Patterico's Pontifications


A Stupid Law in California? Please Say It Isn’t So!

Filed under: General,Morons,Politics — Patterico @ 9:51 pm

There’s a wacky new law headed to Gov. Arnold’s desk which says: in a presidential election, all of California’s electoral votes to go to the winner of the popular vote nationwide.

Here’s how bizarre this law is: in 2004, Bush would have gotten California’s electoral votes — which he didn’t need, and which the state’s voters certainly didn’t intend.

In 2000, Gore would have gotten the electoral votes — but then, he got them anyway.

What a stupid law this would be
. Tom Blumer first told me about it. He blogs it here. And Armed Liberal comes out against it here.

UPDATE: Numerous commenters clarify that the law would take effect only if all states passed a similar law.

UPDATE x2: Let’s try this again. According to Dafydd ab Hugh, who cites Fox News Channel, “the law only goes into effect if enough other states also vote for such laws that their combined electoral votes add up to 270 or more electoral votes.”

That’s what you get for blogging on vacation.

36 Responses to “A Stupid Law in California? Please Say It Isn’t So!”

  1. I hate this. Talk about disenfranchisement by the government!!

    Did anybody think this over? If they wanted to make the electoral college more representative of popular vote, why in the hell don’t they *split* CA’s electorate by percentage of *CA’s* popular vote? Is that crazy.


    Anwyn (d24425)

  2. i’m inclined against this proposal too.
    if the uniqueness of being californian means anything at all, it means that california voters should be able to deploy their electoral votes toward the candidate of their choice, and not abdicate their selection in favor of a synthesis of the other 49 states. if the other states all did the same thing, we wouldn’t be able to have national elections anymore. let new jersey try this first, it’s a worthless state anyway.
    another thing i’m against is monkeying around with the primary election calendar. when i was young, new hampshire went first, i was cool with that, then iowa started caucusing first (caucusing is another word for letting party orgs rather than individual voters select the candidate), then chaos brewed as states and groups of states (“super tuesday”) tried to jockey for position and one-up other states by scheduling their primaries first. otherwise nominally sane californians complained that their primary was in june, at the end of the race (as if the final stretch wasn’t the most important) and an interstate race to be first has now emerged. this can come to no good end.

    assistant devil's advocate (03459e)

  3. It may be a wrong-headed law, but it can only help conservatives, so although I wouldn’t support it or defend it, I hope it passes.

    Doc Rampage (4a07eb)

  4. Patterico:

    According to the evil, right-wing Fox News Channel, the law only goes into effect if enough other states also vote for such laws that their combined electoral votes add up to 270 or more electoral votes (enough to determine the election).

    In other words, in order to get this passed — the exact same small states that would be most hurt by it would have to vote to make themselves irrelevant in future elections.

    Fat chance.

    Still, if it’s enacted here, I think I’ll figure out a way to file a lawsuit against it… since it could award California’s 54 electoral votes to the candidate that California voters voted against… as it would have in 2004.

    Actually, I’m much more concerned about California HillaryCare, about the bill to allow illegal aliens to get drivers’ licenses, and about that law that Hewitt’s been on about — the one that allows pubic television station KOCE to be sold to a consortium that was not the highest bidder… on the grounds that the highest bidder was a (gasp!) Christian broadcaster.

    I find the California legislature’s recent actions unfathomable. It’s as if they’re willfully and consciously trying to enact everything that will help Arnold Schwarzenegger in his reelection campaign: every bizarre stereotype of left-liberals, every infuriating thing that led to the downfall of Gray Davis.

    I don’t mind it; I’m ecstatic (assuming Schwarzenegger does the intelligent thing and vetoes them all). But why are they doing it?


    Dafydd (6e94cd)

  5. Why are they doing it? No idea, but….

    I recall reading somewhere – in a novel, and I’ll report back if I remember which one – the theory that you can predict the behavior of any organization if you assume that it is run from inside by a secret cabal of its ideological enemies.

    C. S. P. Schofield (c1cf21)

  6. The biggest problem I have with a popular vote is that it favors states with high turnout, which varies quite a bit from state to state.

    Even if less than half of Hawaiians show up to vote, they better represent the interests of that state’s non-voters than do the three-fourths of Minnesotans who voted. Under the Electoral College system, non-voters can feel somewhat represented by their respective state’s voters, which is important considering that two-fifths or more of the people don’t vote (and it’s a majority when you factor in children and non-citizens).

