CO Electoral vote change favored in poll

[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.

[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.

[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.