CO Electoral vote change favored in poll

[zorkpolitics]

Amendment 36 which proposes to change the way Colorado allocates its electoral votes from a winner take all system to a proportional representation system, is ahead (47-35) in a recent poll by the Rocky Mountain News (500 likely voters.

http://www.polstate.com/archives/006074.html#006074

If passed, it might affect the Nov. election.  This was pushed by Democrats who hoped to get 4 of CO 9 EV and strangely, the petition for this measure was financed by a rich Brazilian.  

If Bush wins CO and the Electoral college on election night by 4 or fewer Electoral Votes, he would then lose 4 EVs when this measure was certified a few weeks later.  Or if Kerry wins CO and wins by 4 or fewer EV he could then lose as well.

If you thought the 2000 recount was a battle after the election, if the CO EV affect the election  look for at least 2 sets of certified electoral votes to be sent to Washington (one by the Republican Governor and legislature, one by the courts).  Then it will fall to the Congress to decide which EV to count.

[freedomburns]

OMG, this is such a big deal!

This means that we may be in for another Florida of a whole different sort.  Will this law go right through the Supreme Court in a matter of weeks to decide the election?  Just like in 2000?  This could be so similar to that bizzaro election.  Will other states take up this more fair seeming method of distributing electoral votes?

This will result in the candidates campaigning mostly in the big states where they are behind.  That will be the most fertile ground for gaining electoral votes if all states enact proportional electoral college representation.

freedomburns

[A18]

The legislatures of other states would surely take action.

[stry_cat]

If passed, it might affect the Nov. election.  This was pushed by Democrats who hoped to get 4 of CO 9 EV

I don't see how it can affect the Nov election.  ex post facto laws are not allowed. So passing a law affecting the way electors are chosen will only affect future elections.

[True Federalist]

It's not ex post facto (and even if it were, the Constitutional prohibition on such laws only applies to Federal law).  It's all part of the same election.

[A18]

Actually, the ex post facto prohibition is a mutual ban between all 50 states, as are Amendments II-VIII.

It's a law that once in place affects someone's vote that they made before knowing the outcome. It is my opinion, therefore, that it is indeed in violation of the Constitution and can only affect future elections.

[True Federalist]

The Constitution in Article I Section 9 bans Congress from passing an ex post facto law.  Looking further I see it repeats the prohibition in Section 10 so that it applies to the States.  However, this is not a ex post facto law.  It is a foolish law, but the Constitution does not prohibit foolish laws.

[A18]

You wouldn't know how your vote is going to count when you make it.

[muon2]

It's not ex post facto (and even if it were, the Constitutional prohibition on such laws only applies to Federal law).  It's all part of the same election.

In fact there is case law in the states (at least in IL) that makes it clear that a referendum to modify an office can be on the ballot at the same time as the election for the officers. That sems to be the case in CO where the election is for the office of Elector and the referendum will modify that office.

The case law here relies upon the fact that the referendum is counted and effective before any officeholder is sworn in to the old position. Therefore no duly elected official was affected by the change from the referendum.

[A18]

The difference is that this affects a vote that was held before it passed.

[muon2]

The difference is that this affects a vote that was held before it passed.

I understand what you are saying, but in IL that wouldn't matter. The ruling is that it is not the vote that is protected but the office. Once a referendum passes, the office is changed. Since the officer is not yet sworn in when the office changed there was nothing to protect by delaying the impact of the referendum.

For instance, let's say there is a referendum to eliminate the office of County Coroner at the same time as an election for Coroner. The votes would be certified for both offices at the same time. The referendum has then eliminated the office, so when it comes time to swear in the elected Coroner there is no office, so no one is sworn in.

The same thing applies to the creation of an office. For instance, if there is a referendum to create a Park District, there can be an election at the same time for Park District Commissioners, even though there may be no elective office at the time of petition filing. If the referendum succeeds, then the results of the Commissioner races matter, and those who were elected can be sworn in.

