The Magazine

Colorado Nightmare

The effort to rewrite the state's Electoral College rules will backfire.

Nov 1, 2004, Vol. 10, No. 08 • By JAMES PIERESON
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THE CONTROVERSIAL CONCLUSION to the 2000 presidential race left most Americans hoping that it would be a long time before the courts again became involved in settling a national election. The Supreme Court's conclusive decision in Bush v. Gore was handed down only after the Florida Supreme Court had twice intervened to enjoin Florida's secretary of state from certifying the final vote tally until extensive recounts could be completed. Both courts were criticized, with some merit, for tailoring their jurisprudence to fit partisan objectives. Everyone wants to avoid a repeat of the Florida imbroglio--none more than the justices themselves.

But such hopes are likely to be dashed, for Bush v. Gore established a precedent that is likely to create even more litigation over future elections. The key principle established in that case--that voters have an equal protection right to have their ballots counted according to non-arbitrary standards--will encourage lawsuits over counting mechanisms in any race that is decided within a margin of one or two percentage points. Attorneys for the two parties in the upcoming elections are already preparing motions to take into court as soon as the voting is completed. Bush v. Gore, moreover, raised a host of legal issues that the Court, because of internal disagreements, could not resolve. These issues are very likely to be raised again--and soon.

One obvious opportunity for litigation arises from a ballot initiative in the state of Colorado that, if approved by the voters on November 2, will amend the state's constitution to eliminate the "winner-take-all" allocation of Colorado's nine electoral votes (a longstanding provision of state law) and instead require a division according to each candidate's proportion of the popular vote. If the initiative passes, Colorado will join Nebraska and Maine as the only three states not to allocate their electoral votes by "winner take all." The Colorado initiative as written would apply to this year's presidential race and to all future races.

This gambit was concocted by Colorado Democrats as a means of depriving President Bush of four electoral votes he would probably win under the "winner-take-all" rule. Bush carried Colorado by 9 percentage points (51 percent to 42 percent) in 2000, and thus won all nine of the state's electoral votes in a race that he won nationally with only two electoral votes to spare. Current polls have the president leading in Colorado by a margin of between 5 and 10 points, and most observers feel he is likely to carry the state with an advantage somewhere in that range. If that is indeed the outcome, and assuming the ballot proposition passes, the president will take just five electoral votes, with Sen. Kerry taking the other four--an adjustment that could make a large difference in a very close national race.

The ballot proposal has been attacked as a cynical partisan maneuver (which it is) designed to assist the Democratic presidential candidate in a close national race. Critics also point out that, once the voters have approved the measure as part of the state constitution, it can be changed in the future only by constitutional amendment. Thus, in order to undermine President Bush this year, Colorado Democrats will have permanently diluted their state's influence in the Electoral College.

Supporters defend the proposed amendment as a means of calling attention to flaws in the Electoral College. Perhaps, they suggest, the controversy in Colorado will bring greater attention to the fact that the Electoral College does not directly represent the will of the voters. They hope their proposal will thus stimulate sentiment in favor of some kind of direct national vote for president.

This debate over the Electoral College, however, has been underway for many generations, and always intensifies when a national election is close, as happened four years ago. The Colorado proposal is unlikely to add anything constructive to that perennial debate, since its purpose is to provide a quick partisan advantage this year. Indeed, the broader implications of the measure are not especially advantageous to the Democrats who have promoted it.

In any event, the Colorado gambit is unlikely to lead to a change in the Electoral College, since this would require an amendment to the U.S. Constitution, a step requiring the consent of two-thirds of both houses of Congress and three-quarters of the states. Since many groups, and most especially the small states, have a clear interest in maintaining the Electoral College as it is, there is little likelihood that such an amendment will ever pass.