BILL ANALYSIS                                                                                                                                                                                                    





                         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 
          AB 459 (HILL)                                          Page 
          2  
           







             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,

          AB 459 (HILL)                                          Page 
          3  
           







           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 
          AB 459 (HILL)                                          Page 
          4  
           







          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 
          AB 459 (HILL)                                          Page 
          5  
           







             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. 
              
          AB 459 (HILL)                                          Page 
          6  
           








           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
           
          AB 459 (HILL)                                          Page 
          7  
           







          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





























          AB 459 (HILL)                                          Page 
          8