A New Line of Attack on Colorado's Amendment 36

I have already written about the serious risk that Colorado's Amendment 36---which would change the allocation of Colorado's 9 electoral college votes from winner-take-all to a proportional allocation---could be held by the U.S. Supreme Court to run afoul of Article II of the Constitution because the change is being made by the people, not by the state legislature. In my Los Angeles Times oped on the topic (now available here), I indicated I was less convinced that a challenge to the retroactive nature of the amendment would be successful. I conceived of such a challenge as raising due process concerns. But Professor Mark Scarberry of Pepperdine has raised another concern in a post to a constitutional law listserv (reprinted here by permission). Scarberry writes:

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

I don't have time to look into this myself now, but I would like to hear from other election law scholars with their reactions, which I will post on the blog. By the way, Mickey Kaus links to this poll showing the initiative trailing in the polls. It might be, as Kaus suggests, that if Democrats think Kerry can win Colorado, they are likely to abandon the initiative. That's reason enough, by the way, that this initiative never should have been put on a presidential ballot to apply immediately, where its merits are inextricably bound with the partisan consequences in the short term.

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Professor Rick Hasen
Loyola Law School
919 South Albany Street
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rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org