Coloradans for Electoral Chaos?
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.
October 31st, 2004 at 7:55 pm
[...] cism.This matter was raised by a blogger called “Xrlq,” who criticized my take on a first, second, and third web page. My letter to Xrlq is reproduced below. Xrlq [...]
September 18th, 2004 at 9:27 am
I suspect I would have fewer problems with this measure were it scheduled to take effect in 2008; at least there wouldn’t be any question of whether the amendment’s proponents were trying to pull a fast one in 2004.
September 18th, 2004 at 12:08 pm
Colorado Electoral Initiative a Bad Mistake
XRLQ, among others, discusses the Colorado electoral vote initiative, to be voted on in November, and worries that the retroactivity of the initiative will be a point of challenge if the election is close. Considering that the initiative makes the…
September 18th, 2004 at 4:12 pm
It seems to me that this all hinges on whether “enacted” in that portion of the United States code codifies into the actual time that this amendment has any effect or the ratification of said amendment.
September 18th, 2004 at 4:23 pm
Not sure I follow that. The vote on Amendment 36 will be held on November 2, 2004, which is also the day of the 2004 Presidential election. The Amendment is also supposed to take effect that day, thereby determining this year’s slate of electors. I can’t think of any nonfrivolous definition of “enact” under which one could plausibly argue that Amendment 36 was “enacted” prior to 11/2/04. Can you?
September 18th, 2004 at 10:30 pm
Six Pix from SoCal
Six sites that drew my attention today: Balloon Juice questions the Democrats’ negative campaign tone: “…every time they knock the vitriol up a notch, they get rewarded with a swift kick in the polls.” Speaking of knocking the vitriol up,…
September 19th, 2004 at 4:17 pm
What if the election were really close and Prop 36 was Yes/No by 100 votes or so? I don’t know Colorado election laws, but is there a possibility that this thing could hang up CO electoral slate past December?
September 19th, 2004 at 4:30 pm
Easily. In that case there would be two levels of chaos, first over 36 itself, and second, over the legitimacy of Colorado’s entire slate if 36 ultimately prevails.
One wonders whether Amendment 36’s proponents thought this far ahead when they came up with the brilliant idea of changing Colorado’s rules at the eleventh hour. If they really wanted 2004 election to turn on proportional representation among electors, couldn’t they have passed the law in 2002?
September 20th, 2004 at 10:40 am
My only hope is that the measure fails so dramatically that the rest of the debate is mooted or that Bush wins so handily that the extra electoral vote wouldn’t make a difference (I’m worried about the inevitable lawsuits that would follow, too).
September 21st, 2004 at 8:46 pm
Submitted for Your Approval
First off… any spambots reading this should immediately go here, here, here, and here. Die spambots, die! And now… here are all the links submitted by members of the Watcher’s Council for this week’s vote. Council links:Ra…
September 22nd, 2004 at 5:49 pm
Not all of Armstong’s arguments are stupid. OK, I buy your comment on ex post facto, and the constitutional argument re. legislative vs. initiative is week. But I think the rest holds up pretty well. I’m more than happy, though, to be further enlightened.
And thanks, XLRQ, for the link as well.
Quae mira diu experti summus
September 22nd, 2004 at 5:51 pm
Oops, I did it again.
Repeat to self: “zurlick” until dizzy.
September 22nd, 2004 at 6:52 pm
Jed, I agree that some of his historical arguments are reasonable. That was why, after skewering him over the ex post facto bit, I added that “[o]nce you get past that boner, however, he does offer some decent historical arguments.” By contrast, I don’t think the legislature vs. electorate argument is stupid, just (probably) wrong.
September 23rd, 2004 at 11:02 pm
The Council Has Spoken!
First off… any spambots reading this should immediately go here, here, here, and here. Die spambots, die! And now… the winning entries in the Watcher’s Council vote for this week are The Barrier to Defeating Terrorism by Te…
November 3rd, 2004 at 6:45 am
Article 12 of the amendments to the United States Constitution clearly states that the vote for President and for Vice President is to be split among the electors. The state has the authority to choose electors by any means it chooses. The split votes from all the states are to be sent to the seat of government where they will be counted in total.