Jo Becker of the Washington Post reports on Amendment 36 (PDF), a Colorado ballot initiative that would divide up the state’s electoral votes in proportion to the total votes cast. Some analysts think this is unconstitutional. Article II, Sec. 1 of the U.S. Constitution requires each state to choose its electors “in such manner as the legislature thereof may direct,” a requirement which could potentially be read to prohibit voter initiatives. I think that objection is a loser. Courts have routinely upheld ballot iniatives against similar challenges, on issues ranging from the drawing of legislative districts to more general attacks on initatives as un-republican. It is likely that the courts will take the same view here, and rule that to the extent that Colorado voters are authorized to pass a law under Colorado law, they are the Legislature for purposes of the federal Constitution.

That’s not to say this initative is unproblematic, however. By taking effect on election day, it appears to be a blatant violation of 3 U.S.C. 5, the safe harbor provision that insulates a state’s slate of electors against a challenge in congress. That statute provides as follows:

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.
[Emphasis added.]

Note that this statute is a safe harbor, not an explicit requirement. Thus, Colorado’s failure to elect its electors by laws enacted prior to November 2 is not illegal per se. It does mean, however, that if Amendment 36 passes, Colorado’s slate of electors may be open to a challenge.

UPDATE: Zombyboy, a Coloradan against electoral chaos, has more good stuff.

UPDATE x2: So does Jed (via Zombyboy).

UPDATE x3: Ari Armstrong, by contrast, offers a really stupid argument against Amendment 36, which he brands as “ex post facto” (a concept that applies only to criminal statutes). Once you get past that boner, however, he does offer some decent historical arguments, though.

I’ve been going through troll-withdrawal for a while. Thanks to Raj for giving me that much-needed fix. Your job here is done, now go away.

UPDATE: [Deleted, for reasons having nothing to do with the dumb aleck who is the subject of this post.]

CBS has new exclusives on the Bible, the JFK assasination, the long lost gay marriage amendment, and more. Roy Rivenburg has the scoop.