<x-flowed>Related to Prof. Lowenstein's point that election lawyers ought to hash out
constitutional issues well before the election instead of waiting to see if
injury occurs and then letting the nation hold its collective breath while a
court 'decides' the election, Judge Posner in his recent Nader opinion made
clear his belief that a candidate can bring constitutional claims well
before the actual injury occurs in order to give the court a reasonable
schedule to adjudicate the claim.
Dan
www.djwinfo.blogspot.com
From: "Lowenstein, Daniel" <lowenstein@law.ucla.edu>
To: <election-law@majordomo.lls.edu>
Subject: Colorado Amendment 36
Date: Wed, 13 Oct 2004 21:58:47 -0700
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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