One interpretation of the CO referendum is that it both eliminates and creates offices at the same time. It eliminates electors for the statewide winner and creates offices of electors for candidate who receive suffient votes in proportion to their vote. With this interpretation, the referendum binds the office before the electors are sworn in, so it would be effective in 2004.

[jimrtex]

One interpretation of the CO referendum is that it both eliminates and creates offices at the same time. It eliminates electors for the statewide winner and creates offices of electors for candidate who receive suffient votes in proportion to their vote. With this interpretation, the referendum binds the office before the electors are sworn in, so it would be effective in 2004.

But if it is a different office, then how can the candidacy filings for the office that was eliminated be valid for the the new office that was created, especially since the deadline for running for President and elector was before that for filing the initiative?

[muon2]

One interpretation of the CO referendum is that it both eliminates and creates offices at the same time. It eliminates electors for the statewide winner and creates offices of electors for candidate who receive suffient votes in proportion to their vote. With this interpretation, the referendum binds the office before the electors are sworn in, so it would be effective in 2004.

But if it is a different office, then how can the candidacy filings for the office that was eliminated be valid for the the new office that was created, especially since the deadline for running for President and elector was before that for filing the initiative?

I think that's an excellent question, and one I can't answer with any specifics. I'm no expert in CO election law, but I would be surprised if the backers of this initiative haven't had CO attorneys who are expert check the form of the referendum question.

I tend to assume that the referendum backers had at least some legal opinions to support their effort. Of course, one legal opinion is not the final word, and other experts in CO law may well have other interpretations. If a passed referendum changes the national result, I strongly suspect that there would be legal challenges to the application of the referendum in the current election.

I also anticipate that most of the initial legal work for the referendum would have focused on CO state law. If that is true, there may also be a Federal case if the referendum results matter. I haven't seen any legal analysis about whether Bush v. Gore would have any bearing on a case that could arise from the CO referendum.

[jimrtex]

I think that's an excellent question, and one I can't answer with any specifics. I'm no expert in CO election law, but I would be surprised if the backers of this initiative haven't had CO attorneys who are expert check the form of the referendum question.

I tend to assume that the referendum backers had at least some legal opinions to support their effort. Of course, one legal opinion is not the final word, and other experts in CO law may well have other interpretations. If a passed referendum changes the national result, I strongly suspect that there would be legal challenges to the application of the referendum in the current election.

Clearly they have received legal advice as to the specifics of how to go about doing something that really shouldn't be attempted to do in the first place.  I assume a lawyer would advise the best way to get around particular problems, without ensuring that it will hold up to scrutiny.

First, the US Constitution grants to the legislatures the authority to determine the manner by which electors are appointed.  But the Colorado Constitution asserts that legislative authority is reserved to the People, who have granted non-exclusive legislative authority to the General Assembly.  Proposition 36 repeats that they are acting as the legislative authority.  It also specifically provides that the General Assembly can change the manner by which electors are appointed.  This appears to be intended to head off a federal case that the legislature had not instituted the change in the manner by which electors are appointed, and that somehow the Colorado Constitution is being changed to asurp the authority of a future legislature.

Even if the referendum passes and has no effect on the national result, it will be challenged in Congress when the electoral votes are cast.

It also has sections that purport to govern how the amendment itself would be put into effect, that would override the ordinary procedures for handling amendments to the Constitution.  One would provide for an accelerated recount on the initiative itself if it were close.  Another provides for an accelerated proclaimation by the governor so that it can come into effect in time for the electors to vote.

And finally it includes a severability clause so that the proponents can argue that ti doesn't really matter if the courts rule that it can't apply to the 2004 election.

[SeaMinn]

So has anybody seen a poll on this in Colorado since the one that prompted this thread to start?  What's the latest expectation for how the vote will go?

[jimrtex]

So has anybody seen a poll on this in Colorado since the one that prompted this thread to start?  What's the latest expectation for how the vote will go?

