Is Colorado the new Florida?

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.

Comments

[Kevin Murphy]

To all intents and purposes Colorado is changing their electoral vote count to 1 (or maybe 2) votes by this measure. Rarely will a contest go other than 5-4 in this scheme.

This will leave them with no clout whatsoever in presidential politics. All it will accomplish is in THIS election to deprive Bush of 5 votes. Why a Bush voter would vote for this is beyond understanding. Why any voter who cares about "the long run" would vote for this is also hard to follow.

I wonder if this were to take effect in 2008 if anyone would vote for it, which might bring up the 2-subject-rule issue as well. OK, maybe not.

[Kim Scarborough]

"If it were in effect in 2000, Al Gore would be president."

Would it? I actually spent a morning figuring this out a while ago. See http://www.unknown.nu/kim/journal/archives/2004_02.html#000224 if you're interested. Basically, under a proportional system in 2000, Nader would have peeled off enough electoral votes to make it rather crazy.

[mrsizer]

As a Denver resident, I'm hoping this goes down in the flames it deserves. I've talked to two people today who didn't even know what it is or why it's a bad idea.

Although it would save Denver a lot of money, we've had several visits this year - security is expensive. We'd never have to worry about that again.

BTW: I rather like the Nebraska and Maine idea: By congressional district.

[DM Andy]

Kim, I assume that the "if it was in effect in 2000, Gore would be President" means if *only* Colorado split it's electors proportionately then instead of Colorado going 8-0 to Bush, it would have been 5-3 to Bush. If that was the case then Gore would have won 270-268 even without Florida.

[DM Andy]

Actually, as the split is 5-3 Bush on here and 4-3-1 on Kim's site, I thought I would check and I think 2000 would have been 4-4

8th elector (after the first 7, Bush leads 4-3)
Bush 883,745 votes, 883745/(4+1) = 176,749
Gore 738,227 votes, 738227/(3+1) = 184,557
Nader 91,434 votes, 91434/(0+1) = 91,434

Therefore the 4th Gore elector is elected and Colorado would be split 4-4.

Colorado wouldn't have elected a Nader elector until the 18th elector, Bush 9, Gore 8, Nader 1 and wouldn't have chosen a Harry Browne elector until the 134th elector, Bush 69, Gore 57, Nader 7, Browne 1

[flaime]

Mr. Sizer:

Maine and Nebraska aren't strictly by congressional district. Only 1 vote per district is actually determined by that. The votes in excess of that total are determined by the overall winner of the state.

Their systems could conceivably result in all of the "at-large" electoral votes going to a candidate who didn't win any of the congressional district votes (not necessarily a bad thing, but probably not the way you are indicating you believe it works).

[Bruce Hayden]

One other thing that may make this even more interesting is that AG Salazar is the Democratic candidate for the open Senate seat. If things are that close, he may win (though I am voting for Coors, I expect Salazar to win regardless). He showed he was willing to selectively defend Colo. laws on the reapportionment issue, but I have no doubt that he would file suit on behalf of the state to defend this, should it pass.

But then, when he is sworn into the Senate, he would give up being AG, and more than likely, a Republican nominated to replace him. So, there is a possibility that this change in AG party could affect the outcome of this issue.

Also, I expect that 6 years of a Republican governor has probably not undone 20 years of Democrats, in the composition of the Colorado Supreme Court. So, I expect another split (4-3) decision in favor of the Democrats here, and thus, again, appeal to the U.S. Supreme Court.

[Mike]

When did the "winner take all" concept come in to the various states? In California, at least, two large cities, Los Angeles and San Francisco, can deliver all 55 votes to one or the other (and in the case of California, to Kerry). And this time, they most likely will.

[Steven Jens]

DM_Andy, you've made an assumption that the amendment would allocate electors using the d'Hondt method (http://d-hondt-method.wikiverse.org/), which isn't the case. The drafters of Amendment 36 are, apparently, less sophisticated than you. According to the text of the amendment — available at the link immediately under the cartoon at http://www.lawanddemocracy.org/amend36.html — the allocation is done by dividing each candidate's total by the number of votes cast, multiplying by the number of electors, and rounding off. If there are remaining electors, they go to the plurality winner; if more are allocated than Colorado has, the extras are taken from the weakest candidates.

