Colorado could prove rocky

[nomorelies]

It will interesting to hear the outrage if the election is close and they lose Colorado.

[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.

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?

I was making the assumption that all electors appointed would actually cast a ballot.  That seems to be a reasonable assumption.  IIRC, even the DC elector who chose to not vote for Gore cast a blank ballot.

If your interpretation were correct then Lincoln never had to worry about losing in 1864 even in the depths of the when it looked like McClellan would win, between the safe Republican upper north and the absent Confederate south, McClellan couldn't have gained a majority of electors taht could be appointed.

States still could appoint directly on November 2 by having their legislatures appoint them themselves, so the law is not being vague at all. and goes back to at least 1875.  Title 3 was reenacted into positive law in 1948.  3 USC 1 and 2 reenacted RS 131 and RS 132 and I don't have access at the moment to a copy of th Revised Statutes of the US to determine the when the laws they were a codification of were enacted, but I wouldn't be surprised if they are unchanged from the days when most state legislatures didn't bother to ask the people who should be electors and appointed them themselves.

[jimrtex]

I was making the assumption that all electors appointed would actually cast a ballot.  That seems to be a reasonable assumption.  IIRC, even the DC elector who chose to not vote for Gore cast a blank ballot.

If that was your assumption, then you should have stated that casting a vote and being appointed were the same, in your opinion.   It is clearly not wrong that the US Constitution sets the condition for election as a majority of electors appointed.  This was specified in the original Constitution (Article II, Section I), and maintained in the 12th Amendment.

For what its worth, the 2000 District of Columbia Certificate of Vote states that Gore received 2 votes for President, Leiberman received 2 votes for Vice President.  This fulfills the requirement of the 12th Amendment.  The certificate also notes (and names) the one elector who cast a blank ballot.  Including the undervote would simply be a matter of mathermatical reconciliation, to indicate that there was no error in the counts of 2.  Since the 12th Amendment gives a specific definition of how an elector casts their 2 votes, the 3rd elector in DC did not vote.  She was, however, appointed.

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Huh?   My interpretation is: The Constitution says majority of electors appointed.   I don't see a conection between this and the 1864 election (other than the Southern states did not appoint electors).

For the record, among the States that did appoint electors, a uniform 4.4% shift to McClellan would have tipped NY, CT, PA, IN, OR, and IL giving McClellan a 118-116 victory.  In addition, MD, MI, OH, and WI were within a 6.4% shift for another 44 EV.

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I don't see what this has to do with anything.  Clearly 3 USC 1 applies to appointment by popular election and appointment by some other method.  If it does not apply to appointment by popular election, then there is no requirement that Presidential elections be held on the 1st Tuesday after the 1st Monday in November.  So an election is a method of appointment, rather than a method of determing who is to be appointed.

3 USC 2 applies specifically to the case of when elections are used as the method of appointing electors.  It still does not make sense to treat the normal case of an election not being canvassed, etc. on election day as a failure to make a choice.  It is more likely to apply to cases like Missouri, where the law provides that in case of a tie, that the legislature will decide the winner in each district (Missouri electors are chosen by district, but elected by the Statewide vote).

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Most electors were chosen by the voters in all Presidential elections except that of 1800.  In 2 elections (1792 and 1800) a majority of States chose the electors with the legislature.  In 2 other elections (1796, 1812), the States were evenly split.   A majority of legislatures have not appointed electors since 1800.

[True Federalist (진정한 연방 주의자)]

If your interpretation were correct then Lincoln never had to worry about losing in 1864 even in the depths of the when it looked like McClellan would win, between the safe Republican upper north and the absent Confederate south, McClellan couldn't have gained a majority of electors taht could be appointed.

Huh?   My interpretation is: The Constitution says majority of electors appointed.   I don't see a conection between this and the 1864 election (other than the Southern states did not appoint electors).

Then I don't understand your original objection to my point that if the result of the Colorado inititiative passing causes none of Colorado's electors to not vote, something which realistically would happen only if no electors are appointed, (or do you expect Colorado to appoint nine idiots who all decide to not vote?) then Kerry would win if he had a majority of electoral votes from the electors of the other 49 States and DC, even if he did not have 270 EVs.  I clearly stated in my original post that if there were multiple slates from Colorado that which to accept would be Congress's job to do.  Indeed, under the law, they can't count the votes until they do decide which slate to accept, even if the result wouldn't matter because a candidate had 270 from the other States.  (To be precise they would have counted, the first five States alphabetically, and be stuck waiting to decided how the sixth, Colorado, should be counted, a bit pf precision that shouldn;t matter, but you seem to have a talent for picking at irrelevant nits.)

