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.
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.
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.