Colorado: another nail in the elctral collg coffin

[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.

[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).

[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.

[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.

[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?

[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?

[jimrtex]

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.

3 U.S.C. §5 says that if there is a procedure for making a final determination as to who the presidential electors are; AND if that procedure is in place prior to the election; AND if the procedure as defined at the time of the election was used to make a determination at least 6 days before the meeting of the electors; THEN that determination will be conclusive.

If no contest is filed, no controversy exists for the Supreme Court to make a final determination of.  Changing the filing deadline changes the procedure.

Colorado law provides that votes for candidates will be counted before votes for ballot issues.  If the votes for presidential tickets are canvassed and it is determined that according to the law that exists at the time that 9 Bush electors have been elected, on what basis could that result be contested?  That there is the possiblity that the legislature in the future may adopt a retroactive interpretation of the votes cast?

[jimrtex]

Under current Colorado law, if a voter places an X in the box next to a candidate's name he knows that if his preferred candidate receives the most votes. that all of the candidate's presidential electors will be chosen.

That is, when a voter casts his vote, he knows it will have a particular effect beyond the trivial increase in the opacity of the ballot paper, and that this may influence who he votes for.  While a voter is not guaranteed a particular outcome, he should be able to know how that outcome is determined.

The method by which electors are chosen may influence who contests the election.  For example, a candidate may receive an EV in Colorado with as little as 5.6% of the vote.  The filing deadline for independent candidates in Colorado is 120 days before the election, which is prior to the deadline for filing initiatives.  The number of signatures required for ballot access may be reasonable for a winner-take-all statewide election.  But it may not be reasonable for a proportional election.   Nationwide, there were roughly 200,000 votes cast per EV.  If a candidate can receive an EV with a vote share equal to about 0.5 of this (100,000) what sort of petition requirement is reasonable.  If you only need 100,000 votes to be elected, is it reasonable to require 50,000 signatures to even get on the ballot?  I don't think so.

Don't all of these factors infringe on the right to vote?

[jimrtex]

If the proposed Colorado method of allocating electors had been in place nationwide in 2000, the result would have been Gore 269, Bush 263, and Nader 6.  With no candidate having a majority, the election of President and Vice President would have been turned over to House and Senate, respectively.

The popular vote in Florida would determine whether Gore or Bush prevailed in a 13-12 split.  A Gore win in Florida would have meant a national Gore victory.

But there would be a total of 13 States where a shift of less than 1% of the total vote would have changed the allocation of EVs for that State.  In the most favorable case, Bush would have won 272-259-7.

The closeness is not all that surprising, considering that the national popular vote difference was equivalent to about 2 EV.

In 2000, there were 5 States where Gore defeated Bush by less than 1%, Iowa, New Mexico, Oregon, and Wisconsin.  None of these were particularly controversial once it was realized that if Gore won in Florida, Bush would have had to win in the largest 3 to be elected.

Under the Colorado method, we would have the potential of more than 1/4 of the States being as controversial as Florida.

Arizona: If Gore lost 0.92% of the total vote, a 4-4 split would have switched to a 3-5 split (If the 2000 popular vote were repeated, Bush would win both additional EV in Florida).

California: If Bush gained 0.02% of the vote, he would have gained an addition EV (30-22-2 to 29-23-2).  In a state Bush lost by 1.3 million, a mere 1677 votes would tip the results.

Florida: A Gore gain of 0.01% would change the result from 12-13 to 13-12.

Georgia: A Gore loss of 0.68% would have switched a 6-7 result to 5-8.  That loss is only slightly more than the number of votes that Nader received as write-in candidate.

Hawaii: An additional 137 Bush votes (0.04% of the total) would have produced a 2-2 split.

Illinois: An additional 0.08% for Nader would have given him an EV at the expense of Gore.

Iowa: An additional 0.31% would have given Bush an additional EV.

Minnesota: A Bush loss of 0.50% would have given Nader an EV at the expense of Bush.

New Mexico: A Bush gain of 0.06% would have given Bush a 3-2 victory.

Ohio: An additonal 1520 votes (0.03%) would have given Bush an additional EV at the expense of Nader.   Bush carried Ohio by 170,000 votes.