[jimrtex]

Then I don't understand your original objection to my point that if the result of the Colorado inititiative passing causes none of Colorado's electors to not vote, something which realistically would happen only if no electors are appointed, (or do you expect Colorado to appoint nine idiots who all decide to not vote?) then Kerry would win if he had a majority of electoral votes from the electors of the other 49 States and DC, even if he did not have 270 EVs.

I am unable to parse this.  What do you mean by "causes none to not vote"?   Is this that the same as "causes all to vote"?

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[True Federalist (진정한 연방 주의자)]

Then I don't understand your original objection to my point that if the result of the Colorado inititiative passing causes none of Colorado's electors to not vote, something which realistically would happen only if no electors are appointed, (or do you expect Colorado to appoint nine idiots who all decide to not vote?) then Kerry would win if he had a majority of electoral votes from the electors of the other 49 States and DC, even if he did not have 270 EVs.

I am unable to parse this.  What do you mean by "causes none to not vote"?   Is this that the same as "causes all to vote"?

OK, so poor proofreading on my part caused me to mistate what I intended to say by doubling the negative, which should have been single.  The context certainly made clear what I was saying, so once again, you've decided to pick at irrelevant nits.  This is an internet forum, not polished prose.  Am I to assume that because of your disdain for those that mangle the language while saying something that you hope that Bush fails to win this November?

[jimrtex]

OK, so poor proofreading on my part caused me to mistate what I intended to say by doubling the negative, which should have been single.  The context certainly made clear what I was saying, so once again, you've decided to pick at irrelevant nits.

No, it meant that I could not understand what you were saying.

Let's start from the beginning.  There are 538 elector jobs available, apportioned among the 51 States (for this discussion I will treat the District of Columbia as a State, and Congress as its legislature as per the 23rd Amendment).  I think you and I agree that it is not a majority of this potential number that is significant for election of the President and Vice President.

The US Constitution vests in each State's legislature the authority to direct the manner by which its electors are appointed.  At present, all States have directed that the electors be appointed according to the results of popular elections, according to the Statewide results in 49 States, according to a combination of Statewide results and congressional district results in Maine and Nebraska.

Many (all?) States have provisions for making appointments to fill elector vacancies, in case some electors are unable to make it to the meeting of electors in their State (the electors perform their duties on a single day).  Any such appointments simply supersede the election day appointments.

Congress has set the first Tuesday after the first Monday in November as the uniform date of appointment (this would apply whether the legislature or some other body made the appointments, or as happened in all States since 1880, the voters make the appointment by election).

In an election, it may not be possible to determine immediately and definitively who was appointed elector.  If a voter appoints by pointing at an elector-candidate and saying "We pick you", then millions of voters were pointing in different directions, some were pointing with both hands, some with their thumb, some with index and pinky, and some were picking their nose.

But, at least in my opinion, the electors are appointed on election day (there may be some exceptions such as if there was a tie vote, etc.).   It is a majority of the electors appointed that is the qualfication for being elected President and Vice President by the electoal college.   In Florida in 2000, it was not a question of whether electors had been appointed, but which electors had been appointed.

Finally, the electors meet in December (2nd Monday after 1st Wednedsay, a day short of 5 weeks from elections day) in their respective dates and cast their votes for President and Vice President.   In 2000, Barbara Lett-Simmons, an elector for the District of Columbia, cast a blank ballot.  The 12th Amendment specifies a specific procedure for voting, which in my opinion she did not fulfill.  Thus while Lett-Simmons was appointed, she did not vote.  But the failure to vote does not have anything to do with the majority needed to elect a President and Vice President.  I think you disagree on this point, believing, that the number voting determines the majority threshold (at the same time you may believe that Lett-Simmons did vote).

Now applying this to Colorado.  Colorado will appoint 9 electors on November 2nd, according to existing law.  After the votes are canvassed, the 9 will be certified as having been appointed on November 2nd.   At the same time it may be determined that Prop 36 had been approved, and it will go into effect when the Governor proclaims its passage.  In that case, it will be determined that a different set of electors was appointed on November 2nd, and an amended certification issued.  

It would seem likely that you would then have two sets of electors meeting and voting.  Under Prop 36, the electors are chosen by lot from among each slate of 9, there will be some overlap among the appointees.  Thus you may have 9 GOP electors in one set; and 5 GOP electors and 4 Democrat electors in the other set.  Since Prop 36 calls for a lottery to determine the appointees, this might qualify as a case of faiure to choose on election day under terms of 3 USC 2.

