<x-charset utf-8>          Mark Scarberry's argument regarding the effective date (contained in Rick's news post and reprinted below) is interesting and perhaps is correct.  But it seems to me that it would be plausible to say that the "choice" (if the verb is "chuse," should the noun be "chuice"?) occurs on the day that the voters vote, and not on the effective date.  After all, the choice of electors at the November 2 election is not certified until days or weeks after.  That does not prevent us from saying the choice was made on November 2.  So the choice how to allocate the electors to the candidates is in the same sense made when the voters vote, regardless of when the initiative becomes effective.  I'm not sure that is right and that Mark is wrong, but it doesn't seem to me a slam dunk.
 
        What bothers me the most about the Colorado initiative is that it makes the ground rules of the election uncertain at the time the voters vote.  That has always seemed to me to be very wrong.  (In 1972, when I was working in the California Secretary of State's office, I wrote an amicus brief objecting to efforts to have a federal court retroactively change California's winner-take-all primary into a proportional one.  The only issue I was concerned with was that voters voted under one ground rule, and it would be wrong to change it afterward.)  But I don't know if it is unconstitutional for a state to do this, however wrong it seems to me.
 
        One last thought.  I think the legal community has let the country down on this.  The issues over the applicability of Amendment 36 to this year's election ought to be litigated before the election.  Admittedly, the amendment may not pass and if it does, the chances that the difference in Colorado's electoral votes will be decisive are small.  But they are not vanishingly small.  However difficult pre-election litigation would be for whatever courts had to rule, if the amendment does pass and it turns out to be decisive, I think the resulting problem in the absence of pre-election litigation will be far worse than what we encountered in 2000.
 
           Best,
 
           Daniel Lowenstein
           UCLA Law School
           405 Hilgard
           Los Angeles, California 90095-1476
           310-825-5148
 
 

	Of course there has been discussion of whether Colorado's voters may act as the state's "Legislature" under U.S. Const. Art. II, sec. 1, cl. 2. Only if so may the voters change by initiative the manner of selection of presidential electors. I think it is doubtful (at least) whether they may do so. But the question whether the initiative may be applied to the 2004 choice of electors does not seem to me to be a close question at all. 

	The initiative would add a new section 13 to Article VII of the Colorado Constitution. Section 13 would provide for proportional division of presidential electors. The initiative states explicitly that "This section [i.e., section 13] shall be effective on and after November 3, 2004." See numbered paragraph (9) of the initiative, the text of which may be found at http://www.lawanddemocracy.org/amend36.html. (One of my students, who happens to be the proprietor of http://politics.blogs.com, surprised me by telling me that the initiative had an explicit Nov. 3 effective date, and the text bears him out.)

	The initiative does provide that it is intended to have retroactive effect so as to apply to the election held on November 2. But I believe it cannot have that effect. Article II, sec. 1, cl. 4 provides that "The Congress may determine the Time of chusing the Electors ... ." Congress has done so in 3 U.S.C. section 1:

	"The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President."

	Thus Colorado must "chuse" its electors on November 2. Colorado will do so by vote of its people on November 2. The choice will be made under the existing "winner take all" approach, which will still be in effect on that date even if the initiative passes. The state could only choose electors after November 2 if there was a failure to choose them on November 2 (see 3 U.S.C. section 2) or if an elector position becomes vacant (see 3 U.S.C. section 4).

	By its terms, the new section 13 added by the initiative (if it passes) would not go into effect until November 3. The only way it could be given effect for this election would be for it to have the effect of "un-chusing" the electors that were chosen on November 2 and replacing them after that date with new electors. The federal statute, enacted pursuant to Art. II, sec. 1, cl. 4, does not permit that.

	Perhaps there is a feature of the Colorado Constitution providing that initiative measures cannot go into effect until the day after an election. Otherwise I don't understand why the initiative drafters would have drafted it with a November 3 effective date. But in any event, that is the effective date, and I do not see how it can be given retroactive effect without violating federal law.

	Am I missing something?

	Mark S. Scarberry
	Pepperdine University School of Law



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