BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 37
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          Date of Hearing:  June 19, 2007

                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
                                 Curren Price, Chair
                     SB 37 (Migden) - As Amended:  April 10, 2007

           SENATE VOTE  :  22-14
           
          SUBJECT  :  Electoral college: interstate compact.

           SUMMARY  :  Ratifies an interstate compact whereby the state  
          agrees to award its electoral votes to the Presidential ticket  
          that received the most popular votes nationwide if certain  
          conditions are met.  Specifically,  this bill  ratifies the  
          Agreement Among the States to Elect the President by National  
          Popular Vote (Agreement), an interstate compact that contains  
          the following provisions:

          1)Any State of the United States and the District of Columbia  
            may become a member of the compact;

          2)Requires each member of the compact to conduct a statewide  
            popular election for President and Vice President;

          3)Requires the chief election official of each member state to  
            determine the number of votes cast for each presidential slate  
            in each state of the United States and in the District of  
            Columbia in which votes have been cast in a statewide popular  
            election and to add such votes together to produce a "national  
            popular vote total" for each presidential slate;

          4)Requires the presidential elector certifying official of each  
            member state to certify the appointment in that official's  
            state of the elector slate nominated in that state in  
            association with the presidential slate that had the largest  
            national popular vote total;

          5)Requires, at least six days before the day fixed by law for  
            the meeting and voting by presidential electors, each member  
            state to make a final determination of the number of popular  
            votes cast in the state for each presidential slate and to  
            communicate an official statement of such results to the chief  
            election officer of every other state.  Requires the chief  
            election official of each member state to treat any such  
            statement received from another state as conclusive;








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          6)Provides that, in the event of a tie for the national popular  
            vote winner, the presidential elector certifying official of  
            each member state shall certify the appointment in that  
            official's own state of the elector slate nominated in  
            association with the presidential slate receiving the largest  
            number of popular votes within that official's state;

          7)Provides that if the number of presidential electors nominated  
            in a member state in association with the national popular  
            vote winner is less than or greater than that state's number  
            of electoral votes, the presidential candidate on the  
            presidential slate that had the largest national popular vote  
            total shall have the power to nominate the presidential  
            electors for that state and that state's presidential elector  
            certifying official shall certify the appointment of such  
            nominees;

          8)Provides that this compact will govern the appointment of  
            presidential electors in each member state in any year in  
            which the agreement is, on July 20, in effect in states  
            cumulatively possessing a majority of electoral votes;

          9)Provides that the compact shall take effect when states  
            cumulatively possessing a majority of the electoral votes have  
            enacted the compact in substantially the same form and the  
            enactments in such states have taken effect in each state;

          10)Permits any member state to withdraw from the agreement,  
            except that a withdrawal occurring six months or less before  
            the end of a President's term shall not become effective until  
            a President and Vice President have been qualified to serve  
            the next term;

          11)Requires the Governor (or the Mayor in the case of the  
            District of Columbia) of each member state to notify the  
            Governor (Mayor) of all other states when the compact has been  
            enacted and has taken effect in that official's state, when  
            the state has withdrawn from the compact, and when the compact  
            takes effect generally;

          12)Provides that the compact shall terminate if the electoral  
            college is abolished;

          13)Defines various terms for the purposes of the compact; and,








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          14)Provides that if any provision of the compact is held  
            invalid, the remaining provisions shall not be affected.

           EXISTING LAW  provides that the Presidential ticket that receives  
          the greatest number of votes in the state will receive all of  
          California's electoral votes.

          1)Requires each political party to select its slate of electors  
            in accordance with established party procedures.

          2)Requires the Secretary of State (SOS) to certify the electors  
            receiving the highest number of votes statewide in a general  
            presidential election.

           FISCAL EFFECT  :  According to an Assembly Appropriations  
          Committee analysis of a substantially similar measure from last  
          session, minor fiscal impact every four years to the SOS to  
          implement compact procedures.

           COMMENTS  :

           1)Purpose of the Bill :  According to the author:

               The current system for electing the President of the Untied  
               States is fundamentally flawed.  The winner-take-all  
               allocation of electoral votes used by 48-states has created  
               a situation with several unanticipated and devastating  
               consequences.

               The most unfortunate result of the current system is that  
               more than 2/3rds of the voters in the country are ignored  
               during presidential campaigns.  Candidates, regrettably,  
               but understandably, focus all of their attention on so  
               called "battleground" states where the partisan outcome is  
               not predetermined.  Those "safe" states where either the  
               Democratic or Republican candidate is assured of winning  
               all of a state's electoral votes are dismissed and written  
               off by presidential campaigns.

               More than 99% of all general election campaign spending,  
               including advertising, candidate visits, polling,  
               organizing, etc. occurs in just 16 "battleground" states.   
               This results in the issues and concerns of voters in "safe"  
               states being disregarded by campaigns.  If there is no  








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               reason to campaign in a state, there little motivation for  
               a candidate to educate his or herself on the issues of that  
               particular state.