    Under a popular vote system, with generally poor national turnout, regional celebrities (a Michael Jordan or Troy Aikman, let’s say) could win nationally by generating high local turnout, or causing many voters within a state to vote across party lines. This is especially true for states with large populations, where the difference between 50% and 100% turnout is a huge number of votes. The Electoral College system controls for surges in local turnout, or for everyone in a state voting for the same candidate.

    Nels Nelson (16278b)

  7. Nels,

    Interesting point and thanks for the link to the table. On a related note, California gets Electoral College votes based on its total population, even though 20% of California’s adult population is not US citizens (highest percent in the country). While one can say “too bad” for states weakened by those who choose not to vote, and expect them to work on voter participation, there’s no legal way they can avoid nonvoting by noncitizens, so California would be locked into this disadvantage by its new law.

    All that said, it seems fairer to me that representation be based on legal population, or even citizen population, not a total including aliens. (Not that I would change the Constitution to do it; and I would much prefer to keep the Electoral College for a number of reasons.)

    DWPittelli (a38ee9)

  8. This is actually part of a larger effort to insure that the popular vote winner wins in the electoral college; and it works if every state adopts it.

    But, I’ve got to wonder: will the good people of Wyoming be willing, as apparently the state legislators in the Golden State believe their subjects constituents are, to subject their votes to the whims of the larger states?

    Had Wyoming and Montana had such a law, Al Gore would have [shudder] won the 2000 election. But, one wonders if our liberal friends, who were just so concerned about problems in Ohio in 2004 would have been quite so eager for such a thing had Mr Kerry carried Ohio despite losing the popular vote by 3 million votes?

    Two states, Nebraska and Maine, split their electoral votes a bit differently: the statewide winner gets the two votes assigned to the Senate seats, while the winner of each congressional district gets the vote assigned to that district. So far, this method has not yet resulted in a split of those states electoral votes, although there was some thought that President Bush might have taken one of Maine’s in 2004.

    I see that as a better system.

    Dana (1d5902)

  9. Another problem with this bill, like most attempts to replace Electoral Votes with a national popular vote, is that in the case of a very close vote, there will be incentive to do recounts and “discover” votes not just in a state or two, but nationally. Under the current system, no matter how corrupt a state is, it can only sway its own Electoral Votes.

    Won’t a state, knowing that, say, Chicago has cheated, not be tempted to cheat in the other direction? In a race to the bottom of such corruption, or for any other reason, what happens if a state’s chief election official refuses to vote against the state’s own preference? (He will likely be backed up by his own state’s legislature.) The key paragraph:

    “At least six days before the day fixed by law for the meeting and voting by the presidential electors, each member state shall make a final determination of the number of popular votes cast in the state for each presidential slate and shall communicate an official statement of such determination within 24 hours to the chief election official of each other member state. The chief election official of each member state shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate…”

    The bill has no mechanism for challenging a corrupt state’s vote count.

    My predictions:

    1) This probably will not pass in enough states to come into effect.

    2) If it does pass, it will eventually lead to an election making Florida 2000 look like a church school picnic. Hopefully, after only a moderately messy election, perhaps decided by SCOTUS in a far more intrusive way than 2000, it will be repealed; it has a significant chance of leading to a civil war of succession.

    DWPittelli (a38ee9)

  10. Dana: “This is actually part of a larger effort to insure that the popular vote winner wins in the electoral college; and it works if every state adopts it.”

    Actually, it “works” so long as half the Electoral votes + 1 are in states which adopt it. Beyond that makes no difference. The bill, however, has other problems (e.g., in my post #9).

    The Maine system, if adopted widely, is just as likely to lead a mismatch between Electoral and popular votes, especially given gerrymandering.

    States also have a disincentive to adopt Maine’s system, as it weakens a state’s power to decide the election. For example, California, which is now disproportionately important to deciding elections (basically a huge number of votes for the Dem in almost any close race except perhaps if the Republican is from California), will become almost irrelevant to the outcome, as in any close race its Electoral votes will be split about equally. (Meanwhile, Texas, say, if it has not adopted such a system, will still be giving all its votes to the Republican.)

    The above excepting that, if the state is skillfully gerrymandered, it may maintain a strong preponderance to one side or the other; another incentive for outrageous redistricting.

