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Home > Journals > Michigan Law Review > MLR FI > Vol. 106

 

Abstract

The unfairness of the proposed California Presidential Election Reform Act is obvious: in a close election, the Act virtually assures that California’s fifty-five electoral votes, which would be expected to go entirely to the Democratic presidential candidate under the traditional statewide-winner-takeall system, will instead be split, with more than a third of them going to the Republican candidate. Implementing this “reform” in the nation’s largest Democratic state, but not in any of the large Republican states (like Texas), is roughly the equivalent of handing over to the Republicans the state of Illinois. What is less obvious is that the Act would be unfair and unwise even if it applied nationwide. The Act embodies the “congressional-district system” for awarding electors to presidential candidates. That system gives the statewide popular-vote winner only two electors and allocates the remaining electors on a districtby- district basis, awarding each district’s lone elector to whichever presidential candidate carries that particular district. This system sounds eminently fair to many casual observers, and it would likely have the benefit of encouraging presidential candidates to compete aggressively in a larger number of states. Indeed, even as sophisticated an observer of the political scene as Professor Bruce Cain of the University of California at Berkeley was recently quoted in the San Diego Union-Tribune as saying that, although the congressional-district system for awarding electors is “a horrible idea if it’s applied only to California,” the “idea itself is fine if it’s applied to all states.”

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