               For example, California is a "safe" state.  In the upcoming  
               presidential campaign, it is very unlikely that either  
               candidate will discuss high technology, bio technology, or  
               Pacific Rim trade issues that are significant to  
               California.  Similarly, candidates will not address issues  
               like drought relief and rebuilding decayed infrastructure  
               that are so important in "safe" states like North and South  
               Dakota, Nebraska, and other states in the Midwest.

               The other unintended consequence of the current system is  
               the candidate that receives the most votes is not  
               guaranteed of being elected.  The results of five of the  
               last 12 presidential elections could have been altered by  
               just a shift of a few thousand votes from one candidate to  
               another.  Senator Kerry would have been elected if a total  
               of 22,000 votes in Iowa, Nevada, and New Mexico had shifted  
               from President Bush to Senator Kerry.  This is despite the  
               fact that President Bush received 3.5 million more votes  
               throughout the country.

               A national popular vote for president has consistently been  
               supported by around 70% of the public for more than 60  
               years.  The Gallup organization has been asking about a  
               national popular vote since the 1940's and the results,  
               regardless of partisan affiliation, are almost always  
               between 65-70% in favor.  Recent polling, by both the  
               sponsors as well as independent organizations, has resulted  
               in similar outcomes.

               Switching to a national popular vote as outlined in SB 37  
               and the interstate compact will result in every vote being  
               of equal value.  Currently, because of the "battleground"  
               vs. "safe" state dynamic, a presidential candidate is much  
               more interested in procuring votes in Tallahassee, Florida,  
               a "battleground" state, then in Temecula, California, a  
               "safe" state.  A national popular vote will encourage  
               candidates to campaign everywhere, battleground and safe  
               states, Democratic and Republican states, big states and  
               small states, urban and rural states, etc. because every  
               vote will be equal and count towards the national popular  
               vote total.








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           2)Electoral Votes  :  Section 1 of Article II of the United States  
            Constitution provides, in part, that "[e]ach state shall  
            appoint, in such a manner as the legislature thereof may  
            direct, a number of electors, equal to the whole number of  
            Senators and Representatives to which the state may be  
            entitled in Congress . . ."  In accordance with that authority  
            granted to the state legislatures, California and 47 other  
            states (along with the District of Columbia) have chosen to  
            award all electoral votes to the Presidential ticket that  
            receives the greatest number of votes in the state (or in the  
            District).  Two states, Maine and Nebraska, have chosen to  
            award 1 electoral vote to the Presidential ticket that  
            receives the greatest number of votes in each Congressional  
            district in the state, and 2 electoral votes to the  
            Presidential ticket that receives the greatest number of votes  
            in the state.  Maine has used this system of electoral vote  
            allocation since 1972, while Nebraska adopted this method in  
            1996.  However, neither Maine nor Nebraska has ever awarded an  
            electoral vote to any candidate other than the candidate who  
            won the statewide vote in the respective state.  That is,  
            neither Maine nor Nebraska have split the state's electoral  
            votes between Presidential candidates.

          While the "winner take all" method of awarding electoral votes  
            used in California and the district-based method of awarding  
            electoral votes that is used in Maine and Nebraska are the  
            only two ways that states currently use to award electoral  
            votes, the states are not limited to these two options.   
            Rather, the United States Constitution gives the state  
            legislatures complete authority to determine how presidential  
            electors are appointed.  The California Legislature has  
            previously considered bills to adopt the district-based  
            method, to award electoral votes proportionately to the  
            Presidential tickets based on the share of the vote that each  
            ticket received, and to provide that voters shall vote  
            directly for Presidential electors, rather than voting for  
            candidates for President and Vice President at the general  
            election.  In 2004, Colorado had an initiative on the ballot  
            that would have awarded that state's electoral votes on a  
            proportional basis.

          This bill ratifies an interstate compact in which each member  
            state agrees to award its electoral votes to the Presidential  
            ticket that receives the most votes nationwide.  That  








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            interstate compact would go into effect only if the states  
            that are parties to the interstate compact collectively  
            possess a majority of electoral votes.

           3)Interstate Compacts  :  Article I, Section 10 of the United  
            States Constitution provides, in part, "[n]o state shall,  
            without the consent of Congress . . . enter into any agreement  
            or compact with another state. . . ."  Thus, an interstate  
            compact requires the consent of Congress to go into effect.   
            The consent of Congress does not need to be explicit, but can  
            be implied.  In  Virginia v. Tennessee  (1893), 148 US 503, the  
            United States Supreme Court noted that the consent of Congress  
            "may be implied, and is always to be implied when congress  
            adopts the particular act by sanctioning its objects and  
            aiding in enforcing them. . . ."  

          The sponsors of this bill envision two types of Congressional  
            action that could provide the consent of Congress necessary  
            for the compact to go into effect.  The sponsors envision that  
            Congressional consent could be implied by an action of  
            Congress to permit the District of Columbia to join the  
            compact or by an action of Congress to amend existing federal  
            laws regarding the timing of the certification of the results  
            of presidential elections.