Oregon: A Bush gain of 0.44% would have given Bush a 4-3 victory.

Washington: A Nader Gain of 0.41% and a Gore loss of 0.13% would have switched an EV from Gore to Nader.  Washington has liberal laws with respect to voting by mail, and counts votes that are postmarked on election day.  In 2000, the count in the Senate race stretched on for weeks, with counties eventually refusing to disclose how many ballots remained uncounted.

Wisconsin: A Bush gain of 0.22% would have secured 6-5 victory.

[jimrtex]

It is generally agreed among academics that the fairest (least size-biased) way of handling fractions is the Webster or Sainte-Laguë method, which works by adjusting the quota such that the sum of the quotients rounded to their closest integer would equal the target total. Applying this to the 2000 presidential election, we get the following:

Total: 538
Bush: 265
Gore: 266
Nader: 7

It would be interesting to know why the Colorado method was chosen.  If the 3rd party is shut out, the Colorado method is equivalent to Saint-Lague after the votes of the 3rd and lower candidates is given to the leading candidate.  That is, pure Saint-Lague disregards the votes of the trailing candidates, while the Colorado method gives them to the leading candidate before distributing the EV.

Nationwide, pure Saint-Lague would favor Bush (under a nationwide application of the Colorado method, it would be Gore 269, Bush 263, Nader 6).

But ironically, Colorado was the one state where this would benefit Bush at the expense of Gore.  So perhaps the Colorado method was chosen because it produced an EV victory for Bush.  Instead of having to explain how an 8.4% popular vote win translates into a 4:4 EV tie, it can be shown as a demonstration of one candidate being rewarded for his popular vote victory, but not to the exclusion of the losing candidate.

The 6 states where pure Saint-Lague produces a different result from the Colorado method are:

Hawaii, Illinois, Michigan, and California: Bush picks up a Gore EV under pure Saint-Lague.  In all but California, this is mostly treating the Nader vote as if it were for the leader, Gore.  In California, it is more treating the 4th and beyond (Browne, Buchanan, etc.) as being for Gore.

Colorado: Gore picks up a Bush EV under pure Saint-Lague.  Here, Nader's votes were treated as being for Bush.

Minnesota: Gore picks up a Bush EV under pure Saint-Lague.  Minnesota was the one state under the Colorado method where all 3 candidates rounded up to a higher number of EV.  The unrounded share of the 10 EV was Gore 4.79, Bush 4.55, Nader 0.52, others 0.14).  After rounding it was Gore 5, Bush 5, Nader 1, or one extra EV being allocated.  Under the Colorado rules, the extra EV is always taken from the last place candidate, in this case Nader.

[jimrtex]

It is perhaps noteworthy enough to mention that the current congressional apportionment is also the exact result if it was done by Webster even without enforcing a minimal 1 seat per state.

Some may infer from this that the two methods will always produce the same results, or that the seat-by-seat apportionment order would be the same.

For example, if Webster's method were used, then there wouldn't have been an issue of overseas Mormon missionaries not being counted in Utah's apportionment population.  Alternatively, if Utah had won their law suit, but then Congress switched from equal proportions to Webster's, Utah would have again lost their 4th representative.

The most significant difference is for States with low population.  Rhode Island current priority rank for their 2nd seat is 385 (even if House were reduced in size from 435 to 385, they would keep their 2 representatives.  But if Webster's method were used, then they would be ranked around 400.   A State with 914,000 would have 2 representatives under equal proportions.   They would need 967,000 under Webster's.

[jimrtex]

In other words, Huntington-Hill (the currently used method) is biased in favor of smaller states.

In other other words, it provides an exquisite balance between the principle that States should be proportionately represented, and the principle that similar-sized groups of people should elect a representative.

[jimrtex]

Ever wonder why this idea isn't being attempted in California?

Or Texas?

There is no initiative in Texas, so even if a rich Californian wanted to fund such an effort, he couldn't.

