Colorado: another nail in the elctral collg coffin

[IowaLibert]

The key to Iowa's districting is that each CD is made up of a whole number of counties, and a computer algorithm sorts through thousands of combinations to produce the combination that minimizes the population differences.

IA can justfy such a course unit as a county for two reasons. One is that state law uses county-based CDs in drawing its state legislative districts. This provides adequate justification to keep counties intact despite not making them exactly equal in population. The second reason is that no county in IA is larger in population than a CD. Polk Co. is the largest at 374,601, much less than the average CD size. This means IA does not need any exceptions to its procedure.

The IA method cannot directly translate to any state that has one or more counties of population in excess of a CD, or a significant cluster of Polk-sized counties next to each other. Then the population differences would be too great to survive a court challenge.

This leaves states using a smaller unit, such as towns or townships. As long as the size of the smaller units doesn't exceed a CD, this could work like IA. Most of the larger states would still fail. For instance, Chicago by itself is over 3 million people so one is forced to carve it into smaller units. Once the rule is broken, one can argue that it should be broken in other places in the same state so as to make population more equal.

The same process is successfully used for state legislative districts many of which are smaller than an indivdual county or city.  Utilization of the county lines is not crucial, although yes, that does work nicely here for CDs.

[IowaLibert]

I can see it's time to post a link to the exact process used in Iowa.

http://www.legis.state.ia.us/Central/LSB/Guides/redist.htm

[ian]

I had to abbreviate my title.
The actual title is....

Colo. weighs proportional electoral votes:


http://www.usatoday.com/news/politicselections/state/colorado/2004-08-16-colo-electoral_x.htm


"If passed, Amendment 36 would make Colorado the first state to allocate electoral votes proportionately according to the popular vote, rather than giving a winner all of the state's electoral votes. "

I will vote yes in the poll because although it would be unfair and add to the chaos unless *all* states adopted it, it would be the first step in reforming an archaic system.

I agree 100%

[Andrew]

I haven't seen which method of allocation CO proposes in its referendum.

Sure you have; I posted a description and a link in the second post on the second page.

[muon2]

I haven't seen which method of allocation CO proposes in its referendum.

Sure you have; I posted a description and a link in the second post on the second page.

Thanks, I missed the url in your post (actually on page 4 ).

I agree then with Nick G that this is not a sound way of proportional representation, and reiterate my agree ment with the modified method of apportionment as described by Ernest.

I also found item 11 extremely interesting: "The General Assembly may enact legislation to change the manner of selecting presidential electors or any of the procedures related thereto." Doesn't this mean that as soon as the legislature meets again it could adopt a more appropriate method such as the method Ernest described, a NE / ME style apportionment, or even a winner-takes-all system? On its face this looks like a way to have the change effective for this election only - it seems very suspicious.

[cwelsch]

I like the idea of putting electoral votes along congressional district lines if not for the problem of gerrymandering.  I don't think we should do proportional EVs unless every state does it, otherwise a state stands to lose attention.  Since gerrymandering is incredibly difficult to fix, I'd say a nationwide PR systemw ould be okay.

Can you imagine if Texas had the Maine-Nebraska system?  Redistricting should be less impactful, not moreso.  I can just see some Chicago or Tammany-style Democrat doing the same thing in Illinois or New York.  We shouldn't get that into the electoral college.

[IowaLibert]

I like the idea of putting electoral votes along congressional district lines if not for the problem of gerrymandering.  [snip]  Since gerrymandering is incredibly difficult to fix, I'd say a nationwide PR systemw ould be okay.

In my humble opinion - No.

Let's not simply accept gerrymandering and consequently pursue nationwide PR EVs (which must eventually lead to an election decided by the House). Gerrymandering needs to be fixed. Period.  Iowa's done it.  End legislators choosing voters; let voters choose legislators.

[MODU]

I agree.  Gerrymandering is abused by both sides of the political spectrum.  I think it should be done once every decade in relation to the national census.

[sobo]

I know that this probably won't happen because of politics, but is it possible to write a computer program that could set CD lines that are not based on counties, it seems like it wouldn't be to hard and if written properly, should make gerrymandering very hard.