           4)Legislation in Other States  :  According to information from  
            National Popular Vote, the organization that is sponsoring  
            this measure, legislation has been introduced in 43 states  
            this year to ratify the interstate compact included in this  
            bill.  On April 10 of this year, Maryland became the first  
            state to ratify the compact when Governor Martin O'Malley  
            signed HB 148 and SB 634.  No other state has approved the  
            interstate compact, although in two states - California and  
            Hawaii - legislation to approve the compact has been approved  
            by both houses of the Legislature, but vetoed by the Governor.

          Because Maryland has 10 electoral votes, the compact needs to be  
            ratified by states with an additional 260 electoral votes  
            before it would go into effect.  
           
           5)No Amendments  :  For interstate compacts to go into effect,  
            each member state must enact the same compact.  While  
            interstate compacts can be amended, any amendments must be  
            made by the other member states as well.  As such, substantive  
            amendments cannot be made to the interstate compact ratified  








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            by this bill without also amending pending legislation in  
            other states.  
           
           6)Arguments in Support  :  According to California Common Cause: 

               Under the current system, presidential candidates  
               essentially ignore California and roughly two-thirds of all  
               states where the outcome is considered "safe" for one  
               candidate or the other.  Instead, candidates spend nearly  
               three quarters of their time and money in so-called  
               "battleground" states.

               Moreover, in four cases throughout history, the candidate  
               who won the popular vote was not elected president.  In  
               five of the last twelve presidential elections, including  
               2004, a shift of a small number of votes in one or two  
               states would have elected the second place candidate.

               When our nation selects a leader that does not have the  
               support of a majority of its citizens, we are a weaker  
               country for it.  The notion that some voters count more  
               than others in choosing our President undermines the very  
               principle of one-person, one-vote that our democracy is  
               built upon.  America deserves better, and fortunately the  
               Founding Fathers left us with a mechanism for states to  
               adopt a better system.

           7)Arguments in Opposition  :  According to the Concerned Women for  
            America of California:

               The Electoral College process for electing the President is  
               part of the original design of the U.S. Constitution.  SB  
               37 circumvents the original intent of the framers by  
               creating an interstate compact, rather than the required  
               amendment process for changing the Constitution.

               The current system has performed its function for over 200  
               years ensuring that the U.S. President has both sufficient  
               popular support to govern (although this may not be the  
               absolute majority) and that this popular support is  
               sufficiently distributed to enable him to govern  
               effectively.  This contributes to the cohesiveness of our  
               geographically large nation as well as its political  
               stability.  Otherwise, a few large metropolitan areas will  
               dominate the selection of the President.








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               The Electoral College reflects each state's choice for  
               President.  Anything that threatens the Electoral College  
               strikes at the heart of our federalist structure as laid  
               out in the Constitution to the detriment of the individual  
               states.  
                
           8)Previous Legislation  :  AB 2948 (Umberg) of 2006, which was  
            vetoed by the Governor, was identical to this bill.  In his  
            veto message, Governor Schwarzenegger wrote:

               I believe strongly in democracy and in honoring the will of  
               the people.  While this bill honors the will of the  
               majority of people voting for the office of President of  
               the United States across the country, it disregards the  
               will of a majority of Californians.

               I appreciate the intent of this measure to make California  
               more relevant in the presidential campaign, but I cannot  
               support doing it by giving all our electoral votes to the  
               candidate that a majority of Californians did not support.

               This is counter to the tradition of our great nation which  
               honor states rights and the unique pride and identity of  
               each state.

            AB 45 (Maze) of 2005 provided for California's electoral votes  
            to be divided proportionately among presidential tickets based  
            on each ticket's share of the popular vote in the state.  AB  
            45 failed passage in this committee by a vote of 3-2.

          AB 2 (Benoit) of 2005 would have allocated California's  
            presidential electors based on the winner of each  
            congressional district, instead of the winner of the statewide  
            vote.  AB 2 was never heard in committee.

          AB 2003 (Longville) of 2004 would have provided that voters  
            shall vote directly for Presidential electors, rather than  
            voting for candidates for President and Vice President at the  
            general election.  AB 2003 was held on the Assembly  
            Appropriations Committee's suspense file.

          AB 45 (Strickland) of 2001 would have allocated California's  
            presidential electors based on the winner of each  
            congressional district, instead of the winner of the statewide  








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            vote.  AB 45 failed passage in this committee.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          National Popular Vote (sponsor)
          American Federation of State, County and Municipal Employees
          California Common Cause
          FairVote
          Secretary of State Debra Bowen
            Southwest Voter Registration and Education Project

           Opposition 
           
          Capitol Resource Institute
          Concerned Women for America of California

           Analysis Prepared by  :    Ethan Jones / E. & R. / (916) 319-2094