There is a report of a poll for the Pueblo Chieftan that shows a 51%-31% lead, but I couldn't find anything on the paper's web site.

The Denver Post had a poll on the presidential race today.  If they also asked questions on the senate race and Prop 36, they might be publishing these over the next few days.

Addenda 10 October The Post released their poll (conducted by Mason-Dixon) results on the Senate race today.

[Fmr. Gov. NickG]

SurveyUSA only has Amendment 36 winning by 1%, 45-44.  The poll is probably a bit too heavy on Republicans, but the trend is pretty clear.

[??????????]

Couldn't the electors just ignore the "split"?

[jimrtex]

Couldn't the electors just ignore the "split"?

The Colorado amendment would choose the electors by lot from the slate of electors for each candidate.  If Bush won 5 EV, then 5 of his 9 elector candidates would be chosen; along with 4 of the 9 Kerry elector candidates.

It is unlikely that the 4 electors in the minority would vote for the opposing presidential candidate.

[??????????]

Couldn't the electors just ignore the "split"?

The Colorado amendment would choose the electors by lot from the slate of electors for each candidate.  If Bush won 5 EV, then 5 of his 9 elector candidates would be chosen; along with 4 of the 9 Kerry elector candidates.

It is unlikely that the 4 electors in the minority would vote for the opposing presidential candidate.

I'm sure the minority electors could easily be bought off.

[A18]

Millionare = Republican
Billionare = Democrat

They'd just offer more money

[Fmr. Gov. NickG]

Couldn't the electors just ignore the "split"?

The Colorado amendment would choose the electors by lot from the slate of electors for each candidate.  If Bush won 5 EV, then 5 of his 9 elector candidates would be chosen; along with 4 of the 9 Kerry elector candidates.

It is unlikely that the 4 electors in the minority would vote for the opposing presidential candidate.

I'm sure the minority electors could easily be bought off.

Why would they be easier to "buy off" than electors from any other states? 

[??????????]

Couldn't the electors just ignore the "split"?

The Colorado amendment would choose the electors by lot from the slate of electors for each candidate.  If Bush won 5 EV, then 5 of his 9 elector candidates would be chosen; along with 4 of the 9 Kerry elector candidates.

It is unlikely that the 4 electors in the minority would vote for the opposing presidential candidate.

I'm sure the minority electors could easily be bought off.

Why would they be easier to "buy off" than electors from any other states? 

Most people can be bought off. You, me and anyone here could be bought off for the right amount of money.

[CollectiveInterest]

Here's the logic I see. Some people evaluate this ass diluting the power of the state, but I not sure.

If you support the party that usually loses your state, then it makes sense to support changing to awarding electors by CD.

If you live in a district that is more evenly divided than the state, then it makes sense to support the change.

If you support the party that usually wins your state it makes sense to oppose the change.

Am I wrong?

[willhsmit]

It depends -- in the short term (the immediate election), you benefit if you support the minority party and lose if you support the majority party. In the long term, one might argue that you lose state clout by making your state a less tempting target for presidential candidates. So, one would assume that the proposition would be opposed by the majority of the voters, if they viewed the question in pure party/state self-interest.

As an interesting point, if the whole country moved to voting by CD, I calculate that Bush would have won 290-246 (with 1 district in FL and 1 in TN ambiguous left gray in the Atlas for 2000). So, voting by CD is definitely not the cure to matching the Popular and Electoral votes.
Bush's greater margin can be attributed to the fact that he has more support in small states, and the EV advantage for small states is unaffected by the way electors are distributed within a state. Further, smaller states are more likely to deliver their CD's overwhelmingly to the state winner than large states, because the CD's tend not to be as differentiated. (A state with 30-50 can have pure urban, pure rural, and pure suburban districts, while a state with less than 10 will probably have more uniformity). It's hard to tell how gerrymandering plays into this.
Using proportional distribution on a state-by-state basis is harder to compute, but I think it would have given Bush a narrow victory in 2000. It might be narrow enough that he would have lacked an overall majority, though.