[muon2]

I know that this probably won't happen because of politics, but is it possible to write a computer program that could set CD lines that are not based on counties, it seems like it wouldn't be to hard and if written properly, should make gerrymandering very hard.

It's actually very easy. When I was a student 25 years ago it was a standard assignment for undergraduate computer science majors. IA uses a computer for its process. As you note it's a political decision, so political powers need to be willing to relinquish that control over the process.

[jimrtex]

No.

(1) It purports to apply the method to the results of an election held at the same time.   If the referendum passes, the meaning of a vote for Bush, Nader, etc. will have a different meaning than if the referendum fails.  This will lead to litigation, multiple sets of electoral votes being cast, and forcing the decision into the Congress (ala 1876).

(2) The recount provision (on the referendum) is included in the referendum.  In effect it says that if the referendum fails narrowly (by less than 0.5%) it will be interpreted as having passed and changing the Colorado Constitution as far as triggering the recount provision.

(3) The recount provision for electoral vote distribution does not take into account the critical points for allocation of seats.  For example if the proposed method had been used in California in 2000, Bush's raw elector apportionment would be 22.4917 electors, which would be rounded down to 22.  Hanging chads and millions of absentee ballots counted after election day would call into question the results of the whole election.

(4) Selection of electors for a party is random.  This is in part due to the fact that the candidates selected their electors based on the assumption that all (or none) will be chosen.

(5) The particular apportionment method is ill-conceived.  In Minnesota a 4.55-4.55-1.90 split would produce a 5-5-1 result (any overage due to rounding is taken at the expense of the trailing candidate).  Any votes for candidates that do not reach a quota (0.5 electors) are in effect given to the leading candidate.  In California in 2000, votes for the Libertarian and other 4th party candidates would be counted as being for Gore (and underage due to rounding is given to the leading candidate).   There are perverse cases where switching votes from the second place candidate to the 3rd place candidate can cost the 1st place candidate an elector.  Imagine a recount where a GOP election official agrees that a vote was for Nader rather than an overvote, because it would hurt Gore (in effect a game of giveaway checkers).

(6) There is a difference in the result based on whether a state has an even or odd number of electors.  In a state with 4 electors, the 2nd place candidate must be held under 37.5% to deny him a 2nd elector (i.e. a landslide).  If there are 3 or 5 electors, the winning candidate gets the extra elector regardless of the narrowness of the election.

(7) The method is sensitive to the apportionment of representatives.  Changing to the apportionment based on the 2000 census would have results in changing a 269-263-6 Gore plurality into a 268-264-6 Bush plurality.

9 states carried by Bush added representatives/electors.  Bush would have got both extra electors in Georgia and Arizona, plus the extra one in North Carolina and Nevada.  The extras in Florida and Texas would be split.  Gore would have gained the Colorado extra.

4 states carried by Bush lost representatives/electors.  Bush would have lost an elector in Oklahoma and Indiana, Gore an elector in Mississippi and Ohio.

1 state carried by Gore gained representatives/electors.  Bush would have gained the California elector.

6 states carried by Gore lost representatives/electors.  Gore would have lost an elector in Connecticut, Illinois, Michigan, and Wisconsin.  The losses in New York and Pennsylvania would have been split.

( Final disposition of electors could take a long time to be determined (e.g. consider how long it took to count the mail-in votes in the Washington Senate race in 2000).  Remember it is no longer an issue of who wins a state but whether they win with, for example, 55.01 or 54.99% of the vote.

(9) It increases the likelihood that the choice of the president will be turned over to the House, and that of the Vice President to the Senate.  In effect, instead of the nail in the coffin as suggested by the title of the thread, it will be the nail thrown on the railroad track that derails the train.

[muon2]

For jimrtex, two thumbs up!

[jimrtex]

I also found item 11 extremely interesting: "The General Assembly may enact legislation to change the manner of selecting presidential electors or any of the procedures related thereto." Doesn't this mean that as soon as the legislature meets again it could adopt a more appropriate method such as the method Ernest described, a NE / ME style apportionment, or even a winner-takes-all system? On its face this looks like a way to have the change effective for this election only - it seems very suspicious.

