is “regardless of who wins, it’s bad if there’s a significant disproportion between the popular vote and the electoral vote,” rather than (as the tone of your post overwhelmingly implies) “it’s bad if a Democrat loses in 2008.”
If it really were the former, that becomes highly speculative at best, and very dubious in all other events. What neutrally-applicable argument about this amendment “would threaten the very foundation of our democracy?” Again, the closest to a neutral argument that you get is the point – to put in in more neutral terms – that if this proposal passes, a candidate could win a significant majority of the popular vote and still lose in the electoral college, but that is http://en.wikipedia.org/wiki/United_States_Electoral_College#Focus_on_large_swing_states” rel=”nofollow”>possible with or without the California proposal. All considered, it seems to me that the only reasonable reading of your post – one that leaves it coherent – is that your objection to the proposal is utilitarian, rather than being securely grounded in neutral principles. The threat is that it helps the GOP and might thwart Hillary’s efforts to end our long, national nightmare next fall.
Alas, people who take the political views you seem to take don’t generally have a lot of use for the Constitution except to the extent they can use it as a weapon to assail government action they disapprove of (the same Congressional Democrats who are pushing to give DC seats in Congress, as mentioned above, routinely make vague claims of constitutional violations by the administration, apparently oblivious to the disconnect.
[Footnote:]
* (This is where Bork enters the picture in adjudicative settings. Bork observed that Wechsler didn’t go quite far enough: “If judges are to avoid imposing their own values on the rest of us, … they must be neutral … in the definition and the derivation of principles [as well as their application]. … To put the matter another way, if a neutral judge must demonstrate why principle X applies to cases A and B but not to case C … he must, by the same token, also explain why the principle is defined as X rather than X minus which would cover A but not cases B and C, or as X plus, which could cover all [three cases],” and for that matter, “why X is a proper principle of limitation on majority power at all.” Bork, supra, at 7-8.(This is where Bork enters the picture in adjudicative settings. Bork observed that Wechsler didn’t go quite far enough: “If judges are to avoid imposing their own values on the rest of us, … they must be neutral … in the definition and the derivation of principles [as well as their application]. … To put the matter another way, if a neutral judge must demonstrate why principle X applies to cases A and B but not to case C … he must, by the same token, also explain why the principle is defined as X rather than X minus which would cover A but not cases B and C, or as X plus, which could cover all [three cases],” and for that matter, “why X is a proper principle of limitation on majority power at all.” Bork, supra, at 7-8.
Wow, that last comment was really screwed up in terms of formatting – I miss my preview button.
Let me try to clarify by reposting it:
David,
Well, since we both agree that “electoral neutrality requires, so far as possible, procedures that are neutral in both derivation and application” let’s come back to neutral principles.
Prof. Wechsler said that a “principled decision is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved.” Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L Rev. 1, 19 (1959). Explaining “what Wechsler mean[t] by neutrality[, which] is crucial to understanding his thesis,” Prof. Greenawalt said that “[a] person gives a neutral reason, in Wechsler’s sense, if he states a basis for a decision that he would be willing to follow in other situations to which it applies.” Greenawalt, The Enduring Significance of Neutral Principles, 78 Colum. L. Rev. 982, 985 (1978). Moreover, “[t]he principles that support a decision must be, according to Wechsler, adequately general as well as neutral,” which is to say that “‘[the] instant case must be treated as an instance of a more inclusive class of cases, i.e. the case at hand is treated in a certain manner because it is held to be proper to treat cases of its type in a certain manner.’ Id. at 987 (quoting Golding, Principled Decision-Making and the Supreme Court, 63 Colum. L. Rev. 35, 40 (1963).*
So to what extent is your position on the California proposal “neutral” and “general”? To meet that threshold, it seems to me, you would have to take the same position regardless of which party it benefitted, and you would have to be willing to oppose the same process not only if it were raised in another state where it would benefit the Democratic party, but also if it were proposed to apply to all states. Yet the overwhelming thrust of your post is that the proposal is bad because it “could derail a Democratic victory” and hurt the chances of the Democrats to win the election, end “the running disaster that has been the Bush administration.” The closest that you get to a neutral argument is if the principle underlying your statement that “if the California proposal passes a Democrat could win a popular landslide and still lose the electoral college” is “regardless of who wins, it’s bad if there’s a significant disproportion between the popular vote and the electoral vote,” rather than (as the tone of your post overwhelmingly implies) “it’s bad if a Democrat loses in 2008.”
If it really were the former, that becomes highly speculative at best, and very dubious in all other events. What neutrally-applicable argument about this amendment “would threaten the very foundation of our democracy?” Again, the closest to a neutral argument that you get is the point – to put in in more neutral terms – that if this proposal passes, a candidate could win a significant majority of the popular vote and still lose in the electoral college, bu
t that’s possible with or without the California proposal. All considered, it seems to me that the only reasonable reading of your post – one that leaves it coherent – is that your objection to the proposal is utilitarian, rather than being securely grounded in neutral principles. The threat is that it helps the GOP and might thwart Hillary’s efforts to end our long, national nightmare next fall.
Alas, people who take the political views you seem to take don’t generally have a lot of use for the Constitution except to the extent they can use it as a weapon to assail government action they disapprove of (the same Congressional Democrats who are pushing to give DC seats in Congress, as mentioned above, routinely make vague claims of constitutional violations by the administration, apparently oblivious to the disconnect.
[Footnote:]
* (This is where Bork enters the picture in adjudicative settings. Bork observed that Wechsler didn’t go quite far enough: “If judges are to avoid imposing their own values on the rest of us, … they must be neutral … in the definition and the derivation of principles [as well as their application]. … To put the matter another way, if a neutral judge must demonstrate why principle X applies to cases A and B but not to case C … he must, by the same token, also explain why the principle is defined as X rather than X minus which would cover A but not cases B and C, or as X plus, which could cover all [three cases],” and for that matter, “why X is a proper principle of limitation on majority power at all.” Bork, supra, at 7-8.