Take the Constitutional Fight to the Conservatives

[courtesy of The California Majority Report]

op-ed last week in Slate, I chronicled how the text of the U.S. Constitution and Supreme Court precedent render "patently unconstitutional" a ploy by California Republicans to use a ballot initiative to change the method of appointing the state’s 55 electors. The case is strong, and I appear to have convinced many readers in California and elsewhere. Perhaps, in a way, I was too convincing.

Some Californians appear to have concluded from my piece that defeating the Presidential Election Reform Act ("the Act") can safely be left to the Courts. One blogger has even argued that opponents of the initiative should not "spend a dime" opposing the measure and should instead simply challenge the measure in court. That’s a really bad idea. 

First and foremost, no one in this country should want the courts decide another presidential election. While I think the Court’s decision in Bush v. Gore would actually hem the Court’s conservatives in here, Democrats, in particular, have reason to be leery of any strategy that could leave the outcome of the 2008 election in the hands of the U.S Supreme Court -- more conservative now than it was in 2000.

There are also tricky issues of timing. Opponents of the Act cannot even bring a challenge to the measure until its proponents raise the requisite number of signatures to secure a place on the June 2008 ballot. This will take months and opponents can’t afford to hold their tongues and fire during this period, when supporters of the Act will be all around the State promoting a proportional allocation system.