The US Constitution (Article II, Section 1) states that the _legislature_ of each state shall direct the manner by which presidential electors are appointed.  The Colorado Constitution has a particularly radical expression of the doctrine that the People voting in a referendum _are_ the legislature.  That is, on November 2nd, the legislature will be meeting throughout the State to decide whether the State Constitution will be changed.  But, one legislature may not bind the actions of a future legislature.  

So the assertion that a future legislature may change the method of appointing electors has no practical effect.  It would be true if the proposed referendum were silent on the issue; and it would be true if the proposed referendum stated that the legislature could _not_ change the method of appointment (the US Constitution would override in that case).

But what it does do is imply that this referendum is simply the legislature of the State of Colorado exercising its authority under Article II, Section 2 of the US Constitution.  If the referendum passes, then this could be signficant in the subsequent inevitable litigation.

If you look at the proposed language, the preamble is all sizzle and no steak - but that is what is going to be sold to the voters (populist rhetoric).

[Fmr. Gov. NickG]

I support reforming or abolishing the electoral college and changing the way our votes are counted, but after reading the text, this amendment seems deeply flawed.  

It is plainly illogical for an referendum to specify the method by which it will be potential recounted in the text; this text should only be effective once the amendment has already passed!  

And there is no reason why the electors should be chosen randomly...they should be ranked just like the party lists used in other countries with proportional representation.

The point made by jimrtex about your vote for president meaning something different whether this amendment passes or fails is also a good oone...people need to be clear on what they are voting for before being made to cast their vote.  And as I mentioned above, the algorithm for actually assigning electors is illogical and seems to have been made up on the fly rather than using existing models, like the one used in the US census.

Having said all that, I would still vote for the amendment were I a Colorado voter.  Whatever my problems with the amendment, I have far more problems with Bush, and would cast my vote in whatever way would make his political demise more likely.

[muon2]

I also found item 11 extremely interesting: "The General Assembly may enact legislation to change the manner of selecting presidential electors or any of the procedures related thereto." Doesn't this mean that as soon as the legislature meets again it could adopt a more appropriate method such as the method Ernest described, a NE / ME style apportionment, or even a winner-takes-all system? On its face this looks like a way to have the change effective for this election only - it seems very suspicious.

The US Constitution (Article II, Section 1) states that the _legislature_ of each state shall direct the manner by which presidential electors are appointed.  The Colorado Constitution has a particularly radical expression of the doctrine that the People voting in a referendum _are_ the legislature.  That is, on November 2nd, the legislature will be meeting throughout the State to decide whether the State Constitution will be changed.  But, one legislature may not bind the actions of a future legislature.  

So the assertion that a future legislature may change the method of appointing electors has no practical effect.  It would be true if the proposed referendum were silent on the issue; and it would be true if the proposed referendum stated that the legislature could _not_ change the method of appointment (the US Constitution would override in that case).

But what it does do is imply that this referendum is simply the legislature of the State of Colorado exercising its authority under Article II, Section 2 of the US Constitution.  If the referendum passes, then this could be signficant in the subsequent inevitable litigation.

If you look at the proposed language, the preamble is all sizzle and no steak - but that is what is going to be sold to the voters (populist rhetoric).

In CO, is the General Assembly also the People of the state? The text uses General assembly. I used legislature because in IL they are one and the same.

Preambles of bills usually are the sizzle. They are fattened anytime there is significant controversy or potential legal challenge. The hope is that the preamble will convey the intent of the bill.

[jimrtex]

In CO, is the General Assembly also the People of the state? The text uses General assembly. I used legislature because in IL they are one and the same.

The General Assembly (that is the Senate and House of Representatives) exercises the legislative power of the State - but the Colorado Constitution reserves to the People the power to enact legislation independent of the General Assembly.  The following is the beginning of the section of the constitution related to the legislative power (i.e. power to enact laws).

ARTICLE V LEGISLATIVE DEPARTMENT
Section 1. General assembly - initiative and referendum
(1) The legislative power of the state shall be vested in the general assembly consisting of a senate and house of representatives, both to be elected by the people, but the people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly and also reserve power at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.

[muon2]

In CO, is the General Assembly also the People of the state? The text uses General assembly. I used legislature because in IL they are one and the same.

