By DICK POLMAN
The outcome of the 2008 presidential race may well hinge on what happens to Initiative 07-0032.
I’m betting that you’re unfamiliar with Initiative 07-0032, since it seems to have received far less press attention than, say, Hillary’s laugh. It’s a tactically brilliant Republican power play that has the potential to transform a cliff-hanger election into a clear-cut victory for the GOP.
Republicans may not necessarily know how to govern effectively, but they are experts at gaming the system in the pursuit of power. So it’s with admiration for their chutzpah that I hereby describe their scheme to change the rules in California and snatch roughly 20 electoral votes away from the Democratic candidate.
Here’s the gist: A number of key Republicans, with financing and organizational help from people sympathetic to Rudy Giuliani, are working to put the aforementioned initiative on the California ballot next June. Its backers have cleverly titled it The Presidential Election Reform Act. This “reform” would erase the process by which California has long awarded their electoral votes on Election Day. No longer would the statewide winner of popular vote be permitted to reap all 55 electoral votes; under the GOP plan, the presidential candidates would divvy up the electoral votes, based on the popular vote winner in each of the congressional districts.
The potential benefits for the GOP are obvious. California has been a reliably blue state since 1992, a trove of electoral votes for the Democrats under the traditional rules of “winner take all.” But if the electoral votes are instead divvied by congressional districts, the Republicans might well pick up 20 — because there are roughly 20 safe Republican congressional districts.
That’s as good as winning Ohio. That’s enough to tilt a tight national election into the Republican column. And it’s potentially appealing to California’s Republican voters, who might be induced to flock to the polls next June and dominate what is normally a low-turnout primary day.
The “reform” forces are currently pounding the pavement, collecting the requisite signatures to put this plan on the ballot. They’re also sending out mail, including this priceless claim: “Contrary to some reports in the liberal press, this initiative is not about helping any one party or candidate.”
That letter was authored by Darrell Issa, a California Republican congressman who has donated $50,000 to the movement. The envelope was adorned with a scary photo of Hillary Clinton, and this caption: “She Hopes You Won’t Open This Letter.” Early seed money for the movement was provided by Wall Street investor Paul Singer, who heads Rudy Giuliani’s fund-raising operation in the Northeast. Early legal assistance was provided by two attorneys with ties to the guy who funded the 2004 Swift Boat campaign. A key movement organizer is Anne Dunsmore, who until recently supervised fund-raising for the Giuliani campaign. A key operative is Ed Rollins, who has strategized for three Republican presidents.
Yet, as Sir Isaac Newton observed, for every action there is an equal and opposite reaction. The folks who have mobilized to stop the “reform” initiative turn out to be Democrats, many with ties to the Clintons. The key financiers include Hollywood producer Steve Bing and hedge-fund executive Thomas Steyer, both of whom have raised big money for Hillary; a key strategist is Chris Lehane, who worked in the White House for Bill, and later handled the press for candidate Al Gore. They’ve already been running TV ads in California, and the message isn’t subtle: “A yes vote helps elect a Republican president. A yes vote prolongs the war.”
All told, this California proxy fight threatens to be as consequential as the Florida ballot crisis of 2000.
Back then, Republicans deftly exploited every legal opportunity to swing the Sunshine State into the Bush column. This time, similarly, Republicans are thinking creatively — although I would argue that, this time, it’s not clear their strategy is legal. It’s not even clear their strategy is constitutional.
Article II, Section I of the U.S. Constitution states quite emphatically that electors shall be appointed by the states “in such manner as the Legislature thereof may direct.” There’s nothing in the document about allowing voters to choose, via referendum, the “manner” in which electoral votes are appointed. Indeed, Maine and Nebraska — the only two states that currently tally their electoral votes in a district-by-district manner — took that route only after their state legislatures voted to do so.
The U.S. Supreme Court even decreed in an 1892 ruling that Article II should be followed faithfully, because it gives “plenary power to the state legislatures in the matter of the appointment of electors.” Later, in 1920, the court said that Article II is “plain, and admits of no doubt in its interpretation.” And in a famous ruling 80 years later, the Republican high court majority in Bush v. Gore, even while handing the presidency to George W. Bush, noted approvingly that the constitution “leaves it to the Legislature exclusively to define the method” for distributing electoral votes.
David Gilliard, one of the Republican consultants spearheading the movement, insists, though, that under California’s initiative process, “basically the people are the legislature.” He sounds just like one of those so-called “activist judges,” the kind Republicans routinely denounce for straying beyond the literal meaning of the law. Last time I checked, California has an actual legislature.
X Dick Polman is a columnist for the Philadelphia Inquirer. Distributed by McClatchy-Tribune Information Services.