[jimrtex]

It is generally agreed among academics that the fairest (least size-biased) way of handling fractions is the Webster or Sainte-Laguë method, which works by adjusting the quota such that the sum of the quotients rounded to their closest integer would equal the target total. Applying this to the 2000 presidential election, we get the following:

[snip for space]

Total: 538
Bush: 265
Gore: 266
Nader: 7

What are the results if, say, a 5% threshold is applied in each state? How badly does Nader suffer from it?

And this is a superb thread! Kudos to all those who posted!

Under the Colorado proposal with a 5% threshold, Nader would lose EV in California(2), New York, Ohio, and Texas, keeping only his one EV from Massachusetts.   Under pure St-Lague he would also keep his one EV from Minnesota.

Under the Colorado proposal, there is effectively a threshold of 1/2 the total number of EV, so any state with 10 EV or fewer has a threshold of 5% or greater.  Under pure St-Lague, the threshold is is 1/2 of the total number of EV + 0.5, with the percentage figured on the 3-party vote, rather than the total vote.  In a state with 10 EV, the threshold would be 5% under the Coloard proposal, and about 4.76% under pure St-Lague.

Under the Colorado proposal, the winner in a state would gain any votes that an unsuccessful candidate did not receive, so Nader's lost votes would be split 3 for Gore (New York and California) and 2 for Bush (Texas and Ohio).  Under St-Lague with a threshold, the extra EV would be allocated on the basis of the Bush-Gore vote.  Bush and Gore would split the 2 California EV, Gore would gain the New York EV, and Bush would gain the Texas and Ohio EV.

[jimrtex]

In other words, Huntington-Hill (the currently used method) is biased in favor of smaller states.

In other other words, it provides an exquisite balance between the principle that States should be proportionately represented, and the principle that similar-sized groups of people should elect a representative.

I disagree; the latter principle is supposed to have been applied through the existence of the Senate. Anyway, the difference in practice can hardly be called mind-shattering.

If your goal is to have similarly-sized groups of people elect a representative, regardless of which state they live in, then you don't want to have a single representative have to represent 50% more than the typical representative does, while a pair of representatives at worst each only have to represent 75% of a typical representative does.  It would be better to have the worst case to have 33% extra constituents or 33% fewer constituents than is average.

But you might not want a state with an entitlement of only 1.33 representatives to have 2 representatives.

So you choices of divisors are:

(n+(n-1))/2  Better apportionment of represntative per population, but greater deviation in population per representative.

(2*n*(n-1))/(n+(n-1)) Less deviation in population per representative but greater deviation in representative per population.

sqrt(n*(n-1)) Just right - does moderately well on both tests.

The Senate does the opposite of providing equal population per representative.  It provides the same number of Senators regardless of the population.

[jimrtex]

Case in point: No difference between Webster and Huntington-Hill with 1990 as well.

Are you sure that Oklahoma would not have lost their 6th representative and Massachusetts have kept their 11th if Webster had been used?  See footnote 13 in DEPARTMENT OF COMMERCE v. MONTANA, 503 U.S. 442 (1992).

[jimrtex]

Case in point: No difference between Webster and Huntington-Hill with 1990 as well.

Are you sure that Oklahoma would not have lost their 6th representative and Massachusetts have kept their 11th if Webster had been used?  See footnote 13 in DEPARTMENT OF COMMERCE v. MONTANA, 503 U.S. 442 (1992).

I'm using the values from http://www.census.gov/population/censusdata/apportionment/table-a.pdf

Massachusetts: 6,029,051
Oklahoma: 3,157,604

MA/10.5 = 574,195
OK/5.5 = 574,110

MA/sqrt(10*11) = 574,847
OK/sqrt(5*6) = 576,497

[jimrtex]

Thank you very much! I wonder how well Perot would've done in 1992 and 1996...?

In 1992,
Cand.     EV    %EV     %PV
Clinton 235 43.68% 43.01%
Bush    204 37.92% 37.45%
Perot    99   18.40% 18.91%

All 7 states with 3 EV would be split 1-1-1 (AK, DE, MT, ND, SD, VT, WY) (DC is not a state).  Also KS would be split 2-2-2

If pure St-Lague were used EV 237-197-104.  Of note is that Perot would beat Clinton 2:1 in Utah, one of 2 states where he finished 2nd in the popular vote.