I have just posted this draft on SSRN (forthcoming, Hastings Constitutional Law Quarterly). Here is the introduction (footnotes omitted):

Imagine the following scenario, which, as of the time of this draft, may not be likely but is not at all far-fetched: Hillary Clinton is locked in a close race with Rudolph Giuliani to become the 44th president of the United States. California Republicans raise funds to qualify a ballot measure to appear on the November 2008 ballot which would change the allocation of California’s 55 Electoral College votes used to determine the next president. Rather than using a statewide winner-take-all system which appoints all of the state’s 55 electors to the winner of the statewide popular vote, the initiative would change the method to appoint 2 of the electors based on a statewide popular vote, and the remaining electors based on the results of the popular vote for president in each state congressional district. The measure is widely expected to help Republicans capture as many as 20 Electoral College votes and could well make the difference in the election nationally. Democrats file suit a pre-election suit to keep the measure off the ballot arguing, among other things, that the measure violates Article II of the United States Constitution, which they say allows only the state legislature, and not the people legislating through the initiative process, to pick the rules for choosing presidential electors. The California Supreme Court, citing precedent allowing it to decline pre-election review of substantive constitutional claims, denies review. The measure passes at the same time California voters vote for president, and the fate of the presidency stands in the balance: without a portion of California’s votes, Clinton loses and Giuliani cannot become president. With 20 of California’s electoral votes, Giuliani becomes president.
The California Supreme Court rules on the legality of the initiative and the losing party files a petition for certiorari in the United States Supreme Court, which for the second time in three elections, must decide a case that will determine the outcome of the presidential election. The identity of the 44th president turns on a single legal question: Does the reference to “Legislature” in Article II refer only to the state legislature itself, or can it include the legislative power of the people to govern by initiative, recognized in a state constitution? The results may depend upon whether the conservatives on the Court will stick with a strict textual reading of the term “Legislature” set forth in a concurring opinion in Bush v. Gore to the detriment of Giuliani and upon whether the liberals on the Court will abandon their skepticism of the textualist reading of “Legislature” expressed in their Bush v. Gore dissents, to the detriment of Clinton. The irony meter is off the charts.
This Article 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 failed to pass in the 2004 election, to the current California measure, 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.

This is still a work in progress. Comments welcome!