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Electoral Quagmire-In-Waiting?

A 5-4 vote in Washington determined the last presidential election. A 5-4 split of Colorado's electoral votes could determine the next one.

When Colorado voters go to the polls in four weeks they won't just be electing a president; they will be determining via ballot initiative whether the state's nine electoral votes ought to be split proportionately based upon the results of the election. If the measure passes, in other words, instead of getting all nine Electoral College votes, the winner of the state's popular vote almost certainly would get only five of those votes; the loser almost certainly would get four. Had the proposed change been in place in 2000, Al Gore would be president today. And if the initiative passes, it very well could determine whether George Bush keeps his job or John Kerry takes it.

That's because, if it passes, the initiative, labeled "Amendment 36" on the ballot, will go into effect on Nov 3 — the day after the election. That means that when the vote in Colorado is certified, when the state's "presidential electors" are selected, and when they go to Washington to cast their votes in the Electoral College, the law in Colorado will direct them to divide themselves proportionately. Colorado voters therefore will be deciding in this upcoming election whether they want to change the rules in Colorado for this upcoming election. Who says life is laid back in the Rocky Mountain West?

Now, if the results of the presidential election are not as close as some think they'll be, that is to say, if either George W. Bush or John Kerry amasses a lead in the electoral vote count that is more than nine votes, no one will care much about Amendment 36 outside of Colorado. But if the contest is razor close, as virtually every pollster suggests it will be, the outcome of the Amendment 36 vote could either determine the presidency or at least delay its determination.

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If Amendment 36 does not pass — right now a majority of Coloradoans appear to support it — then the only thing that will give everyone a headache the morning after the election will be close races and recount possibilities in Iowa, Minnesota, Washington, Oregon, Missouri, Ohio, Maine, Florida, Wisconsin and New Mexico. See you at the courthouse in Madison in early December! Or back at the Hilton Garden in Tallahassee! Or, better yet, back on the steps of the United States Supreme Court in the middle of December!

And even if Amendment 36 passes, it might not matter outside of Colorado. If, for example, President Bush wins the electoral vote count without winning Colorado, no one will care about Amendment 36 because the four extra votes he would pick up via Amendment 36 obviously won't determine the outcome of the election. Likewise, if John Kerry wins the electoral vote count without taking Colorado, there will be no incentive for the Democrats to make a federal case out of Amendment 36.

But what if Amendment 36 passes and George Bush or John Kerry wins the electoral vote count thanks to a victory in Colorado? And what if the electoral vote count nationwide is less than four? Then Amendment 36 will matter a whole lot. Then the four Electoral College votes "lost" to the "winner" of the Colorado vote thanks to Amendment 36 will make a difference in the outcome of the race. Then you'll see a legal donnybrook the likes of which we haven't see since the "Battle of the Hanging Chads" of Florida.

There are two obvious legal challenges to Amendment 36. 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.

Proponents of Amendment 36 likely will say that the Colorado law permits the voters, through the state constitution and the initiative process, to take on certain legislative functions like changing the rules about electoral votes. This side likely will posit that the state legislature gave citizens the right to "legislate" when it gave them the power to propose and pass ballot initiatives. So, these folks say, the state legislature nearly a century ago "directed" a "manner" for appointing presidential electors that contemplated the abdication of this power to the electorate itself. This is a complicated argument but there is support for it under Colorado law.

Opponents of Amendment 36 are likely to say that the word "legislature" ought to mean "legislature" and that if the citizens of Colorado want to change the rules governing the apportionment of their electoral votes they ought to do it the old fashioned way — by lobbying and badgering and threatening their local politicians to make the changes through the State House. They will likely say that the federal constitution does not contemplate a scenario whereby a ballot initiative can circumvent the traditional role the legislature is supposed to play in determining state rules for electoral votes. This is a far simpler argument but I'm not sure there is as much support for it under Colorado law.

The other likely challenge to Amendment 36 is a temporal one. 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.

Compared with the Florida recount battle, which consisted of many different legal issues spread out over many different jurisdictions, the battle over Amendment 36 will seem relatively compact. One case. One set of lawyers. An expedited schedule built into the terms of the initiative (another smart salve by proponents of the Amendment because it precludes the sky-is-falling Florida-redux argument about the Colorado legal battle not being completed before the Electoral College meets in Washington in December). It will likely take only a week or two. The time will seem short if the election isn't riding on its result. If it is, those days, again, will seem like an eternity.

By Andrew Cohen

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