The General Assembly (that is the Senate and House of Representatives) exercises the legislative power of the State - but the Colorado Constitution reserves to the People the power to enact legislation independent of the General Assembly.  The following is the beginning of the section of the constitution related to the legislative power (i.e. power to enact laws).

ARTICLE V LEGISLATIVE DEPARTMENT
Section 1. General assembly - initiative and referendum
(1) The legislative power of the state shall be vested in the general assembly consisting of a senate and house of representatives, both to be elected by the people, but the people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly and also reserve power at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.

So the part of the proposed amendment in item 11, does seem to empower the CO House and Senate to modify the method of apportioning electors after enactment, ie. changing the procedure after this election is complete.

[jimrtex]

So the part of the proposed amendment in item 11, does seem to empower the CO House and Senate to modify the method of apportioning electors after enactment, ie. changing the procedure after this election is complete.

That power is granted by the US Constitution.

Section 11 is a way of saying saying that the referendum does not purport to abgrogate the authority of a future legislature (i.e. the referendum is a simple exercise of the legislative power of Colorado to direct the manner in which electors are appointed (until and if a future legislature directs a different method).

Proponents of this sort of exercise of legislative authority, would probably argue that the People could by referendum approve resolutions that ratify US Constitutional amendments, or propose US Constitutional amendments (See Article V of the US Constitution)

Something interesting I just came across is the US Code about the appointment of electors:

3 USC 5. - Determination of controversy as to appointment of electors

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned

Colorado will not have enacted its law prior to the day fixed (November 2nd, 2004), and thus any electors appointed if the referendum is approved will not have the presumption of being valid.

[Andrew]

3 USC 5. . . . If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors .  . . such determination . . . shall be conclusive . . . .

Colorado will not have enacted its law prior to the day fixed (November 2nd, 2004), and thus any electors appointed if the referendum is approved will not have the presumption of being valid.

The method of choosing electors does not have to be determined prior to election day.  3 U. S. C. §5 says that if a state has laws in place prior to election day for dealing with contests or controversies about electors, and if the state applies those laws to resolve the contest in time, then the state's determination is conclusive.


Well, guess what?  Colorado has a law in place to deal with such controversies:  

C.R.S. 1-11-204. Contests for presidential elector.
The [Colorado] supreme court has original jurisdiction for the adjudication of contests concerning presidential electors and shall prescribe rules for practice and proceedings for such contests. No justice of the court who is a contestor in the election contest shall be permitted to hear and determine the matter.


3 U. S. C. §2 makes it clear that the electors may be appointed after election day by whatever method the state legislature directs.  Colorado case law makes it clear that citizens voting on a ballot measure are regarded as state legislature.

If this measure makes it to the ballot, and if Colorado's voters approve of it, it can take effect this year.

[ElectionAtlas]

Great thread.  Its taken me a while to catch on to this, but I have three weblog entries on this topic this week.

[jimrtex]

3 USC 5. . . . If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors .  . . such determination . . . shall be conclusive . . . .

Colorado will not have enacted its law prior to the day fixed (November 2nd, 2004), and thus any electors appointed if the referendum is approved will not have the presumption of being valid.

The method of choosing electors does not have to be determined prior to election day.  3 U. S. C. §5 says that if a state has laws in place prior to election day for dealing with contests or controversies about electors, and if the state applies those laws to resolve the contest in time, then the state's determination is conclusive.

Well, guess what?  Colorado has a law in place to deal with such controversies:  

C.R.S. 1-11-204. Contests for presidential elector.
The [Colorado] supreme court has original jurisdiction for the adjudication of contests concerning presidential electors and shall prescribe rules for practice and proceedings for such contests. No justice of the court who is a contestor in the election contest shall be permitted to hear and determine the matter.

3 U. S. C. §2 makes it clear that the electors may be appointed after election day by whatever method the state legislature directs.  Colorado case law makes it clear that citizens voting on a ballot measure are regarded as state legislature.

If this measure makes it to the ballot, and if Colorado's voters approve of it, it can take effect this year.

