The second most important election in the country?
A proposed amendment to the Colorado Constitution would award that state's 9 electoral votes proportionally based on percentage of the popular vote (instead of winner take all). It seems likely to pass, and will take effect on November 3rd (the day following the election). It is intended to apply to this year's vote in the electoral college.
If it were in effect in 2000, Al Gore would be president.
Colorado went 50% to 42% in favor of Bush in 2000 and would have gone 5-3 in the electoral college under the current proposal (Colorado gained one representative in reapportionment). One recent poll of likely voters puts the race at 48% for Bush to 44% for Kerry.
CBS News has the story, which explores two potential constitutional problems.
The first is that Colorado voters cannot by ballot initiative take away from the state legislature the constitutional responsibility to "appoint" presidential electors. Indeed, the Constitution specifically states that "Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." The battle of Amendment 36 will center therefore on what the meaning of the word "legislature" means.
According to the Colorado Constitution,
The legislative power of the state shall be vested in the general assembly consisting of a senate and house of representatives, both to be elected by the people, but the people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly and also reserve power at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.
The second problem, according to CBS:
Opponents of the initiative will argue that even if it is the exercise of legitimate power by the voters, its impact on the actual Electoral College vote ought to first take place for the 2008 election, after, presumably, it is vetted by however many courts want to vet it. Proponents of the Amendment will say that the Colorado Supreme Court suggests that the temporal problem is not a legal problem unless the voters do not get ample notice of the effect of the initiative. Anticipating this argument, these proponents have been shouting at the rooftops about Amendment 36 in order to try to subsequently ward off this lack-of-notice argument in court.
There is a third potential legal challenge. According to the 1878 Electoral Count Act, it is the laws made prior to election day that are controlling. Under this law, it would seem as though the amendment could not take effect.
To further complicate things, the Electoral Count Act could be unconstitutional. Article II Sec. 1. Clause 2 of the U.S. Constitution provides that "Each State shall appoint" electors "in such Manner as the Legislature thereof may direct." If Colorado wants to change the rules the day before the Electoral College meets, it seems as though they are free to do so. In Article I. Sec. 4. Clause 1., concerning the election of the congress, the framers intended to grant authority to the state's with a remainder for the federal government, and they did so explicitly:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
For more on the dubious constitutionality of the Electoral Count Act, see an article by Vasan Kesavan (80 NCLR 1653).
Come November, we could see state and federal challenges which allege that Amendment 36 usurped the legislature's authority, that it violates the Electoral Count Act, and that the 1878 Act is unconstitutional. It could also be that the exact split of Colorado electoral votes is decided by a small handful of popular votes (Bush won the 2000 presidential election by one electoral vote).
What a mess.