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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Notwithstanding these claims, many Colorado voters view the measure as a common-sense reform that will bring greater fairness to the electoral vote. A poll taken in September by the Rocky Mountain News found the initiative running well ahead, with odds favoring approval. But a strong counterattack in recent weeks appears to have substantially eroded support for the measure. A Mason-Dixon poll conducted in mid-October found the initiative running behind by 44 percent to 35 percent, with a significant number of voters still undecided. Polling on ballot initiatives is an uncertain science, and thus it is hard to predict what the voters will decide on November2.

Republican governor Bill Owens, a popular two-term incumbent, is leading the opposition to the ballot measure. "If it passes, it will definitely end up in court," USA Today quoted him as saying. "If it's a close election, if you thought Florida was messy, wait until you see what happens here." Owens is probably right: If the amendment passes, and if we have a close national election, the question will almost certainly wind up before the U.S. Supreme Court.

The opponents base their legal argument on Article II, Section 1 of the U.S. Constitution, which says, "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." That provision makes it quite clear, some say, that the authority to decide how states allocate their electoral votes rests with the legislature alone, and does not extend to judges, commissions, or voters in ballot initiatives.

This was one of those thorny issues that the Supreme Court addressed in Bush v. Gore but could not resolve. In the Florida litigation, Rehnquist, Scalia, and Thomas argued that the Florida Supreme Court, through its intervention in the controversy, had altered the legislative scheme for choosing electors in violation of the Article II, Section 1 provision in the Constitution. Their argument, however, was not accepted by other members of the Court, perhaps because it places limits on the power of the judiciary in settling disputes over electoral votes.

The four liberal justices--Stevens, Breyer, Ginsburg, and Souter--held, in opposition to this, that the delegation of power under the Constitution is to the state and its broad constitutional framework, and not specifically to the legislature. The legislature, after all, is a creature of the state constitution, and operates within a framework of divided powers defined by that instrument. The judicial branch under that system interprets the meaning of statutes and constitutional provisions within the context of actual cases and controversies. These four justices thus argued that the Florida Supreme Court was simply exercising its lawful judicial power when it intervened in the election dispute. The two so-called moderate justices--O'Connor and Kennedy--implicitly concurred with this judgment. Otherwise their two votes would have made a majority for the narrow construction of the Article II provision.

Thus it appears that there are at least six votes on the Supreme Court to support the principle that the voters of a state can change the allocation of a state's electoral votes through a constitutionally sanctioned initiative--or, in other words, that the Constitution does not give the legislature a monopoly in this field. It follows then that the Colorado ballot measure--if it is reviewed by the Supreme Court--is likely to be upheld by a majority of the justices, at least on these particular grounds.

A FAR MORE PROMISING line of argument is to challenge the retroactive application of the measure to the present election. The contest underway in Colorado is proceeding on the assumption that electoral votes will be allocated on a "winner take all" basis. That will be the law in force on November 2; and there is a strong legal presumption that a state's electoral votes are to be allocated according to the rules in effect prior to Election Day.