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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This is more than a presumption, since it is spelled out clearly in the federal election law governing the counting of disputed electoral votes. Following the Hayes-Tilden election in 1876, in which the two parties fought over rival electoral slates from several southern states, the Congress tried to codify the rules under which such disputes might be resolved. The result was the Electoral Count Act of 1887, the main provisions of which (with minor adjustments) remain in force today. A key provision holds that a certified slate of electors from a state will be regarded as "conclusive" by the Congress if the slate is chosen "by laws enacted prior to the day fixed for the appointment of electors (i.e., election day)." Conversely, electors chosen under laws or rules adopted on or after Election Day are vulnerable to challenge in the Congress. In addition, because in our era the judicial branch has become involved in these controversies, such electors may be challenged in the courts as well.

It thus appears that electors chosen according to Colorado's ballot initiative will be vulnerable to challenge under the Electoral Count Act, since such electors (or at least some of them) will not have been chosen according to laws enacted prior to Election Day.

The U.S. Supreme Court cited this section of the act in the Florida litigation, but in the end the justices disagreed as to whether the Florida Supreme Court had changed the rules after the fact when it intervened to order manual recounts. The liberal justices held that the Florida court had not changed the legislative scheme for choosing electors--and even if it had, the arena for settling the issue was the U.S. Congress, which has the authority to accept or reject slates of electors, and not the federal courts. In any case, the justices did agree that a change in the rules on or after Election Day would leave a state's electors open to challenge.

Under federal law, however, it is up to the governor to give final certification of a state's slate of electors, and to transmit that certification to the archivist of the United States as soon as the electors have been determined. Governor Owens, therefore, might refuse certification of the electors as directed by the ballot proposition, on the grounds that those electors will be vulnerable to challenge in the courts and in the Congress; and he could, to guarantee his state's full participation in the Electoral College, insist on certifying a slate of electors chosen according to the "winner-take-all" formula in place on Election Day. This, then, would cause the losing candidate to bring suit before the Colorado Supreme Court; and the losing party in that litigation would appeal the decision to the U.S. Supreme Court. Thus the Florida imbroglio would be played out again--assuming, that is, the election is close enough to warrant it.

SINCE THE COLORADO GAMBIT appears to be legal so long as it is applied prospectively and not retroactively, it is worth thinking about its broader implications as a precedent for future partisan maneuvering. Does it promise a future advantage to either of the parties?

It is clear that this gambit is one that works to the advantage of the minority party in a given state--since the point is to gain some electoral votes in states where a party cannot win a majority. It would be difficult to pass such a proposal in a legislature, since the majority party would presumably have both the desire and the numbers to block it. Legislators, in addition, are likely to see the proportional division of electoral votes as a reform that would weaken their state's position in the Electoral College--and reduce the attention given to it by presidential candidates. This means that this tactic can only be made to work in states that permit voter initiatives of the kind currently on the ballot in Colorado.

There are now 18 states that permit direct citizen initiatives to approve statutes or constitutional amendments. Several are reasonably competitive states--Florida, Missouri, Nevada, Arkansas, Oregon, and Ohio--and thus do not provide opportunities for clear partisan advantage from a Colorado-type initiative (since the sponsoring party might well win the state, and thus has an interest in preserving "winner take all"). At least 9 states are solidly Republican--Colorado (with its 9 electoral votes), Arizona (10), Idaho (4), Montana (3), Nebraska (5), North Dakota (3), South Dakota (3), Oklahoma (7), and Utah (5)--with a total of 49 electoral votes. As a practical matter, Democrats probably would not deem it worth their while to sponsor expensive initiatives in all of these small states in order to pick up a handful of electoral votes here and there.

There are, however, three solidly Democratic states that permit citizen initiatives, and all of them are large: California, with 55 electoral votes, by far the largest haul in the nation; Michigan with 17; and Washington with 11. California would be a choice target for Republicans, given the number of electoral votes at stake, the fact that it is a safely Democratic state in presidential elections, and also that its voters by now are used to ballot initiatives, having recently replaced a governor by that method.

In the 2000 election, George Bush lost California by more than 1.2 million votes, but still carried about 42 percent of the popular vote. Polls now suggest he is likely to take about the same percentage in this year's election, and perhaps increase his share to 45 percent, though Kerry will still easily carry the state. Bush's total, however, under the proportional formula being considered in Colorado, would yield him between 23 and 25 electoral votes in California--a bonanza equal in size to the electoral vote of the fifth largest state, and larger than several current battleground states such as Ohio, Pennsylvania, Missouri, and Wisconsin. As a political matter, Democratic candidates for president would face a challenging task if they had to give up 23 to 25 electoral votes in California, and perhaps another dozen or so in Michigan and Washington, because they would then have to make up those votes in other states in the South and border regions that are far less hospitable to the liberal candidates that usually emerge from the Democratic nominating process. A change in the allocation of the electoral vote in California along the lines of the Colorado proposal would thus provoke much soul-searching in Democratic ranks about the representativeness of its nominating process.

As it would play out nationally, then, the Colorado gambit appears to be a losing proposition for the Democrats, whose candidates rely heavily on those 55 electoral votes from the state of California. In view of the Colorado precedent, Republicans might move to place a similar initiative on the ballot in California, and perhaps in Michigan and Washington as well, before the next presidential election.

It seems the Democrats may have outsmarted themselves again, as they have in the past in areas from campaign finance reform to minority-controlled congressional districts. By rigging the rules for what they thought was their immediate political advantage, they have often succeeded instead in harming themselves.

James Piereson is an occasional contributor to The Weekly Standard.