Of course there will be all kinds of lawsuits: trying to prevent canvassing of the presidential vote and certification of electors prior to Prop 36 coming into effect; a possible attempt to trigger a recount on the initiative itself; possible attempts to trigger recount provisions regarding elector apportionment; whether the Colorado Constitution's reservation of legislative authority to the People, applies to the US Constitution's provisions regarding State legislatures; trying to force an accelerated proclaimation of the amendment by the Governor; whether changing the rules that the election is conducted under, while the election is going on deprives people of the right to vote (the petitions for Prop 36 were filed after the filing deadline for candidates, mail voting will occur prior to November 2nd).

Eventually, it will all get dumped in the lap of Congress.  Hopefully, it will have no effect on the outcome of the election.  It doesn't really matter what Congress does at point.  They can make no determination leaving counting no Colorado EV for this election only; they can count the original EV, with no impact on future elections; they can count the revised EV, which might set a precedent for other States changing their laws in midstream in the future.

If it does have an impact on the outcome of the election, then all of these decisons will be made on a partisan basis.  The closest that you will get to a compromise is if one side realizes that their candidate wins whether by electoral vote, or by the House of Representatives making a decision when no candidate has a majority.

P.S. The uniform election date for electors started in 1845, when South Carolina was the only legislature appointing electors (since 1836).  At that time, there was a state opt-out, which Maine used until 1956.  I don't know whether the opt-out was converted to a grandfathered opt-out at some time.

The November election date was extended to the House of Representatives in 1872, and to the Senate in 1915 after passage of the 17th Amendment.

[True Federalist (진정한 연방 주의자)]

Let's start from the beginning.  There are 538 elector jobs available, apportioned among the 51 States (for this discussion I will treat the District of Columbia as a State, and Congress as its legislature as per the 23rd Amendment).  I think you and I agree that it is not a majority of this potential number that is significant for election of the President and Vice President.

Agreed.

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I take a different point of departure.
3 U.S.C. 6 requires that the executive of each State to send to the Congress (and several others) the credentials of the electors as soon as it ascertained which are to be appointed.  If no such certificate is issued then I feel that no electors have been appointed.

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I think that she did cast a ballot, but even if she hadn't she had still been appointed so it took 270 votes to win in 2000, not 269.

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A lot depends upon how entwined the courts get in this issue.  It is entirely possible that a court might issue an injunction against issuing the certification of election required by 3 U.S.C. 6 which if it hadn't been overruled by the time to count the votes are to be counted would mean that no electors would be appointed from Colorado.  It is also possible that at different points in the appeals process, multiple certificates get issued.

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I would view the lottery more as part of the process of ascertainment described under 3 USC 6.

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If the dispute ends up in the lap of Congress, then given that I expect the GOP to retain control of both the House and the Senate, I expect that it will be decided in Bush's favor.  If the Senate does manage to end up in the hands of the Democrats which seems possible but not probable, then the process could grind to a halt, as if there is agreement that nine electors have been appointed, just not which nine, then while they could decde to not count Colorado's votes, a candidate would still need 270 votes to win.  Once a 9 GOP elector slate manages to get certified under 3 USC 6, then if the question of which slate to be used arises, the numbers are such that Bush will be elected after a politically bruising battle in Congress if need be.  Kerry will need to either get 270 EV's outside of Colorado, have 266 EV's outside of Colorado and only his 4 Colorado EV slate get certified under 3 USC 6, or have 265 EV's outside of Colorado and have no slate certified.  Ironically, if the result is outside Colorado Kerry 265 to Bush 264, it will be in the interests of Bush (as he should hadily win election in the House) to see that a slate, any slate, even a 5-4 Bush-Kerry split slate from Colorado gets certified.  The critical point is the 266-269 Kerry non-Colorado EV range.

[minionofmidas]

What this issue needs now is a pledge by both major candidates not to go to court if the ballot measure passes. Hopefully, someone will ask them for one in the townhall debate.

[jimrtex]

..., at least in my opinion, the electors are appointed on election day (there may be some exceptions such as if there was a tie vote, etc.).   It is a majority of the electors appointed that is the qualfication for being elected President and Vice President by the electoal college.   In Florida in 2000, it was not a question of whether electors had been appointed, but which electors had been appointed.

I take a different point of departure.
3 U.S.C. 6 requires that the executive of each State to send to the Congress (and several others) the credentials of the electors as soon as it ascertained which are to be appointed.  If no such certificate is issued then I feel that no electors have been appointed.

It depends on what is meant in 3 USC 6 by:

"as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment"

One interpretation is that ascertainment is the final step in the process of appointment.  The other is that ascertainment is simply determining definitively who had been appointed on election day.

