Bob Herbert: In 2008, Bush V. Gore Redux?

[Hissyspit]

Op-Ed Columnist
In 2008, Bush v. Gore Redux?

By BOB HERBERT
Published: September 22, 2007
Right now it’s just a petition drive on its way to becoming a ballot initiative in California. But you should think of it as a tropical depression that could develop into a major storm that blows away the Democrats’ chances of winning the White House next year.

- snip -

The Presidential Election Reform Act is the name of a devious proposal that Republican operatives have dreamed up to siphon off 20 or more of the 55 electoral votes that the Democrats would get if, as expected, they win California in 2008.

That’s a lot of electoral votes, the equivalent of winning the state of Ohio. If this proposed change makes it onto the ballot and becomes law, those 20 or so electoral votes could well be enough to hand the White House to a Republican candidate who loses the popular vote nationwide. Even Gov. Arnold Schwarzenegger, a Republican, has suggested that the initiative is a form of dirty pool. While not explicitly opposing it, Mr. Schwarzenegger said it smacks of changing the rules “in the middle of the game.”

Democrats are saying it’s unconstitutional.

The proposal would rewrite the rules for the distribution of electoral votes in California. Under current law, all of California’s 55 electoral votes go to the presidential candidate who wins the popular vote statewide. That “winner-take-all” system is the norm in the U.S.

- snip -

Laurence Tribe, a Harvard law professor and one of the nation’s pre-eminent constitutional scholars, believes the initiative is blatantly unconstitutional. “Entirely apart from the politics,” he said, “this clearly violates Article II of the Constitution, which very explicitly requires that the electors for president be selected ‘in such manner as the Legislature’ of the state directs.”

In Mr. Tribe’s view, the “one and only way” for California to change the manner in which its electoral votes are apportioned is through an act of the State Legislature.

Professor Tribe is not a disinterested party. He represented Al Gore in the disputed 2000 presidential election. And not all constitutional experts agree that this would be such an easy call. “This is not an open-and-shut case,” said Richard Pildes, a professor at the New York University School of Law.

MORE