Here is a description of a conversation with plaintiff Jason Napolitano and
of a request from him. 

The request first. He is not a lawyer, and he wants to represent himself.
But the procedural issues in the case (including justiciability, about which
we talked at length) are difficult. He would appreciate receiving informal
guidance from any list member who would be willing to provide it. His
telephone number is (970) 204-4973. He is not affiliated with a political
party (at least not with respect to his suit--I don't know whether he might
be registered with a party). He wants to avoid entanglement with any party,
but he would appreciate whatever guidance list members might be able to give
him. I made clear to him that I could not represent him, could only talk
about ideas and concepts, could not give him legal advice, and had mixed
feelings about whether a court should intervene at this point.

Now for a description of the conversation and its background:

Rick's electionlaw blog includes pdf files of the pleadings in the case
filed by Jason Napolitano to enjoin application of the Colorado electoral
vote initiative (Amendment 36) to this year's election. The pleadings
included Mr. Napolitano's phone number. I decided to call him and bring to
his attention the argument that 3 U.S.C. section 1 prohibits application of
the initiative to this year's election. See
http://electionlawblog.org/archives/001970.html. I left a message for him,
and he called me back later after reviewing the argument.

He is not a lawyer, though he seems very conversant with the Article II
issues that arose in Bush v. Gore. His primary concern seems to be that
voters cannot know in advance how their votes will be counted. If the
initiative passes (and is upheld), then their votes will be counted one way
in allocation of electoral votes. If the initiative fails (or passes but is
struck down) then their votes will be counted another way. The uncertainty
has a dramatic effect only on the class of voters whose first choice is a
third party candidate; thus the equal protection argument, and thus the need
for a determination before the election of whether the initiative will be
applied. His pleadings include an interesting chart showing the effect on
such voters of the uncertainty.

He argues that the initiative would not violate Article II as applied to
later elections, because the initiative allows the legislature to change the
method of allocating electors. But for this election the legislature will
not have such an opportunity if the initiative applies to it. Thus he argues
that the initiative would violate Article II if it were applied to this
election. His pleadings show some sophistication of argument in dealing with
Smiley, Hawke, and the other relevant precedent.

He was quite interested in the 3 U.S.C. section 1 argument. 

I am still interested in comments from the list on that argument; is anyone
else game to comment on it?

Mark S. Scarberry
Pepperdine Univ. School of Law