Colorado could prove rocky

[°Leprechaun]

It looks like the Colorado referendum will pass:

http://www.usatoday.com/news/politicselections/nation/president/2004-09-27-colorado-initiative_x.htm

[nomorelies]

O dear.

Evil Reps will go for Claifornia in 2008

[dougrhess]

What's the implication of that measure? And does it take place immediately?

[minionofmidas]

What's the implication of that measure? And does it take place immediately?

Colorado's electoral votes getting split proportionally. And, yes, apparently. Might be open to legal challenge though. Now, Bush losing due to this thing passing would be such sweet revenge for four years back and if Reps go for pushing such a measure in Calif next time, so will be people everywhere. Which might really undo the current EV system....but I'm daydreaming.

[A18]

No, it will not apply in this election. The U.S. Constitution bans ex post facto laws.

It would take the most extreme judicial activists to allow that to happen.

[J. J.]

No, it will not apply in this election. The U.S. Constitution bans ex post facto laws.

It would take the most extreme judicial activists to allow that to happen.

The precedent (from 1798) is that it applies only in criminal cases, not civil ones.  Don't blame me, blame Justice Chase.

http://www.cato.org/pubs/journal/cj15n2-3-4.html

[Blue Rectangle]

A few points:

--It is probably not be ex post facto because it applies to the selection of electors, which is actually done after the election.  Thus, the bill only affects events after its passage.

--Expect a legal challenge if this passes.  The basis would be that the Constitution gives state legislatures the authority to choose a method for selecting electors.  Can a popular vote usurp this authority?

--An injunction could prevent the selection of electors until after the electoral vote is held.  In a odd scenario, say Bush 262-Kerry 269, the difference in the elector selection would determine the outcome of the race (Bush 271-Kerry 269 for winner take all, Bush 267-Kerry 273 for a 5/4 split).  If the electors cannot be legally chosen due to a court injunction, there would be no majority in the EC in this case and the House would vote (for Bush).

--I am ignoring polls that show the initiative ahead.  There has been little coverage of the issue here and not a single commercial that I have seen.  I believe the issue has support now due to a general ignorance of the issue.  The Republican Party here will fight bitterly to defeat this; they just have not started yet.  The Reps usually get their way here in state issues.

[minionofmidas]

No, it will not apply in this election. The U.S. Constitution bans ex post facto laws.

It would take the most extreme judicial activists to allow that to happen.

But wouldn't striking down two different state laws because they're *arguably* ex post facto if applied together be the activist course?
Truth of the matter is, it's pretty obvious from the constitution that this is a matter between the states and Congress that the SC has no business getting involved in. But as it has gotten itself involved four years ago, I don't doubt it might this time around.

[nomorelies]

Lets all hope Philip isnt one then.

[Andrew]

It would take the most extreme judicial activists to allow that to happen.

But wouldn't striking down two different state laws because they're *arguably* ex post facto if applied together be the activist course?

"Activist," when applied to judges, doesn't really mean "activist."  It's a code word for "non-Republican."

[AuH2O]

I don't think it will pass, but keep these things in mind:

-Referendum laws vary widely state to state. Legislatures can change them even. So it's not so easy as to bring this up in every state.

-I don't know about Colorado, but often times state legislatures can actually repeal a referendum. It's rarely done because that would tend to be bad politics, but if people realize after the fact it was a bad idea, that problem would not arise.

But I don't think it will succeed. Really, it's a pretty sad thing the media has given it a free pass... this is much worse than the GOP trying to get Nader on the ballot.

[A18]

That's right, the appointment of electors is done post-election. My mistake.

Thing is, under Article 6 of the U.S. Constitution, the state legislature of Colorado has the final and only say with regard to presidential electors -- anything in the Constitution or Laws of any State to the contrary notwithstanding.

If it passes, it will immediately be null and void.

[Wakie]

No, it will not apply in this election. The U.S. Constitution bans ex post facto laws.

It would take the most extreme judicial activists to allow that to happen.

Yeah, I hate those judicial activists.  Especially the ones who decide to appoint Presidents and subvert the electoral process.

[ATFFL]

No, it will not apply in this election. The U.S. Constitution bans ex post facto laws.

