Wampum

Colorado Amendment 36-- Can They DO that?

In a previous post, I failed to answer three questions about Colorado Amendment 36. That ballot inititive is designed to allocate Colorado's nine electoral votes by the popular vote rather than on a winner take all basis. I left the fourth question -- can they DO that?-- for later. Later has become now.

In comments to my previous post, Susan writes:

Nebraska and Maine don't have a winner take all presidential election system. Of course they can do it

In one sense, Susan is surely correct. States are free to allocate their electoral votes in any manner they see fit.

Maine and Nebraska choose to excercise that power by allocating two electoral votes to the popular vote winner and one electoral vote for the winner of the popular vote in each Congressional District.

If Maine and Nebraska can choose that allocation, is there any reason Colorado should be not be permitted to allocate all of its electoral votes according to the popular vote? Of course not.

The problem is that what is objectionable is not the chosen allocation but rather the method of making that choice.

The Constitution of the United States in Article II Section 1, Clause 2 provides:

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...

The Constitution plainly grants the power to make the allocation of electoral votes to each state legislature. Colorado is attempting to make that choice by ballot initiative. Does that make any difference? I think that it does both as a matter of both law and politics.

As a matter of law, the Constitutional delegation of power to the various State Legislatures can not be lightly dismissed. Take a different constitutional delegation of power to the state legislatures for example. Article I, Section 3, Clause 1 of the United States Constition provides:

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature there.

That provision prevented the direct election of Senators untl the enactment of the Seventeenth Amendment.

Given that it took an Amendment to the Constitution to take the power of electing Senators away from the state legislatures in favor of election by popular vote, why should the allocation of electoral votes require anything less?

If Colorado voters have a sufficient desire to allocate Colorado's electoral votes in proportion to the popular vote, they will make that an important factor in casting their votes for a State Legislature. If the voters of Colorado fail to elect such a Legislature, then an insufficient public consensus exists on the issue to warrant upsetting the winner take all allocation. The current winner take all allocation arises from an act of the Colorado legislature.

Colorado Revised Statute 1-4-304 (5) provides:

Each presidential elector shall vote for the presidential candidate and, by separate ballot, vice-presidential candidate who received the highest number of votes at the preceding general election in this state.

In 2001, a bill was introduced in the Colorado legislature to change the way Colorado apportioned its electoral votes. The bill, known as SB 51 would have apportioned seven of Colorado's electoral votes by Congressional district with two electoral votes going to the winner state wide (like Maine and Nebraska). SB 51 passed the Colorado Senate but failed to be enacted into law.

The State Legislature enacted a winner take all method of allocating Colorado's electoral votes. The Colorado Legislature reecently considered a measure to change that allocation but could not muster sufficient votes to do so. Having failed to change the allocation by act of the legislature, the proponents of Amendment 36 are now trying to do so by ballot initiative.

The plain language of Constitution grants the power to allocate elecdtoral votes to the State Legislature. It makes no provision for changing that allocation by referendum. Amendment 36, being a balot intitiative, is the act of the voters of Colorado not an act of the Colorado Legislature. Thus, the amendment is constitutionally ineffective to change the Legislature's choice of a winner take all allocation.

If that seems sort of open and shut, please first consider the argument for the constitutionality of the amendment.

The proponents of the Amendment recognize that the Constitution assigns the power over electoral vote allocation to the State Legislature. They also recognize that only the State Legislature has the power to change the current winner take all method. Their argument to uphold the constitutionality of Amendment 36 is that the voting public isthe State Legislature. The following language is included in the Amendment (pdf):

The Colorado Constitution reserves to the People of this State the right to act in the place of the State Legislature in any legislative matter, and through the enactment of this section, the people do hereby act as the Legislature of Colorado for the purpose of changing the manner of electing Presidential electors..

That is an interesting argument. If a state chose to have each registered voter as a member of a (very large) Legislature and essentially conduct its business by referendum (perhaps with heavy use of information technologies), that would seem to be a legitimate, if unwise, choice. I have little doubt that, in such an event, a referendum of the (very large) State Legislature would be effective to change the allocation of elecotral votes.

Colorado has not done that. There is, in fact, a duly elected state legislature in Colorado. It is no argument that the Colorado Constitution permits the voters to overide the Legislature by referendum. The United States Constitution trumps the State Constitution. Colorado can not, either by legislation or amendment to the State Constitution, change the constitutional grant of power to the Legislature.

In addition, the provision of the Colorado Constitution apparently relied on by the proponents of the Amendment does not really allow the voters to act as the State Legislature.

The Colorado Constitution clearly distinguishes between the power of the legislature and the power of the people.

Article V of the Colorado Constitution provides, in part, as follows:

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.

(2) The first power hereby reserved by the people is the initiative ....

Amenedment 36 is an effort to exercise the power reserved to the people by the Constitution of Colorado. It is not, under Colorado law, the exercise of the power of the State Legislature. As the Constitution of the United States requires that the allocation of electoral votes be decided by the Legislature and not by a vote of the people, it is hard to see how Amendment 36 would be constitutionally effective to change the current winner take all method of allocation.

Can they DO that? I think the answer is no, they can not do it by ballot initiative. Changing the allocation of Colorado's electoral votes requires the act of the Colorado Legislature.

After the debacle of the 2000 election, I do not wish to see the 2004 Presidential election decided by the Courts. If the Colorado ballot initiative passes, and if the allocation of electoral votes under that Amendment proves decisive in the Presidential race (either way), I fear the repercusions of having a second consecutive Presidential election decided by the courts.

Posted by Dwight Meredith at August 24, 2004 02:54 PM | TrackBack