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The 2012 Presidential Election & the Ghosts of Elections Past

Litigation Los AngelesEnvironmental Litigation  

Stephen T. Holzer

Two major events affecting the 2012 presidential election occurred last week. One got, and is still getting, national media attention. That would be the August 12 Iowa Straw Poll, in which Reps. Michele Bachmann (Minnesota) and Ron Paul (Texas) emerged as winners in that particular battle for the Republican nomination.

On the other hand, and garnering hardly any media notice at all, Governor Jerry Brown signed Assembly Bill 459 (Assemblyman Jerry Hill, D-San Francisco) into law on August 8.

The law assigns California electoral votes to the candidate winning the national popular vote. The former bill is the result of a movement sparked by the 2000 presidential election, in which George W. Bush won the presidency on the strength of electoral votes, even though Democratic opponent Al Gore won the national popular vote.

Anomalous as the election may seem, it also happened when Rutherford B. Hayes won the White House over Samuel J. Tilden in 1876, and when Benjamin Harrison took the presidency over incumbent Grover Cleveland, in 1888.

But what does Governor Brown’s move mean for the 2012 presidential election?

Probably nothing, for the next year or two, even though California’s endorsement carries quite a bit of weight. First, under AB 459, California’s participation in the measure first requires States with 270 electoral votes also to sign on. So far there are 134:


Electoral Votes

New Jersey15
District of Columbia3


The other reason we probably won’t see a significant move toward a direct national vote is because we can expect a rainstorm of legal wrangling, should the movement attain the 270 necessary votes.

The U.S. Constitution allows individual states to select electors as the States see fit; but some will argue that this does not permit (in this case, mostly larger) States to “conspire” together to reduce the electoral clout of other (smaller) States, as this measure would do (i.e., candidates would probably concentrate on large population areas to rack up the popular vote while ignoring some geographical regions of the country).

If the popular-vote measure ever goes into effect, the debate over its Constitutionality undoubtedly would ultimately be decided by the U.S. Supreme Court.

Stephen T. Holzer is a Los Angeles Civil Litigation Attorney and Chair of our Environmental Law Practice Group.


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