It would take the most extreme judicial activists to allow that to happen.

Agreed.  The Florida Supreme Court was clearly overstepping its authority.
Yeah, I hate those judicial activists.  Especially the ones who decide to appoint Presidents and subvert the electoral process.

[True Federalist (진정한 연방 주의자)]

--Expect a legal challenge if this passes.  The basis would be that the Constitution gives state legislatures the authority to choose a method for selecting electors.  Can a popular vote usurp this authority?

Yes.  The Colorado Constitution gives the initiative process in that state the explicit status of being a use of legislative power.  In good old-fashioned populist fashion, the people are the legislature.

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Actually the law calls for a majority of electoral votes cast, not of electoral votes that could be cast,  If the situation were as given above with no electoral votes sent to Congress by January 6, then Kerry would win 269-262.  Now if conflicting slates were submitted then Congress would have the choice of which slate to use.

[A18]

It's a constitutional amendment that tries to get in the way of the legislature appointing electors. It dies right there.

If it was a normal legislative actions, it would be of no affect, because a legislature can't pass a law restricting itself. For example, "the General Assembly shall pass no law banning murder" doesn't work.

[True Federalist (진정한 연방 주의자)]

That may be why this initiative also gives the General Assembly the authority to change the method of selecting electors if they so choose.  Since Colorado's Constitution allows for initiatives to also pass oridinary legislation as well as constitutional amendments, I don't think that tack is going to send the initiative off course.  Nor will the fact that it opens up the possibility that this would only be used  this year.  After all, Colorado's 3 Republican electors were chosen in 1876 using a one time-only system, which is part of the reason why we didn't elect President Tilden.

[zorkpolitics]

It is highly likely at least two sets of EV would be sent from CO.  The Governor will probably  decide the referendum does not apply to the 2004 election and send in a winner take all set, the referendum supporters will go to court and get a court ordered proportional slate.  It is possible the CO legislature will meet and send a third slate.  Under current federal law, the EV certified by the Governor should take precedence.  However, if one senator and one congressman object, then Congress must decide which set to accept.

[nomorelies]

If someone wins by a couple of evs and win it by winning colorado. the outrage is going to be massive amongst the partisans.

[jimrtex]

Actually the law calls for a majority of electoral votes cast, not of electoral votes that could be cast,  If the situation were as given above with no electoral votes sent to Congress by January 6, then Kerry would win 269-262.  Now if conflicting slates were submitted then Congress would have the choice of which slate to use.

The Constitution says majority of electors appointed.  The appointment occurs on November 2nd, even if who was appointed isn't determined until later.

[Blue Rectangle]

Actually the law calls for a majority of electoral votes cast, not of electoral votes that could be cast,  If the situation were as given above with no electoral votes sent to Congress by January 6, then Kerry would win 269-262.  Now if conflicting slates were submitted then Congress would have the choice of which slate to use.

The Constitution says majority of electors appointed.  The appointment occurs on November 2nd, even if who was appointed isn't determined until later.

If I remember correctly, one of the possible outcomes in the 2000 election was that if FL had failed to appoint electors then neither Bush nor Gore would have had an EC majority.  The House would have decided in that case.

[minionofmidas]

I don't think it will pass, but keep these things in mind:

-Referendum laws vary widely state to state. Legislatures can change them even. So it's not so easy as to bring this up in every state.

Yes, true. Good point.

Btw: I fear it's more than likely we'll just get a modified 2000 repeat: the Colo. legislature certifying the Bush slate in violation of (new) state law, the Supreme Court overstepping its authority to prevent the certification of a seccond slate of electors, Dems not rising to the challenge.

[jimrtex]

It looks like the Colorado referendum will pass:

The support is soft.  The definites are 22%-21% Yes v No.

