There is a report in the Sacramento Bee today that Art Torres, Chair of the California Democratic Party, is claiming that the "California Counts" initiative, which would reform California’s apportionment of electoral college votes to recognize regional diversity and make our state relevant again in Presidential elections, is unconstitutional. That position is a bunch of baloney.
Long established U.S. Supreme Court case law (see Smiley v. Holm, 285 U.S. 355 (1931) and Davis v. Hildebrant, 241 U.S. 565 (1911) ) provide strong logic and support for the initiative. Those cases establish rock-solid support for the proposition that the word "legislature" in Article 1 of the U.S. Constitution, dealing with apportionment of Congressional districts for election purposes, includes the lawmaking process in the state as determined by its particular "polity." In these cases, "legislature" in Article 1 was interpreted to include not only the state legislature itself, but the full lawmaking process, including the Governor’s veto, and the people’s power of referendum.
In California, all power, including the power to act as the "legislature," is reserved to the people in our state constitution. The "polity" of our lawmaking process includes initiatives, and the initiative process in California was placed in the state constitution about the time of the Smiley and Davis cases. Court’s are compelled to follow Supreme Court precedent, and there is very strong logic that the same analysis actually applied by the Supreme Court under Article 1 to Congressional elections will be applied under a review of the "California Counts" initiative under Article 2 for Presidential elections of the Constitutionally coequal Executive branch. In other words, these same rules apply to the coequal Congressional and Executive Powers, and if the Supreme Court already has determined that referenda is action of the "legislature" in Ohio (under Article 1), then Courts will find that initiative is action of the "legislature" in California (under Article 2).
Loyola Law Professor Rick Hasen is quoted in the article. Rick provides a fine service for election lawyers through his blog. And Rick is a brilliant lawyer. Rick states the law accurately in the news report. Rick tries to be neutral, but he has been associated with liberal legal causes in the past, and I believe he has greatly underplayed the Article 1/Article 2 "coequal" analysis, which is such a strong argument that even reluctant observers who understand the law should agree that even in a close call (which it is not), the likelihood is a reviewing court will uphold the California Counts initiative, and California will be relevant again in Presidential elections.