Whether or not the California Electoral College measure qualifies for the ballot and is voted upon, courts eventually will have to confront the question whether initiated Electoral College reform violates Article II of the U.S. Constitution. With the National Popular Vote movement in full swing, and other proposals for Electoral College reform floating around, it is only a matter of time before some initiative changing the system qualifies for a state ballot and stands a chance of passing.
Though the constitutional question is straightforward, the answer is not: A strict textual view suggests that initiated reform is unconstitutional; case law and policy arguments show the question is more uncertain. Reasonable judges could reach opposite conclusions on the question. Lacking any clear constitutional answers, there is a danger that judges deciding the question will appear to the public to be swayed-consciously or subconsciously-by political considerations. If the timing goes just wrong, we could have another Bush v. Gore on our hands, with the Supreme Court deciding yet another presidential election under contested standards. Because of these uncertainties, this Article considers steps to avoid another presidential election decided by the courts on these grounds.
Richard L. Hasen,
When Legislature May Mean More than Legislature: Initiated Electoral College Reform and the Ghost of Bush v. Gore,
35 Hastings Bus L.J. 599
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol35/iss4/1