Direct Democracy and Article II: Additional Thoughts on Initiatives and Presidential Elections

In this essay, I focus on the first of the two questions Professor Richard Hasen's graceful and thoughtful essay on whether "initiated changes to rules for choosing Presidential electors violate Article II." Everything Professor Hasen has said on this score is helpful. To the extent that I go beyond Professor Hasen's bottom line of equipoise on this issue and assert (as I do) that Article II should not be read to foreclose (even ill-advised) initiative proposals such as California's (now moot) "Presidential Election Reform Act," it is because I do more of what Professor Hasen has done in his piece. Namely, I look closely at places other than Article II where the Constitution uses the phrase "legislature of the States" and carefully examine Supreme Court cases on the topic. My own plowing of the ground Professor Hasen stakes out leads me to a firmer conclusion than the one he ventures.