California governor signs law awarding all of state's electoral votes to popular vote winner

[JURIST] California Governor Jerry Brown [official website] on Monday signed [press release] into law AB 459 [text, PDF], an interstate compact which would deliver all 55 of California's electoral college [National Archives backgrounder] votes to the winner of the national popular vote in a presidential election. However, the law will only go into effect if enough states to constitute an electoral college majority enact similar laws. Eight other jurisdictions have already done so: Maryland [JURIST report], New Jersey, Illinois, Hawaii, Washington, Massachusetts, Washington DC and Vermont. The movement thus has 132 of the 270 electoral votes needed to pass it nationwide. California's bill passed [materials] earlier this month. There are similar bills pending in Alaska, Georgia, Iowa, Kansas, Minnesota, Nebraska, New York, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee and West Virginia.

Proponents of the compact believe it is legal under Article II of the US Constitution [text]: "[e]ach state shall appoint, in such manner as the Legislature thereof may direct, a number of electors," which they contend gives state legislators a "blank check" to change the electoral process. They believe this was clarified by the landmark Supreme Court [official website] decision, Bush v. Gore [text]. The court wrote that voters only have rights in elections based on how state legislators dictate the election process. Detractors have suggested that the compact could violate the Voting Rights Act [text]. There are also questions of whether the compact needs to be congressionally approved to upend the electoral college, but scholars have suggested that Virginia v. Tennessee [text] allays this concern, in which the court ruled congressional consent is not necessary when a state compact does not threaten a federal issue. If enacted, the compact would effectively destroy the electoral college. Those in favor of this argue that presidential candidates will be forced to campaign in states that aren't regarded as "swing" states. Critics worry that candidates will further ignore small-population states as well as questioning the fairness of awarding electoral votes to the popular winner of the nation, not of that state.

 

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