Using the vote totals you give, and assuming that any other votes cast are immaterial, the first step gives four for Bush, three for Gore, and zero for Nader. Since there's one elector left, it goes to Bush.

[DM Andy]

Thanks Steven, I assumed the D'Hondt method because I thought that was the only way to do it but this is an interesting mixture of proportional and winner-takes-all. I reckon that makes Colorado worth 3 electoral votes as a losing candidate needs to get to 4/9ths to make it a 5-4 split.

The second bit makes me whether if the drafters of the proposal know anything about maths. If electors are being awarded on the basis of full quotas then there cannot be a case when more electors are allocated.

[DM Andy]

Oh and another point against the Amendment. Consider the 1992 election, at the time Colorado had 8 votes in the electoral college

Clinton 40.1%
Bush 35.9%
Perot 23.3%

Bush gets 2 quotas, nearly enough for 3, Perot gets 1 and is just short of 2, Clinton gets 3 and the 2 left over for 5 EVs

But if Colorado had 9 electors the whole situation would be different, Bush would have 3 quotas, Perot 2 and Clinton would have 3 plus the one left over for 4 EVs. That's a very different result with the same vote totals. The D'Hondt totals would be 3-3-2 and 4-3-2 respectively.

[Dean Jens]

There still seems to be trouble understanding the allocation procedure. In 1992, for example, Bush and Clinton each get 3 electors and Perot gets 2 because the number allocated in the initial procedure is rounded off, not truncated. (For mathematically illiterate lawyers, the inititative actually defines "round off", and does so in the standard way: fractions equal to or greater than .5 are rounded up to the next whole number, not down.) Because of this, the second place candidate needs 3.5/9 or about 38.9% of the vote to effect a 5-4 split.

I might be willing to entertain a d'Hondt method proposal that was to take effect in the next cycle, but there are so many simply ill-considered details in this proposal for me not to mock mercilessly anyone who suggests that they would vote for it for any but venal partisan reasons.

[DF]

Regarding the meaning of "legislature", the fact that the Colorado constitution contains restrictions on the right of the legislature to make laws does not necessarily mean that what we call the Legislature is not the legislature for purposes of Article II. In 1892, in McPherson v. Blacker the Supreme Court implied that there are limits on the extent to which a state constitution can constrain the legislature in the specific task of directing the method for appointing electors, although they didn't elaborate.

Congress does explicitly have the constitutional right, not to determine how electors are chosen, but to determine the timeframe over which electors are chosen; while the parts of the Electoral Count Act that purport to bind Congress in counting the votes are probably not actually binding, the parts that tell the states when they can hold the elections are.

If a legislature, following the election, decided to count Kerry votes for Bush and vice versa and appoint electors accordingly, I cannot imagine that this would be allowed; and this could not be cured by having the legislature say beforehand "we might ultimately decide to legislate this switch, or we might not". Electors are supposed to be appointed on November 2; I don't think the fact that in some cases the results are not knows for days or weeks can be said to mean that the electors were not actually appointed then, but the same is not true where the voting rule itself was not in place on November 2. I don't think the current proposal to vote and decide later differs in any meaningful way from my hypothetical.

[Dean Jens]

Incidentally, let's work a hypothetical example on apportionment.

Only 18 voters from the state of Colorado cast ballots -- to make the math easier. 10 vote for Bush, 7 for Kerry, and 1 for Nader. Bush gets 5 electoral votes, Kerry gets 4, and Nader loses his on the grounds that Colorado only has 9 electoral votes.

Now suppose another person votes, this time for Badnarik. Now Bush gets 5 electors on the first pass, but Kerry only gets 3; the other two fail to get even one elector. But the remaining elector now goes to Bush, by virtue of his plurality win. Thus the addition of another voter, voting for a candidate who doesn't even earn an elector, has shifted an elector from Kerry to Bush.

