BILL ANALYSIS
SB 37
Page 1
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;
SB 37
Page 2
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,
SB 37
Page 3
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
SB 37
Page 4
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.
SB 37
Page 5
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
SB 37
Page 6
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
SB 37
Page 7
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.
SB 37
Page 8
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
SB 37
Page 9
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