Colorado has a measure on the ballot that would split its electoral votes by proportion to the state’s popular vote. What if one of the candidates needs all the votes but the measure passes and splitting the votes changes the outcome, will the proportioning of the votes be upheld in the courts? Is this measure a proper way for a state to change the way its electoral votes are given?
I don’t see what would be improper about this. Strictly speaking, each state is allowed to choose whatever method they want to apportion their electoral votes, so long as the method is to some degree republican (as in, representative democracy, not as in Bush et al’s political party). It so happens that currently, most states give all of their electoral votes to the candidate who has the most popular votes, but that’s not the only way it can be done. It used to be standard for the state legislators to choose the electors, for instance (this is republican because the legislators are themselves elected by the people). So if Colorado decides to change the way they allocate electoral votes, they’re allowed to do that, and that’s the way that Colorado’s electoral votes are allocated. If this changes the outcome of the presidential election, well then that’s just tough for the guy who loses.
It’s worth noting that both Maine and Nebraska currently use a system similar to the one proposed in Colorado, although neither has very many votes (four and five, respectively, versus Colorado’s nine.)
The problem I see is that it supposed to be up the legislature according to the Constitution. So is this method (having the people directly vote) valid?
I appears to me like you just made your own point. Am I missing something? The phrase
seems to clearly indicate that whatever law the legislature of a given state enacts to appoint electors is OK by the constitution. Well, as long as it doesn’t conflict with other parts of the constitution, of course (such as voting rights, etc).
Chronos has it in a nutshell. The sole thing the Constitution says on the subject is that the President is to be chosen by electors, and that the electors are chosen as the State Legislature may determine. The idea that the popular-vote winner in a given state takes all that state’s electors has been a popular one in the past, but is not mandated except by acts of 48 state legislatures (excluding Nebraska and Maine), which can be reversed by those legislature at any time.
You might work up a constitutional challenge that a referendum is not “the decision of the state legislature” – but I think you would be laughed out of court; the matter is on the ballot in accord with Colorado’s rules for self-government, which were no doubt produced by the legislature and ratified by the people in some manner or other. (I don’t know how Colorado’s laws regarding referenda work and don’t need to – my sole point is that “the will of the people” and “the decision of the legislature” are ultimately synonymous; allowing a referendum is not violating the Constitutional requirement.)
If the referendum is legally pursued under Colorado law, and it wins, then the legislature will later officially be certifying the electors in such manner as the Legislature thereof may direct according to the new application of state law as a formality.
That the Colorado legislature previously approved of the referendum process is enough to satisfy the US Constitutional requirement. Likewise the Maine and Nebraska systems are perfectly legal, regardless as to whether or not they were instituted initially by referendum.
Upon further research it appears that Colorado’s plan is actually slightly different. Maine and Nebraska appoint an elector for the winner of each Congressional district, and two electors for the winner of the state as a whole. It seems Colorado intends to set up a strict proportional system, where the electors would be proportional to the popular vote of the whole state, regardless of the Congressional district.
I don’t agree at all, Polycarp. I believe a judge could easily find a difference between an act of the legislature and the result of a referendum. I have read (somewhere) that that is one of the specific reasons why Colorado was chosen for this: there is apparently existing state case law that a referendum is the equivalent of an act of the legislature. It’s certainly possible that a case against it could lose, but I hardly think it will be laughed out of court. Another possibility for a court challenge is that it would applied sort of retroactively - to the slate of electors that had been chosen in the same election.
Two separate issues: (1) Can Colorado change the manner in which it elects electors by initiative instead of legislative action; and (2) can the change apply concurrently to the 2004 election?
Concerning (1):
Article I of the Constitution grants state legislatures power over the “times, places, and manner” of Congressional elections in language very similar to that concerning “elector elections” in Article II. Since the “times, places, and manner” clause serves as the basis for state power over Congressional districting, it has been heavily litigated. Despite the fact that Article I appears to exclusively empower the legislature, SCOTUS has held redistricting to be an ordinary exercise in state lawmaking, subject to whatever constraints a state Constitution may impose in terms of gubernatorial veto (Smiley v. Holm), substitution of initiative or referendum for legislative action (Ohio ex rel Davis v. Hildebrant), or judicial intervention (Colorado General Assembly v. Salazar, cert denied).
Under a parallel reading of Article II, this initiative would pass muster. See Smiley v. Holm for the best discussion of the various functions of a state legislature under the federal Constitution. There are important distinctions; in Hawke v. Smith, for example, the Court found that an initiative cannot substitute for legislative action in ratifying a constitutional amendment. However, I believe that setting the rules for a presidential election is more like redistricting than like ratification of a constitutional amendment. See this article for additional discussion.
Concerning (2):
This strikes me as much more problematic–possibly a “due process” violation, or even an ex post facto law. Surely a Colorado voter has the right to know how their presidential vote is going to be counted before they vote. To anyone contemplating a vote for Nader, for example, it could make a critical difference whether Colorado votes under the old system (in which 9 electoral votes are in play between Bush and Kerry, and third parties have no hope of getting any) or the new (in which only one vote is in play between Bush and Kerry, and a third party could gain an electoral vote with as little as 5.56% of the popular vote). My point being, I don’t see how you can change the rules for an election via an initiative that isn’t certified until after the election is over.
Though I dislike your conclusion, Freddy, I have to agree that your points are good and make sense. I’ve had no luck finding any situation where the electoral vote selection was changed by initiative, nor, it seems, have you found any that was litigated. So we’ll find out, won’t we? Quite frankly, if this election is as close as the last one, I hate to imagine the furor if this passes. I’d not like Colorado to be the Florida of 2004.
I would like to think that at least the clause applying it to the current election will be struck down.
We had a discussion on this last month. I raised the point that Kel raises, about the requirement that the electors be appointed in a manner directed by the Legislature, not the people directly. I wouldn’t say the argument would be laughed out of court, since it was one of the main critiques levelled at the Florida Supreme Court in 2000.
I also queried whether this approach would deprive the Colorado slate of electors of the “safe harbour” under federal statute law, which was an issue in the 2000 election. Congress has provided that if the state returns a slate of electors prior to a date in mid-December, the slate can’t be challenged in Congress, provided the mode of selecting the electors was set in state law prior to the election.
, so I stopped posting to it. If anyone’s interested in skimming it, it’s here: