Rick's suggestion for why the GOP might have chosen not
to challenge Amendment 36 before the election, if
correct, creates what an eminent English judge once
called an "appalling vista."  Rick's point is that a
pre-election suit would have to proceed in state court
because of Article III, and therefore it would go
through the same state supreme court that struck down
the GOP's re-redistricting.  The federal 10th Circuit,
where post-election litigation would be appealed from
federal district court, seems more hospitable to
Republican interests.

Perhaps Rick is right about the GOP's thinking.  And
maybe it doesn't even matter, since public perception
will be shaped by what the press reports during any
post-election litigation, and pundits can suggest that
this was the strategy even if it wasn't.  But I think
Article III probably would not bar a suit in federal
court right now.  There might be other reasons not to
do it, e.g., a calculation that voters in Colorado
would turn against President Bush if a suit were
commenced now.  And maybe the GOP wouldn't want to risk
losing on a jurisdictional motion before the
election--and there are non-Article III grounds that
might pose more of a risk of defeat.

But it seems to me that a national party or a
presidential campaign could allege a concrete
pre-election injury from the presence of Amendment 36
on the ballot.  It's certainly reasonable for the RNC
to spend more money in Colorado if it's a winner-take
all state with 7 electoral votes at issue than if it's
a proportional state with (effectively) 1 vote at
issue. 

I also think a federal judge would be influenced by the
practicalities of the situation; for reasons explained
by several people on the listserv, it's very desirable
to sort this out before the election rather than after.
 The same sort of practical consideration would also
militate against dismissing on prudential ripeness
grounds.

If a federal court were going to toss out a
pre-election suit, the most likely non-merits grounds,
it seems to me, would be abstention.  Which, of course,
could lead to pre-election state-court litigation,
which would implicate Rick's theory about the parties'
forum preferences.  In fact, commencing federal-court
litigation could provoke a countermove by the
iniative's supporters in the form of a state-court
suit, whose pendency they could point to in arguing for
federal-court abstention.

By the way, it's hard to describe how intensely people
over here in the Netherlands are following the
election.  The debates have been aired live at around 3
a.m. and then replayed the following morning at 9. 
Campaign coverage is often the lead item on the nightly
news, and U.S. public-opinion poll results are reported
almost daily.  Names like Rumsfeld are well-known
(Quick, name the Dutch Defense Minister.  Or the Prime
Minister.  Or the Queen.).  If we have another bout of
post-election litigation, the old 60s slogan might be
just about right:  the whole world will be watching.