BILL ANALYSIS Ó
AB 459
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Date of Hearing: April 12, 2011
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 459 (Hill) - As Amended: March 31, 2011
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)Allows any state of the United States and the District of
Columbia to 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 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;
6)Provides that, in the event of a tie for the national popular
vote winner, the presidential elector certifying official of
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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 in effect in states cumulatively
possessing a majority of electoral votes as of July 20 of that
year (six months prior to the beginning of the next
presidential term);
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 FEDERAL LAW :
1)Requires each state to appoint, in a manner that the
Legislature of the state directs, a number of electors of
President and Vice President equal to the number of Senators
and Representatives to which the state is entitled in
Congress.
2)Requires the electors of President and Vice President to be
appointed in each state on the first Tuesday after the first
Monday in November in every fourth year succeeding every
election of a President and Vice President.
3)Requires the electors of President and Vice President of each
state to meet and give their votes on the first Monday after
the second Wednesday in December following the presidential
election.
EXISTING STATE LAW :
1)Provides that the Presidential ticket that receives the
greatest number of votes in the state will receive all of
California's electoral votes.
2)Requires each political party to select its slate of electors
in accordance with established party procedures.
3)Requires the Secretary of State (SOS) to certify the electors
receiving the highest number of votes statewide in a general
presidential election.
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of the Bill : According to the author:
California is ignored in the general elections of
Presidential campaigns. Candidates do not visit our state,
they do not advertise here, poll here, conduct field
operations, send mail, or engage in any of the other normal
campaign activities. The one exception is that they do
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fundraise in California ($150 million collected in 2008).
However, once the money is collected, it is spent almost
completely outside our borders.
In the 2004 and 2008 general elections, neither President
Bush, Senator Kerry, Senator McCain, nor Senator Obama
conducted a single non-fundraising event in California.
The combined television advertising of those four campaigns
in our state was less than $30,000. Every state legislator
elected in 2004, 2006, 2008, and 2010 spent more money in
their campaign for the Legislature than any of the
presidential candidates spent advertising in the entire
state during their general election campaign.
Presidential candidates that do not campaign in California
do not have to focus on California issues. Issues
fundamentally important to California, whether it be
agriculture, water, high technology, Pacific Rim trade,
etc. are pushed aside while candidates pander to
Pennsylvania and the other "battleground" states. This
preferential treatment continues once Presidents assume
office.
AB 459 seeks to change this inequity. AB 459 will enter
California into an interstate compact that will result in a
national popular vote for President. A presidential
campaign where the candidate receiving the most popular
votes in all 50 states (and the District of Columbia) is
guaranteed to win will force candidates to campaign in
California and around the country. Every vote in every
state will matter in every presidential election.
California is not alone in being an afterthought in
presidential general elections. Fully two-thirds of the
voters in this country are disregarded by the presidential
candidates. They live in "fly-over" states where one party
dominates during presidential campaigns. "Fly-over" states
are in all shapes and sizes: big Democratic states (ex.
California), big Republican states (ex. Texas), small
Democratic states (ex. Vermont), small Republican states
(ex. Wyoming), and 30 or so other states. The common bond
these states share is that neither presidential candidate
pays any attention to them.
The flip side is the so called "battleground" states.
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These are the 16 or so states where presidential campaigns
spend virtually all of their time, money, and attention.
99% of the post-convention election general visits by the
presidential candidates in 2004 and 2008 were in just 16
states. Similarly, 98% of all their television
advertising, the single largest expense in a presidential
campaign, was also spent in just 16 "battleground" states.
A national popular vote will fundamentally alter the way
presidential campaigns are conducted. "Fly over" and
"battleground" states will be a thing of the past. If the
objective is to accumulate the most votes, as opposed to
winning or losing a particular state, then there will be
incentive for candidates to compete for every vote in every
state. Every vote will be equal and California will no
longer be ignored.
2)Electoral Votes : Section 1 of Article II of the United States
Constitution provides, in part, that "Ýe]ach State shall
appoint, in such 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 one electoral
vote to the Presidential ticket that receives the greatest
number of votes in each Congressional district in the state,
and two 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, since
adopting this system of electoral vote allocation, Maine has
always awarded all electoral votes to the candidate who won
the statewide vote. Nebraska split its electoral votes
between different Presidential campaigns for the first time in
2008, when John McCain and Sarah Palin earned four electoral
votes for winning the statewide vote and for winning in two of
the state's three congressional districts, while Barack Obama
and Joe Biden earned one electoral vote for winning in one of
the state's congressional districts.
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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 methods 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.
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
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)Legislation in Other States : According to information from
National Popular Vote, the organization that is the source of
this measure, the interstate compact included in this bill has
been ratified by six states (Hawaii, Illinois, Maryland,
Massachusetts, New Jersey, and Washington) and by the District
of Columbia. Beginning with the 2012 presidential election,
those six states and the District of Columbia collectively
will have 74 electoral votes. Because the compact does not go
into effect until the members of the compact collectively have
a majority of the electoral votes, the compact needs to be
ratified by states with an additional 196 electoral votes
before it can go into effect.
National Popular Vote additionally reports that legislation to
ratify the interstate compact included in this bill has been
introduced in all 50 states, and legislation to ratify the
compact has been approved in at least one house of the
Legislature in 14 of the 44 states that have not already
ratified the compact.
4)No Amendments : For interstate compacts to go into effect,
each member state must enact the same compact. While
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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
by this bill without also making changes to the enacted and
pending legislation in other states.
5)Arguments in Support : In support of this bill, California
Common Cause writes:
The current Electoral College system is thought to
accurately reflect the will of the voters. We now know
better. A shift in a handful of votes in one or two states
would have elected a second-place candidate in 5 of the
last 13 presidential elections (including 2004).
The state-by-state method in which the winner takes all is
clearly not "one person, one vote." In California, we have
55 electoral votes that go to the winner and yet voters of
all political parties in California are ignored by
presidential candidates who spend all their time and
political capitol courting votes in battleground states
such as Ohio and Florida?
In four of 56 presidential elections, we have elected a
president who came in second place. Without the clear
support of the nation, the presidency becomes a weaker
institution. Polls show that more than 70% of Americans
support a move to use the national popular vote for
presidential elections. It is time for California to move
this process one big step forward by adding it to the list
of states that have already enacted National Popular Vote.
6)Previous Legislation : AB 2948 (Umberg) of 2006, and SB 37
(Migden) of 2008, were identical to this bill. AB 2948 and SB
37 were vetoed by Governor Schwarzenegger. In his veto
message to SB 37, Governor Schwarzenegger wrote:
As I stated in vetoing similar legislation in 2006, I
believe strongly in democracy and in honoring the will of
the people. This bill represents a significant departure
away from letting each individual state choose how to award
its presidential electoral votes and towards a national
vote for president. Because California's endorsement of a
national popular vote would significantly change the debate
on the matter, enactment of this bill would represent a
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major shift in the way not only Californians but all
Americans choose their president. Such a significant
change should be voted on by the people. As such, I cannot
support this measure but encourage the proponents to seek
approval of the people for the changes it proposes.
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REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
California Common Cause
Secretary of State Debra Bowen
Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094