    DWPittelli (a38ee9)

  11. I wonder if this law would stand up in court. I think I’ll head over to see if there’s anything about it on Volokh.

    rightwingprof (663991)

  12. Arnold is not governing the state, his Lefty wifeypoo is a Kennedy and she is calling all the left wing shots. Arnold has gone so far Left that he may even get the support of the unions.

    Howard Veit (28df94)

  13. […] More: Patterico Winds of Change posted by: The Editors @ 9:17 am September 2, 2006 […]

    The Unalienable Right » California legislature votes to disregard U.S. Constitution (7644ea)

  14. Stuck On Stupid California Legislature — Good Grief!…

    It’s getting to the point where I’m not sure how much more of this stupid crap an ol’ Okie can take. The CA legislature (dominated by its Democrats) is never a beacon of clarity and insight, but this last week has shown them at their worst.


    "Okie" on the Lam (e2cef7)

  15. But why are they doing it?

    Because the Dems have a lock on Sacramento and were even more heartened by the voters’ refusal to change that by rejecting the redistricting initiative. Poor Umberg, who got saddled with introducing this dog of a bill. He was a good US Attorney and a promising politician once.

    You might say California is now a “machine” one-party state. When Mayor V takes over the LAUSD (and influence over all that PAC money!) the takeover will be complete.

    Patricia (2cc180)

  16. Sounds like Dems have more confidence in their own party’s ability to win states rather than to win nationally. Under this proposal, if they can win enough states, they can declare the national winner outright.

    And I can’t wait to see CA sue WY or OH or whomever, demanding a recount (I dismiss the “treated as conclusive” language, cuz since when did letter of the law matter, such as in ’00?)

    ras (a646fc)

  17. UPDATE: Numerous commenters clarify that the law would take effect only if all states passed a similar law.

    Are you sure its all? I think its enough to have 270 or whatever you need electoral votes.

    actus (e21271)

  18. I’m against this law, but I want to rant against the implication headline that California has lots of stupid laws.

    California’s laws are amongst the most sensible in the nation, and most of the things California’s been a leader on are right. No-fault divorce has made lawyers poorer. Outright vicious laws against outright vicious people stick violent recidivists in prison way longer than almost anywhere else in the country. California’s criminal procedure laws are mostly very sensible, especially in contrast to areas which restrict even more truth in prosecutorial argument. (For example, we can argue in California that the defense didn’t present logical non-defendant witnesses if they raise a defense that calls for them; that’s barred in many jurisdictions.)

    California’s a politically moderate state with sensible laws. We’re way past Rose Bird, folks. Jerry Brown isn’t really going to be the AG.

    (I think this effort to blow off the electoral college system is misguided, rather than stupid, BTW.)


    JRM (5e00de)

  19. Many of your points are good — but do you think you’d be singing the same tune if you were a small business owner?

    Patterico (91fd36)

  20. No-fault divorce has made lawyers poorer.

    Because convenience and saving money really are more important than commitment to the fam.

    Anwyn (d24425)

  21. UPDATE x2: Let’s try this again. According to Dafydd ab Hugh, who cites Fox News Channel, “the law only goes into effect if enough other states also vote for such laws that their combined electoral votes add up to 270 or more electoral votes.”

    Similar legislation is pending in Colorado, Illinois, Louisiana and Missouri, which have a combined 50 electoral votes. With California’s 55, the legislation would still be less than halfway there.

    Anwyn (d24425)

  22. Sorry, the above second paragraph was a quote from the linked article. Forgot the quote marks.

    Anwyn (d24425)

  23. This is an incentive for fraud on the grandest scale. Cheaters will actively promote illegal and multiple voting. Activist judges will order extended polling hours in some districts, but not others. The difference, though, is that such tricks will affect the overall national outcome, not just that individual state’s electoral votes.

    Jal (926a19)

  24. #18

    “For example, we can argue in California that the defense didn’t present logical non-defendant witnesses if they raise a defense that calls for them; that’s barred in many jurisdictions.)”

    How does this square with the Fifth Amendment?

    Federal Dog (9afd6c)

  25. #24,

    That’s non-defendant witnesses. The 5th Amendment only prevents the state from demanding a defendant’s testimony, or (as decided by courts) calling attention to a defendant’s non-testimony.

