An End Run Around Democracy: The Unconstitutionality of a Ballot Initiative to Alter the Method of Distributing Electors

Abstract:     
This Comment argues that the use of a ballot initiative to change the method of selecting electors violates Article II, Section 1 of the U.S. Constitution, which states that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . ."

Part I provides general background information on this clause.

Part II explores recent attempts by states to alter the method of elector selection, focusing on proposals in Colorado and California.

Part III outlines the arguments against the constitutionality of ballot initiatives in five section.

Part III.A argues the Framers actively and knowingly used the word legislature in the Distribution Clause to grant the power to determine the method of selecting electors to the state legislature. First, The Framers understood the meaning of legislature as a representative body. Second, they would have used other phrases if popular vote was desired. The use of the term "legislature," therefore, assigns the task of determining the method of choosing electors to a state's representative body, not to the people via a ballot initiative.

Part III.B explores the debates at the Constitutional Convention and the subsequent ratification debates to support both the understood definition and the Framers intent. At the Constitutional Convention, the Framers evaluated various methods for choosing the President before settling on the use of electors. The Framers then assigned the task of selecting the method of choosing electors to the "Legislature" of each state, with the belief the state's representative body would make this choice. The ratification debates illustrated the Framers' understanding that the state legislature must be involved this process. The original meaning of the word legislature and the Framers intent support the exclusion of ballot initiatives.

Part III.C explores the historical practice of the method of selecting of electors. While the constitutionality of an action does not depend on its prior use, a lack of history supporting the practice may indicate that it is unconstitutional. Strikingly, at no point in the past 200 years has a state legislature been completed removed from the process of selecting the method of distributing electors. The unwavering historical practice of the inclusion of the legislature in the decision making process provides strong evidence that the legislature is a constitutionally necessary actor to altering the method of choosing electors.

Part III.D evaluates another instance of the term "legislature" in the Constitution, comparing the Distribution Clause to Article I, Section 2, which governed the selection of senators prior to the Seventeenth Amendment. The use of the word "legislature" in Article I, Section 2 can help us determining its meaning in the Distribution Clause. Similar to Part III.C, the Part assesses the history of the selection of senators prior to the Seventeenth Amendment, which indicates that almost all state legislatures had autonomous control over the selection of Senators. It concludes that, similar to the Seventeenth Amendment, a constitutional amendment would be necessary to remove the power to choose the method of selecting presidential electors from the state legislature.

Part III.E evaluates court decisions interpreting the word "legislature" in the Constitution. In every case, except for one, the Court has held that the use of the term "legislature" in the constitution means the legislature must act, to the exclusion of a ballot initiative.

Part IV proposes an alternative method of seeking popular input-a non-binding advisory initiative. Since this intuitive does not impermissibly interfere with the legislature's right to choose the method of selecting electors, it is constitutional. Despite its non-binding nature, the results will likely be implemented by the legislature, as shown with previous advisory measures.

Number of Pages in PDF File: 39

Keywords: Electoral College, ballot, initiative, referendum, elector, president, modify, alter, change, select, colorado, amendment 36, electoral reform, electoral college reform, national popular vote, california, Article 2 Section 1

JEL Classification: H70, H80

Accepted Paper Series