Proposed ballot measure asks if state should take action it already took

Good morning. Happy New Year! We start this year with a question: Should California’s elected officials do everything in their power to make the country decide presidential elections by a national popular vote?

A recently introduced ballot measure asks just that, coming on the heels of the second presidential election since 2000 where the candidate with the most votes lost in the Electoral College, which is mostly a winner-take-all system based on statewide popular vote.

But there’s one catch: California passed legislation in 2011 joining a national effort to scrap the current system in favor of the national popular vote, which CalWatchdog wrote about in February. 

Besides being largely redundant, the ballot measure would be merely advisory, with no force of law (the measure only asks if policy makers should do something; it doesn’t direct them to do anything). It’s similar in effect to Prop. 59 from the November ballot, which focused on campaign finance law. 

“My focus is less on exact means than on the goal,” said the measure’s proponent, Rod Howard, an attorney who specializes in mergers and acquisitions. “The interstate NPV compact is one approach, and an ingenious one. But it’s only one approach, and it does not yet have the force of law.”

CalWatchdog has more.

In other news:

• Law enforcement: “A year after being branded by a London newspaper as America’s most lethal police force, the Bakersfield Police Department and the Kern County Sheriff’s Office are now the subjects of civil rights investigations by the state Attorney General’s Office.” CalWatchdog has more. 

• Fact check: “A misleading column about a new state law by an Orange County lawmaker has sparked inaccurate online reports taking off on Facebook. Assemblyman Travis Allen, R-Huntington Beach, wrote a piece for the Washington Examiner under the headline ‘California Democrats legalize child prostitution,’ which has been cut and pasted by a variety of partisan websites as the basis for their false claims.” The Sacramento Bee has more. 

• Trump: “If you struggle to get a handle on some of President-elect Donald Trump’s comments, here’s a hint: Don’t take him literally. Sometimes Trump shoots from the hip, before he’s thought things through. Sometimes, at least during the campaign, he’d repeat lines that roused the crowd. And there’s a growing perception that sometimes, he’s doing what he’s spent his career doing – being a negotiator, not a typical politician whose words you take at face value.” The Orange County Register has more. 

• Kamala Watch: “California’s newest U.S. senator, Kamala Harris, faces extraordinarily high expectations as she takes her oath of office on Tuesday,” Politico reports.

Legislature:

• Back tomorrow. 

Gov. Brown:

• No public events scheduled.

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A recently-introduced ballot measure asks just that, coming on the heels of the second presidential election since 2000 where the candidate with the most votes lost in the Electoral College, which is mostly a winner-take-all system based on statewide popular vote.

But there’s one catch: California passed legislation in 2011 joining a national effort to scrap the current system in favor of the national popular vote, which CalWatchdog wrote about in February. 

Besides being largely redundant, the ballot measure would be merely advisory, with no force of law (the measure only asks if policy makers should do something; it doesn’t direct them to do anything). It’s similar in effect to Prop. 59 from the November ballot, which focused on campaign finance law. 

“My focus is less on exact means than on the goal,” said the measure’s proponent, Rod Howard, an attorney who specializes in mergers and acquisitions. “The interstate NPV compact is one approach, and an ingenious one. But it’s only one approach, and it does not yet have the force of law.”

Ten states and the District of Columbia have signed onto the interstate compact, totaling 165 electoral votes. The effort needs 105 more electoral votes to go into effect, theoretically. 

Other options

There are other options besides the interstate compact, although they are much more elusive. The states could amend the Constitution or call for a Constitutional Convention. But neither option is realistic, due to the two-thirds threshold of support, particularly following an election where the majority of states picked Republican Donald Trump, who won the Electoral College, but lost the popular vote.

The state could pursue litigation, the measure argues, as well as a proportionate system, like those used in Maine and Nebraska, where electoral votes are allocated based on both the popular vote and success in congressional districts, instead of the winner-take-all system. 

Howard’s belief though is that more could and should be done to throw away the current system. The timing may be not be ideal though, as efforts to move to a national popular vote could be panned as partisan and reactionary against Trump (although that may fade by 2018). 

Public opinion

And Americans are souring on the idea. A Gallup poll taken in December showed 47 percent of Americans want to keep the Electoral College. And while that’s just shy of a majority, support has increased substantially since 2011, when only 35 percent said they supported the centuries-old institution. 