    “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

    dwpittelli (a38ee9)

  26. #25 But how do you establish the relevancy of the testimony?

    Federal Dog (9afd6c)

  27. #25 But how do you establish the relevancy of the testimony?

    Usually, the defendant does. Say his whole story hinges on his pal Sparky, whom he testifies lives next door, and whom he has known for years. The defendant says, for example, that during the crime, he was hanging out with Sparky. But Sparky doesn’t testify. The prosecutor wants to say: where is Sparky? In California, he can.

    Patterico (91fd36)

  28. Because convenience and saving money really are more important than commitment to the fam.

    And commitment is best determined by antiquated family laws, rather than what the peope in the family are experiencing

    actus (7e5d83)

  29. #27

    I did not understand the original situation then. Here is what I thought was in question.

    Here, if a defendant has any intention of mounting certain kinds of defenses — e.g., an alibi defense — he must signal that intent to the prosecutor at pretrial conference. That gives the prosecution a chance to gather evidence relevant to that alibi.

    Signaling this intent, however, in no way obliges the defendant to actually mount the defense: The defendant fully retains the right to remain absolutely silent from start to finish. Thus, it may be that the defendant doesn’t mount any case at all after the close of the prosecution’s evidence.

    Therefore, the prosecution never knows for a fact whether or not the defendant will actually mount that defense until after the close of evidence. It therefore may not introduce any non-defense witnesses in its case-in-chief relevant to that alibi because the defendant has not made that evidence relevant yet.

    It sounds like this is a question not of the prosecution’s case-in-chief, but of cross-examining defense witnesses.

    In this case, we would call Sparky as a rebuttal witness and get at things that way. I would imagine that’s how many jurisdictions do it?

    Federal Dog (9afd6c)

  30. 29:

    I think you misunderstand my mostly off-topic point. (Sorry for hijacking the comments, fine host.)

    We’re talking about closing argument. Defendant says he got the car from Fred who has no last name but who lives down the street. He went to visit Joe and Pete. This defense is fictional, as is (at least) Fred.

    The fact that defendant didn’t go find Fred to testify for him is pretty damning. In California, both sides would be able to argue the lack of logical witnesses. In other states, Pat and I wouldn’t be able to argue, “Where’s Fred? The answer is: Nowhere. Because Fred doesn’t exist. Where’s Joe and Pete? They aren’t willing to lie; that’s why they’re not here.”

    And Pat: I wouldn’t like being a small business owner in some of the more difficult counties, but it’s not so bad. I have close relatives and friends who are small business owners for whom California’s laws have been beneficial.


    JRM (de6363)

  31. #30

    Thanks for the clarification. In that event, during the defendant’s case, we would get the fact that the defendant cannot even fully name the guys in question, then get police investigators (or other relevant witnesses) on the stand in rebuttal to testify that they could not identify/find anyone by those names. We can then argue those facts in closing. In addition, if the defendant made statements prior to trial that included reference to the missing guys, that stuff comes in during the prosecution’s case-in-chief anyway (positing proper Miranda warnings).

    I think we would likely end up roughly in the same position: In your jurisdiction, you can ask the defendant directly why the guys aren’t in court, whereas we would use admissions/ rebuttal witnesses. I think the latter techniques must be additional concessions to Fifth Amendment concerns. They risk no coerced self-incrimination (positing that the defendant was properly Mirandized) and still get the essential information before the fact-finder so that it may be argued in closing.

    Federal Dog (9afd6c)

  32. Thats not the only stupid law passed by our imperial governor and the imperial senate of kalifornia they have also passed a stupid junk science law over this global warming poppycock nonsense and frankly the biggist amount of HOT AIR comes from those idiots in SACRAMENTO and the blabbering mouths of AL GORE and the doofuses in GREENPEACE

    krazy kagu (52a738)

  33. See Mexico, Election of 2006

    Kevin Murphy (0b2493)

  34. Dana – I find the split-the-electoral-vote-along-the-congressional-district-lines system to be terrible: it magnifies the impact of gerrymandering.

    aphrael (e7c761)

  35. Can any of you attorneys venture a guess as to whether or not this is even constitutional? Article I, Section 10 is pretty explicit about outlawing interstate compacts.

    moon6 (7b9a78)

  36. lodine…


    lodine (f85ca5)

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