The initiative itself includes the following sections (uppercase from original text):

( THE SUPREME COURT SHALL HAVE ORIGINAL JURISDICTION FOR THE ADJUDICATION OF ALL CONTESTS CONCERNING PRESIDENTIAL ELECTORS AND SHALL PRESCRIBE RULES FOR PRACTICE AND PROCEEDINGS FOR SUCH CONTESTS. CONTESTS CONCERNING THE ELECTION OF PRESIDENTIAL ELECTORS SHALL BE GIVEN THE HIGHEST PRIORITY ON THE COURT'S CALENDAR AND SHALL BE EXPEDITED IN ALL RESPECTS, INCLUDING HEARING AND DECISION. THE COURT SHALL RENDER ITS FINAL DECISION IN ANY CONTEST CONCERNING PRESIDENTIAL ELECTORS NOT LATER THAN THE FIRST FRIDAY AFTER THE SECOND WEDNESDAY OF DECEMBER FOLLOWING A GENERAL ELECTION. NO JUSTICE OF THE COURT WHO IS A CONTESTOR IN THE ELECTION CONTEST SHALL BE PERMITTED TO HEAR AND DETERMINE THE MATTER.

(9) THIS SECTION SHALL BE EFFECTIVE ON AND AFTER NOVEMBER 3, 2004.

If the Secretary of State certifies that the 9 Bush electors are elected, Kerry or Nader electors could contest the election on the basis that some of them should have been elected under terms of the initiative.  But the procedures for contesting the election will have been modified after the election.   Does it matter that the procedures are similar, but the grounds for contesting the election have changed?

An initiated amendment to the Constitution does not take effect until proclaimed by the Governor.  If the votes for presidents are counted and canvassed, and the 9 Bush electors declared the winner, does it matter that there is a prospective (some weeks in the future) retroactive change in the manner in which the votes are interpreted?

[Andrew]

If the Secretary of State certifies that the 9 Bush electors are elected, Kerry or Nader electors could contest the election on the basis that some of them should have been elected under terms of the initiative.  But the procedures for contesting the election will have been modified after the election.   Does it matter that the procedures are similar, but the grounds for contesting the election have changed?

The procedures are not modified at all by the proposal:  "The supreme court has original jurisdiction for the adjudication of contests concerning presidential electors and shall prescribe rules for practice and proceedings for such contests."  The additional wording in the proposal just says that the court has to deal with such issues right away, because of the time pressure.

[jimrtex]

If the Secretary of State certifies that the 9 Bush electors are elected, Kerry or Nader electors could contest the election on the basis that some of them should have been elected under terms of the initiative.  But the procedures for contesting the election will have been modified after the election.   Does it matter that the procedures are similar, but the grounds for contesting the election have changed?

The procedures are not modified at all by the proposal:  "The supreme court has original jurisdiction for the adjudication of contests concerning presidential electors and shall prescribe rules for practice and proceedings for such contests."  The additional wording in the proposal just says that the court has to deal with such issues right away, because of the time pressure.

As directed by the statute, the Supreme Court has prescribed a rule (Rule 100, Colorado Rules of Civil Procedures) that give a contestor 30 days after the canvas of votes to file the contest (I believe the canvas is 7 days after the election).

If I call the Supreme Court prior to the election and ask when I must file a contest of the election for presidential electors, and am told that under procedures that are currently in place, I have 30 days after the canvas, and then am told that I no longer have 30 days, hasn't the procedure been changed?

[jimrtex]

Having said all that, I would still vote for the amendment were I a Colorado voter.  Whatever my problems with the amendment, I have far more problems with Bush, and would cast my vote in whatever way would make his political demise more likely.

Let's say that polling data showed a 49% Bush, 46% Kerry, 5% Nader split.  Under the proposed amendment, this would result in a 5-4 EV split.  If you knew that if Nader got 5.6% of the vote that it would switch to a 4-4-1 EV vote, would you vote for Nader?

[Andrew]

If I call the Supreme Court prior to the election and ask when I must file a contest of the election for presidential electors, and am told that under procedures that are currently in place, I have 30 days after the canvas, and then am told that I no longer have 30 days, hasn't the procedure been changed?

Not the procedure for making a "final determination of any contest or controversy," which is what 3 U.S.C. §5 is about.  You're talking about changing the procedure for filing such a contest.