“When ‘Legislature’ May Mean More than ‘Legislature’: Initiated Electoral College Reform and the Ghost of Bush v. Gore”

I wrote this piece in 2008 for the Hastings Constitutional Law Quarterly. After the AZ case, I can say that I now think it is very likely that initiated electoral college reform would satisfy the Legislature requirement of Article II. Here’s the abstract:

This Article, forthcoming in a symposium in the Hastings Constitutional Law Quarterly, examines the question of the constitutionality of changes to the Electoral College accomplished through the initiative process; it does not discuss the merits of either the Electoral College or reforms that have been proposed to change it (whether through the initiative process or otherwise). Part I gives the brief history of attempts to use the state initiative process to change the rules for choosing presidential electors, beginning with Colorado’s Amendment 36, which would have divided the state’s electoral votes proportionally but failed to pass in the 2004 election, to the current California Electoral College measure, which would divide electoral votes mostly by congressional district and whose fate is unclear as of this writing. It also explains that even if the California measure fails to qualify or pass, this issue could well arise in a future election because of general dissatisfaction among segments of the population with the Electoral College system for choosing the President. Part II turns to the constitutional question whether initiated changes to rules for choosing presidential electors violate Article II. It offers an analysis of the question based upon the text of Article II, relevant Supreme Court caselaw involving Article II, as well as Articles I and V, and the possible purposes behind Article II’s use of the term Legislature. It concludes that the issue of the constitutionality of initiated Electoral College reform is a difficult one to resolve about which reasonable jurists will differ, and because of that difficulty resolution by the Supreme Court could appear to be colored by the political considerations of who could lose or win by resolution of the question raising the specter of another Bush v. Gore. Part III concludes with two strategies that can help avoid the Article II question from becoming the next Bush v. Gore. First, courts should be more willing to engage in pre-election review of such measures, so that these issues can be resolved before, rather than after, an election. Second, Congress should consider amending the Constitution with an election administration amendment that would impose a two-year waiting period before any state’s changes to Electoral College rules may go into effect. An amendment changing the Electoral College itself would be difficult to pass through Congress and the states. But my proposal is a neutral amendment ex ante that could decouple the consideration of the merits of Electoral College reform from the short term political advantages that could come from such a change.

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