Language

Here’s the measure’s language in its entirety: 

“Shall California’s elected officials use all of their federal and state constitutional and legal authority to cause the President and Vice President of the United States to be elected in a manner that follows (and, until then, more closely and more consistently follows) the outcome of the national popular vote for those offices, including, but not limited to, their authority to propose and ratify one or more amendments to the United States Constitution to eliminate or modify the Electoral College process, their authority to approve and adopt interstate compacts such as the National Popular Vote Interstate Compact, and their authority to propose, adopt and pursue related legislation and litigation?”

Denise Cross / flickr

Though it means nothing for 2016, the 2020 presidential election may be decided by popular vote — or at least that’s the timeline given by one of the main proponents.

As it stands now, there really is no national election for president, rather 51 elections (including Washington, D.C.), where electors are doled out by the states/D.C., with the winner needing at least 270 electoral votes.

But most states are a foregone conclusion. Would blue California really go for a Republican? Or would red Mississippi chose a Democrat?

In most instance, no chance, so that gives a disproportionate share of attention by presidential candidates to a relatively small group of states like Florida, Ohio and Virginia.

National Popular Vote is pushing to replace the current race to 270 with a simple majority of the popular vote. Bay Area campaign and election lawyer Barry Fadem, who is working with NPV, says this goal can be achieved by 2020.

How Close Are They, Really?

It may seem like a farfetched idea, but the movement is halfway there. Ten states, including California, have ratified the measure (D.C. has signed on as well). Once enough states have ratified the interstate compact to represent 270 electoral votes — a majority — the county will move to the popular vote.

Last week, the Arizona House of Representatives approved the measure. And although it hasn’t voted yet, two-thirds of the Arizona Senate are sponsors. And there are several other states where at least one chamber has approved.

The way the law is structured, the (Constiutionally-mandated) electors of the states that have ratified the compact would choose the candidate who won the popular vote. Therefore, states that didn’t sign on are free to not participate, but they wouldn’t have enough electoral votes to matter.

The theory is that these states would ultimately fall in line, as they’d then have no incentive to stay under the current system once a majority starts with the popular vote.

Why Go Through This Trouble?

Many voters are still upset that in 2000, Republican George W. Bush beat Democrat Al Gore for president by winning the Electoral College while losing the popular vote. While this is largely Democrats who are upset, supporters of the losing candidate would be sour in any similar situation.

“The disadvantages of the current system, of course, are first that you can have an election where the winner of the popular vote loses the election,” said Norm Ornstein, a resident scholar the right-leaning American Enterprise Institute. “It happened in 2000, without many repercussions, but the next time? Watch out.”

Swing states like Florida, Ohio and Virginia have a disproportionate influence on the general election. There are 12 or so states where candidates spend most of their time because the rest are viewed as forgone conclusions. According to NPV, no campaign events were held by the 2012 presidential candidates outside of these 12 states during the general election.

“Two-thirds of the states now are irrelevant, since they are firmly blue or red, giving all the focus to a small number of competitive ones and distorting the election,” Ornstein.

Downsides

Critics have said that a close election could result in a national recount (“take Florida in 2000 and multiply by 50, with a hundred times the number of lawyers,” said Ornstein), but that the federal government really isn’t equipped to handle a recount of that magnitude.

“The federal government does not conduct elections,” said Kyle Kondik, the managing editor of Sabato’s Crystal Ball, a non-partisan political publication from the University of Virginia’s Center for Politics. “So if there was an election that was so close a recount was required, it would have to be a 50-state recount. That sounds challenging.”

There’s also a concern that attention would shift from swing states to heavily-populated areas, like Los Angeles or New York City, on the theory that time-strapped candidates would plan visits to the densest areas to reach the most people at once.

But NPV contends that the densest cities still only make up a small part of the population. According to Census data, the 30 most heavily-populated cites account for only about 12 percent of the population — nowhere near a majority.

Is It Even Constitutional?

While something that fundamentally changes how the president is elected will likely be challenged in court, Fadem says “a Constitutional amendment is not required,” pointing to language in the Constitution giving each state the right to decide how to direct its electors.