In 2008, Bush v. Gore Redux?

By BOB HERBERT, Published: September 22, 2007

Right now it’s just a petition drive on its way to becoming a ballot initiative in California. But you should think of it as a tropical depression that could develop into a major storm that blows away the Democrats’ chances of winning the White House next year.

And it could become a constitutional crisis.

It’s panic time in Republican circles. The G.O.P. could go into next year’s election burdened by the twin demons of an unpopular war and an economic downturn. The party that took the White House in 2000 while losing the popular vote figures it may have to do it again.

The Presidential Election Reform Act is the name of a devious proposal that Republican operatives have dreamed up to siphon off 20 or more of the 55 electoral votes that the Democrats would get if, as expected, they win California in 2008.

That’s a lot of electoral votes, the equivalent of winning the state of Ohio. If this proposed change makes it onto the ballot and becomes law, those 20 or so electoral votes could well be enough to hand the White House to a Republican candidate who loses the popular vote nationwide.

Even Gov. Arnold Schwarzenegger, a Republican, has suggested that the initiative is a form of dirty pool. While not explicitly opposing it, Mr. Schwarzenegger said it smacks of changing the rules “in the middle of the game.”

Democrats are saying it’s unconstitutional.

The proposal would rewrite the rules for the distribution of electoral votes in California. Under current law, all of California’s 55 electoral votes go to the presidential candidate who wins the popular vote statewide.

That “winner-take-all” system is the norm in the U.S.

Under the proposed change, electoral votes would be apportioned according to the winner of the popular vote in each of California’s Congressional districts. That would likely throw 20 or more electoral votes to the Republican candidate, even if the Democrat carries the state.

A sign of the bad faith in this proposal is the fact that there is no similar effort by the G.O.P. to apportion electoral votes by Congressional districts in, for example, Texas, a state with 34 electoral votes that is likely to go Republican next year.

Longtime observers in California believe the proponents of this change — lawyers with close ties to the Republican Party statewide and nationally — will have no trouble collecting enough signatures to get it on the ballot in June. The first poll taken on the measure, which is not yet widely understood by voters, showed that it would pass.

Laurence Tribe, a Harvard law professor and one of the nation’s pre-eminent constitutional scholars, believes the initiative is blatantly unconstitutional. “Entirely apart from the politics,” he said, “this clearly violates Article II of the Constitution, which very explicitly requires that the electors for president be selected ‘in such manner as the Legislature’ of the state directs.”

In Mr. Tribe’s view, the “one and only way” for California to change the manner in which its electoral votes are apportioned is through an act of the State Legislature.

Professor Tribe is not a disinterested party. He represented Al Gore in the disputed 2000 presidential election. And not all constitutional experts agree that this would be such an easy call. “This is not an open-and-shut case,” said Richard Pildes, a professor at the New York University School of Law.

What is undisputed is that the Democrats will mount a ferocious legal challenge if the ballot initiative passes — “maybe even before it has a chance to pass,” a Democratic source said yesterday — thus opening the door to an ugly constitutional fight reminiscent of Bush v. Gore in 2000.

The potential for trouble in the event of a close election is huge. Said Professor Tribe: “This is really a prescription for a possible constitutional crisis in which we have one president if California electors act in accord with the method set out by the State Legislature, and another president if the electors are divided according to this ballot initiative.”

The operatives behind the initiative are experts at causing trouble. The effort is being led by Thomas Hiltachk, a lawyer who was one of the leaders of the successful effort to recall California Gov. Gray Davis in 2003.

Politics is not just hardball to this crowd; it’s almost literally a fight to the death.

The proponents of the initiative understand completely that a constitutional crisis could damage the nation’s democratic process and undermine the legitimacy of a presidential election. In their view that’s preferable to a Republican defeat.

California voters would be doing themselves and the nation a favor by soundly defeating this poisonous initiative if it makes it onto the ballot in June.