This topic is monitored by Moritz Law Professor Peter M. Shane
The Colorado Electoral College Initiative
On August 2, 2004, the Colorado Secretary of State approved for inclusion on the November, 2004, state ballot a measure that would revise Colorado's allocation of electoral votes. Under the proposed measure, Colorado would become the first and only state to allocate its electoral votes proportionately among the presidential candidates. Maine and Nebraska, the only states that currently depart from the winner-take-all unit rule, allocate an elector to the victor in each congressional district, with a bonus of two additional electors going to the plurality winner of the overall state vote. Under the terms of the Colorado initiative, the new rules would, if approved, take effect with the casting of electoral votes in the 2004 election.
Championed chiefly by Colorado Democrats, this initiative—if approved and upheld—could well be enough to swing the presidential election. Colorado is currently rated in the independent Cook Political Report as "leaning Bush." If the state's nine electoral votes, however, split 5-4 with Bush over Kerry, Bush's Colorado victory might be insufficient to offset Kerry victories in the winner-take-all states. For example, had the initiative been enacted prior to the 2000 Election, Al Gore would presumably now be running for re-election.
Of course, there is no way of guaranteeing what the impact of a Colorado change might be. Senator Kerry might actually win Colorado outright, but lose in Oregon—a current "leans Kerry" state with a 7-electoral-vote prize. Under such a scenario, limiting Kerry's Colorado electoral vote edge to a single vote might swing the election to Bush.
The debate over the Colorado initiative highlights the political risk entailed when electoral vote rules changes occur on a state-by-state basis. If all states awarded their electoral votes proportionately, there would presumably be a more predictable correspondence between the popular and electoral vote counts on a national basis. If, however, a reliably Democratic state like New York or a reliably Republican state like Texas were to adopt the Colorado plan, all other states remaining the same, such a move could foredoom one or the other party's chances of ever winning a national election again.
Because Colorado leans Republican, chances of passage for this initiative would seem slim. On the other hand, advocates of the measure are appealing to a principle of fairness—one person, one vote—that presumably has some appeal without regard to party. Supporters assert that 20 percent of their signatures came from GOP members.
If enacted, the amendment will surely be challenged, and the focus of two such challenges is easy to predict. First, potential electors for whichever candidate prevailed in the statewide election are likely to argue that the initiative violates due process by applying its scheme to the November, 2004, popular vote. (The very text of the initiative seems to concede that this would be applying the initiative "retroactively.") The merits of such challenge would be unclear, however, because implementation of the initiative would not seem to undo any prior governmental act. Characterizing the deprivation of "liberty" or "property" involved would be tricky.
A second challenge would presumably rest on the Supreme Court's 2000 decision in Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000). That decision remanded the first of the Florida Supreme Court's decisions regarding the Bush-Gore recount, in part because the Court believed a serious issue was presented whether the Florida court had interfered with state legislative authority under Article II of the federal Constitution. Without deciding that such a violation had actually occurred, the Court raised the possibility that judicial interpretation of a state's election law might impermissibly circumscribe authority that the federal constitution lodges with state legislatures: "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 . . . ." U.S. Const., Art. II, § 1.
Prior to this decision, it would probably have been conventional legal wisdom that the federal constitutional power vested in state legislatures was power vested in those legislatures as they function subject to the laws of their respective states. So, to the extent Florida law subjects the Florida legislature to state judicial review, then such review could not be in derogation of any authority that the federal constitution vests in the state legislature. But, if that premise is wrong—if the U.S. Constitution does free state legislatures from at least some constraints that might otherwise be imposed upon them by state law—then it may be impermissible for Colorado to change its electoral vote allocation by initiative. That is, such a change, if any is made, would have to be made by the state legislature itself because the Colorado Constitution cannot "trump" the federal Constitution. Because Bush v. Palm Beach County Canvassing Board only raises the possibility of interpreting the Constitution in this manner, without actually so holding, the outcome of this dispute would also be uncertain. In the subsequent Bush v. Gore decision, three members of the Court—Chief Justice Rehnquist, Justice Scalia, and Justice Thomas—fully embraced this position, but Justices O'Connor and Kennedy remained noncommittal.
There is yet another potential source of legal controversy latent in the Colorado initiative, even if it should be enacted and upheld on its face. Section 2 of the initiative purports to require each elector to vote for the candidates "on the presidential ticket of the political party or political organization the nominated said presidential elector." It is clear that the electors, as originally conceived by the founding generation, were independent actors, entitled to exercise their untrammeled judgment in deciding for whom to cast their votes. The Supreme Court has never decided whether state law could enforce an elector's advance pledge to support any particular presidential or vice-presidential candidate. Ray v. Blair, 343 U.S. 214 (1952) (noting, but not resolving, this question).
[Posted: August 18, 2004]