BILL ANALYSIS Ó
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Lou Correa, Chair
BILL NO: AB 459 HEARING DATE:
6/7/11
AUTHOR: HILL ANALYSIS BY:
Darren Chesin
AMENDED: 4/13/11
FISCAL: YES
SUBJECT
Electoral College: interstate compact
DESCRIPTION
Existing federal law requires all of the following
regarding the Electoral College:
Each state shall 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.
The electors of President and Vice President shall 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.
The electors of President and Vice President of each
state shall meet and give their votes on the first
Monday after the second Wednesday in December following
the presidential election.
Existing state law provides that the Presidential ticket
that receives the greatest number of votes in the state
will receive all of California's electoral votes and
requires each political party to select its slate of
electors in accordance with established party procedures.
The Secretary of State (SOS) must certify the electors
receiving the highest number of votes statewide in a
general presidential election.
This bill 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 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
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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.
BACKGROUND
Electoral Votes . Section 1 of Article II of the United
States Constitution provides, in part, that "each 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.
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
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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.
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 eight states (Hawaii, Illinois,
Maryland, Massachusetts, Maryland, New Jersey, Vermont, 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.
COMMENTS
1. 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.
Presidential candidates that do not campaign in California
do not have to focus on California issues. Issues
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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. When enacted
by a sufficient number of states (states totaling 270 or
more combined electoral votes), the compact will be
triggered and the candidate receiving the most popular
votes in all 50 states (and the District of Columbia) is
guaranteed to win the presidency.
A national popular vote will force candidates to campaign
in California and around the country. Every vote in
every state will matter in every presidential election.
That is not the case currently. Candidates focus all of
their time and resources on a handful of "battleground"
states. 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.
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.
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.
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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.
Candidates will compete and campaign for every vote in
every state. The voters of Ohio or Florida or New
Hampshire will no longer be more important than the 17
million voters in California. Every vote will be equal
and the candidate receiving the most votes will win.
2. Sorry, 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 by this bill without
also making changes to the enacted and pending
legislation in other states.
3. 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
stated, in part:
"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 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."
PRIOR ACTION
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Assembly Elections and Redistricting Committee: 5-1
Assembly Appropriations Committee: 14-2
Assembly Floor: 51-21
POSITIONS
Sponsor: Author
Support: American Civil Liberties Union
California Common Cause
FairVote
League of Women Voters of California
Secretary of State
Oppose: None received
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