As discussed in a previous thread that I’d just as soon not reopen, some Republicans are trying to get an initiative on the California ballot for next year which would require that, from then on, only two of CA’s electoral votes would be decided at the state level, with the rest decided by a plurality of each Congressional district.
This thread isn’t about whether it’s a good idea or a bad one. It’s about whether California can Constitutionally make that determination through a referendum, given that the U.S. Constitution says:
“Each State shall appoint, in such Manner as the State Legislature thereof may direct, a Number of Electors…” [Article 2, Section 1, clause 1], bolding mine.
To me, the plain meaning is that a referendum won’t do the trick - only the state legislature can change the rules for how that state appoints its electors. But I’m sure there must be arguments to the contrary that haven’t crossed my mind. So, what are they? This inquiring mind wants to know.
Yes, a change in EC procedure by referendum is almost certainly constitutional, based on precedents established in the area of Congressional redistricting.
Article I of the Constitution grants state legislatures power over the “times, places, and manner” of Congressional elections in language very similar to that concerning “elector elections” in Article II. This serves as the basis for state power to set US House district lines. Since states like to tweak their manner of redistricting, and since redistricting is inherently controversial, this clause has been heavily litigated. Despite the fact that Article I appears to exclusively empower the legislature, SCOTUS has held redistricting to be an ordinary exercise in state lawmaking, subject to whatever constraints a state Constitution may impose in terms of gubernatorial veto (Smiley v. Holm), overrule by initiative or referendum (Ohio ex rel Davis v. Hildebrant), or judicial intervention (Colorado General Assembly v. Salazar, cert denied).
There is no reason to think SCOTUS would rule any differently in the case of EC rules.
I think the CA state constitution, adopted by the state legislature, gives co-equal legislative authority to CA voters through the ballot initiative process:
Note that last part-- the Legislature can’t change a ballot initiative unless that initiative allows for the Legislature to do so, or at least that’s how I read it.