Since Congress does not have the authority to direct the manner by which electors are appointed, I don't think that ascertainment is part of the process of appointment.  Instead, 3 USC 6 relates to Congress's role as the counter of the electoral votes.  In this case, counting goes beyond a simple exercise in arithmetic, but also includes the determination of which votes are valid.   Electoral votes that are in compliance, are more likely to be counted by Congress.

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I think that she did cast a ballot, but even if she hadn't she had still been appointed so it took 270 votes to win in 2000, not 269.
[/quote]

The Certificate of Vote for the District of Columbia can be found at (look in the 2000 election section).

Nation Archives - Electoral College

3 USC 8 directs that electors vote in the manner directed by the US Constitution (12th Amendment).  She didn't do so.  In the lists of votes from DC, the votes are President 2 for Gore; rather than 2 for Gore and 1 not voting (and similarly for Vice President).  There is a separate note about Lett-Simmons's blank ballot.

I agree that it doesn't matter, since it is a majority of the number appointed.

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A lot depends upon how entwined the courts get in this issue.  It is entirely possible that a court might issue an injunction against issuing the certification of election required by 3 U.S.C. 6 which if it hadn't been overruled by the time to count the votes are to be counted would mean that no electors would be appointed from Colorado.  It is also possible that at different points in the appeals process, multiple certificates get issued.
[/quote]

The canvas for offices and for initiatives is at the same time.  State law directs that votes for candidates be counted before votes on initiatives.  It is not explicit in the case of a canvas, but it is reasonable to follow the same order.  As soon as the winning candidates (including presidential electors) are determined, certiificates of election are issued.  And in the case of presidential electors, the various other certificates sent to the Federal government. 

As soon as it is determined that an initiative has passed, the Secretary of State informs the Governor.  Once the Governor issues a proclamation, it becomes effective.  But the Governor has 30 days to issue a proclamation (unless Prop 36 subsection (6) become effective prior to issuance of the proclamation, in which case the proclamation that makes this particular amendment effective, must be made sooner, or section 9 which says it becomes (became?) effective on November 3, 2004).

So is a court going to block action under existing law, based on an anticipated future change that purports to have retroactive effect?

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I would view the lottery more as part of the process of ascertainment described under 3 USC 6.
[/quote]

In 1789, Massachusetts had a two stage process to appoint its electors.  Each congressional district by popular election would nominate two persons to become elector.   The legislature then chose the elector between the two nominees.  The legislature chose the two "senatorial" electors directly.

Prop 36 has a two stage process.   Popular vote would decide the number of electors to be chosen from each slate of 9 elector candidates.  For each slate entitled to electors, the Secretary of State would select, by lot, the appointees from among its 9 nominees.  Is it different just because the second stage is non-deliberative?

The first part of 3 USC 6 is simply a notification process after the appointment has been made.   There would only be controversy under the second part because of the attempt to change the manner of election on the same day that an election is held. 

If Prop 36 had been enacted a year ago, it would simply be a process that could not be completed on November 2nd and fall under 3 USC 2.   Of course there is a solution that avoids this, that would simply require the parties to rank their elector candidates. But that would have required changing the filing rules - and the filing for President occured before the petitions for Prop 36 had been filed.

Couldn't Louisiana apply its election procedure for senators and representatives to presidential electors, and hold a run-off if no candidate has a majority?

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If the dispute ends up in the lap of Congress, then given that I expect the GOP to retain control of both the House and the Senate, I expect that it will be decided in Bush's favor.  If the Senate does manage to end up in the hands of the Democrats which seems possible but not probable, then the process could grind to a halt, as if there is agreement that nine electors have been appointed, just not which nine, then while they could decde to not count Colorado's votes, a candidate would still need 270 votes to win.  Once a 9 GOP elector slate manages to get certified under 3 USC 6, then if the question of which slate to be used arises, the numbers are such that Bush will be elected after a politically bruising battle in Congress if need be.  Kerry will need to either get 270 EV's outside of Colorado, have 266 EV's outside of Colorado and only his 4 Colorado EV slate get certified under 3 USC 6, or have 265 EV's outside of Colorado and have no slate certified.  Ironically, if the result is outside Colorado Kerry 265 to Bush 264, it will be in the interests of Bush (as he should hadily win election in the House) to see that a slate, any slate, even a 5-4 Bush-Kerry split slate from Colorado gets certified.  The critical point is the 266-269 Kerry non-Colorado EV range.
[/quote]

Or the Colorado General Assembly could change the manner by which electors are appointed.

[jimrtex]

What this issue needs now is a pledge by both major candidates not to go to court if the ballot measure passes. Hopefully, someone will ask them for one in the townhall debate.

It's impossible to avoid court action on this.