It is difficult to explain the more arcane weaknesses:
(1) Low threshold for 3rd party, especially if odd number of EV.  In a state with 9 EV, a party can secure 1/9 of the EV with 1/18 of the vote.
(1a) EV for 3rd parties increase chance of throwing election to House of Representatives and Senate.
(2) Perverse incentives: A result of Bush 49, Kerry 44, Nader 6, other 1 is better for Kerry than Bush 49, Kerry 46, Nader 4, other 1.  A switch of 2% from Kerry to Nader, switches an EV from Bush to Nader.
(3) Low proportionality when few EVs available.  If there are 8 EV, anything between a tie and 12.5% blowout is a 4:4 tie.
(4) Is unlikely to result in other states taking the same course.  Swing states may go from having 10 EV in play to having 0 EV.  States with a large number of EV and a dominant party are unlikely to give up dozens of EV.  States with a few EV are not going to throw away EV, when it will require absurd margins to switch even one EV.
(5) Recounts will occur at rather odd points.   In a state with 15 EV, a key may be whether one party gets 56.67% of the vote are not.  In a close national race, these are more likely to have a critical effect.
(6) That a national election conducted under different rules would not have the same campaigns, perhaps not the same candidates, and perhaps different results.  It would be like changing the rules of football so that a TD is worth 5 points instead of 6.  You can't simply substitute 5 for 6 and recalculate the final score.  You have to figure out the times teams would have kicked FG, instead of going on 4th down and failing or succeeding, when they might have done a normal kickoff despite a 5% chance that it would be runback, rather than a squib kick that they goobered.

It is possible that the financial backing of a Californian from Brazil could become an issue, especially since California also has a liberal initiative process.

If it is clear that Bush will win in Colorado, Democrats may vote for the measure knowing that getting 4 EV is the best than they can do in Colorado.  Add in a split vote by Republicans and Independents who think that it sounds fair, and it could carry.

[True Federalist (진정한 연방 주의자)]

Actually the law calls for a majority of electoral votes cast, not of electoral votes that could be cast,  If the situation were as given above with no electoral votes sent to Congress by January 6, then Kerry would win 269-262.  Now if conflicting slates were submitted then Congress would have the choice of which slate to use.

The Constitution says majority of electors appointed.  The appointment occurs on November 2nd, even if who was appointed isn't determined until later.

Wrong.  3 USC 1 specifies November 2nd as the day they are supposed to be appointed, but then 3 USC 2 allows for State legislatures to appoint them on a later date, if they fail to be appointed then.  Hence election day is the earliest day that electors can be appointed and Federal law thus explictly allows for the possibility of electors not being appointed.  So If Colorado fails to appoint its 9 electors, the winner would be whoever has the votes of a majority of the 529 appointed electors.  If electors were appointed but failed to cast their ballots then they would still count in determining how many votes were needed to win.  The far likelier result if the referrendum passes is that two competing slates of electors will be sent to Congress for them to decide which to use.

[jimrtex]

Actually the law calls for a majority of electoral votes cast, not of electoral votes that could be cast,  If the situation were as given above with no electoral votes sent to Congress by January 6, then Kerry would win 269-262.  Now if conflicting slates were submitted then Congress would have the choice of which slate to use.

The Constitution says majority of electors appointed.  The appointment occurs on November 2nd, even if who was appointed isn't determined until later.

Wrong.

Since it was your assertion that the US Constitution says that it is a majority of electoral votes cast, am I to understand that this is your acknowledgement of my correction, and now you are disagreeing about whether an appointment occurs on November 2?

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What does "failure to make a choice" mean?  I doubt that any state actually formally determines its appointees on November 2nd, so it doesn't make sense that all states fail to make a choice.  

Current Colorado law has a procedure for appointing electors, and once the results of the election are canvassed and the final abstract of votes prepared, the Secretary of State can immediately certify the persons who were appointed on November 2nd.

Then, once it is determined whether Prop 36 passed, the Secretary of State will inform the Governor.  The amendment will take effect when proclaimed by the Governor, not later than 30 days after the votes are canvassed (Prop 36 has a section that could be interpreted as accelerating the proclaimation process, but it seems dubious that an amendment can change the process by which an amendment is made).

It doesn't make sense for the Secretary of State to not certify the 9 electors immediately, based on the prospect of some change in the Constitution that will not come into effect until some indefinite future date.  

So the only question is then if the Governor proclaims the amendment to have taken effect, does the Secretary of State, roll the dice, and then send out new certificates to a new set of appointees?