[DM Andy]

The more I hear about this system the more it seems to suck, both in it's retroactivity and it's operation. However if I was a Kerry supporter in Colorado I would vote for it, it will gain Kerry 3 or 4 EVs he wouldn't otherwise receive and if he he wins Colorado, getting 5 EVs instead of 8 won't matter as he'll be on his way to the White House.

[Peter]

I find it rather interesting that the Colorado initiative is being funded by some wealthy Democrats from California. If this proportional rationing of electors is such a wonderful idea, why did the sponsors not pursue it for their own state?

[Chris]

As an engineer by training, I can respect the points made in this forum regarding the corner case issues as well as the potential underlying unfairness of the apportionment of electors outlined in Amendment 36. That said, I still strongly support the Amendment because of its attempt to return us to a more equitable system of electing our President. The Electoral College of our Founding Fathers had no winner-take-all rule; this is an artifact of large political parties putting forth "slates" of electors and encouraging party members to vote slates rather than for individual electors. The result of the winner-take-all system of apportioning electoral votes is to lock the U.S. forevermore into a strict 2-party system, which I do not believe is good for the country in the long run. If we fix the "big picture" now, it will be significantly easier to tune the (comparatively minor) issue of how to properly allocate the electoral votes once the concept of moving away from a "winner-take-all" system has been approved. It will be extremely difficult to get this concept re-introduced if it is defeated in this election. Basically we are quibbling over *how* when we should be discussing *what* - this Amendment, flawed though it is, is a great step toward fairness and rationality in how we elect our President.

[Mark Scarberry]

Here is a post I just made to an internet list made up mostly of constitutional law professors:

Of course there has been discussion of whether Colorado's voters may act as the state's "Legislature" under U.S. Const. Art. II, sec. 1, cl. 2. Only if so may the voters change by initiative the manner of selection of presidential electors. I think it is doubtful (at least) whether they may do so. But the question whether the initiative may be applied to the 2004 choice of electors does not seem to me to be a close question at all.

The initiative would add a new section 13 to Article VII of the Colorado Constitution. Section 13 would provide for proportional division of presidential electors. The initiative states explicitly that "This section [i.e., section 13] shall be effective on and after November 3, 2004." See numbered paragraph (9) of the initiative, the text of which may be found at http://www.lawanddemocracy.org/amend36.html. (One of my students, who happens to be the proprietor of http://politics.blogs.com, surprised me by telling me that the initiative had an explicit Nov. 3 effective date, and the text bears him out.)

The initiative does provide that it is intended to have retroactive effect so as to apply to the election held on November 2. But I believe it cannot have that effect. Article II, sec. 1, cl. 4 provides that "The Congress may determine the Time of chusing the Electors ... ." Congress has done so in 3 U.S.C. section 1:

"The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President."

Thus Colorado must "chuse" its electors on November 2. Colorado will do so by vote of its people on November 2. The choice will be made under the existing "winner take all" approach, which will still be in effect on that date even if the initiative passes. The state could only choose electors after November 2 if there was a failure to choose them on November 2 (see 3 U.S.C. section 2) or if an elector position becomes vacant (see 3 U.S.C. section 4).

By its terms, the new section 13 added by the initiative (if it passes) would not go into effect until November 3. The only way it could be given effect for this election would be for it to have the effect of "un-chusing" the electors that were chosen on November 2 and replacing them after that date with new electors. The federal statute, enacted pursuant to Art. II, sec. 1, cl. 4, does not permit that.

Perhaps there is a feature of the Colorado Constitution providing that initiative measures cannot go into effect until the day after an election. Otherwise I don't understand why the initiative drafters would have drafted it with a November 3 effective date. But in any event, that is the effective date, and I do not see how it can be given retroactive effect without violating federal law.

Am I missing something?

Mark S. Scarberry
Pepperdine University School of Law

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