In a slight sense, that's half-right-- but it's deeply wrong.  Of course it's right that discretionary decisions, in partisan hands, have high potential of abuse.  But it's wrong (to understate it) to think we can take significant discretionary decisions away from election officials.  Rather, we need to find safeguards that reduce the likelihood of abuse.  E.g., 1)  16 States require local election boards to be multi-party ... which means 34 have no such safeguard.  (I may be out of date, this is as of 2+ years ago, I'll recheck soon.)  Four States require state boards to be multiparty (many States have no such boards), and 8 require it at both levels.  2)  Reduce the open-endedness of what's subject to discretionary decisions, e.g. Florida's now-replaced "intent of the voter" standard in a recount.

If we give significant election roles to elected Secretaries of State (or to appointees who can be as partisan as the appointer) then let's not attack them for partisan acts.  (But if we suffer enough of these election-distorting acts by partisans, more people may come to appreciate that most judges aren't merely  More Pols, even if the judges don't come from storks.  No way am I urging that we give judges larger roles in elections, I'm saying only that pols will be pols ... and rightly so.)

Kenneth Culp Davis wrote so well about discretion and safeguards::
    "Every governmental and legal system in world history has involved both rules and discretion.  No government has ever been a government of all laws and not of men in the sense of eliminating all discretionary power....
    "Elimination of all discretionary power is both impossible and undesirable.... In todayâs American legal system, the special need is to eliminate unnecessary discretionary power, and to discover more successful ways to confine, to structure, and to check necessary discretionary power....
    "[T]he discretionary power that is found to be necessary should be properly confined, structured, and checked....  By reason of the structuring, the chances of arbitrariness or other abuse, though not eliminated, are substantially reduced."
 

Rick Hasen wrote:

Putting aside the legal issues Mark raises, there are some political concerns as well.  As I understand it (from a reporter, not from my own research), there are discretionary date decisions to be made by both the Secretary of state and the governor and there is already talk about timing for political advantage.  Depending upon how the initiative (if it passes) could help or hurt the presidential candidates, we could see a rush or slow down of certification.  What would be of the "safe harbor" day if this issue is not timely resolved?
This is yet another argument in favor of taking discretionary election decisions out of the hands of partisan election officials.
 

Scarberry, Mark wrote:

Cross posted to electionlaw and conlawprof lists:

As I previously argued, it seems nearly certain to me that Amendment 36 cannot be applied to this election, because Amendment 36 by its terms does not become effective until November 3. Giving it effect would require that the choice of presidential electors be made on or after Nov. 3, in violation of 3 U.S.C. section 1. Seehttp://electionlawblog.org/archives/001970.html.

A review of the Colorado Constitution suggests that the Amendment could not even go into effect on Nov. 3, but only when the governor officially proclaims the result of the vote on the Amendment (or 30 days after the election in the absence of such an official proclamation). Here is the text of Article V, sec. 1, cl. 4 of the Colorado Constitution (from http://i2i.org/Publications/ColoradoConstitution/cnart5.htm): 

"(4) The veto power of the governor shall not extend to measures initiated by or referred to the people. All elections on measures initiated by or referred to the people of the state shall be held at the biennial regular general election, and all such measures shall become the law or a part of the constitution, when approved by a majority of the votes cast thereon, and not otherwise, and shall take effect from and after the date of the official declaration of the vote thereon by proclamation of the governor, but not later than thirty days after the vote has been canvassed. This section shall not be construed to deprive the general assembly of the power to enact any measure."

The initiative will not be effective until the governor's proclamation, and it seems highly unlikely such a proclamation will issue on November 3. Perhaps someone on one of the lists is familiar with Colorado election procedures, but it seems likely that certification of the election results, including the presidential vote, will precede any proclamation by the governor. In that case, the electors will have been chosen (even if we think they are not chosen until certification) under the old "winner take all" rules. Could the initiative then cause a different set of electors to be chosen?

By the way, the Colorado voter information pamphlet can be found at http://www.state.co.us/gov_dir/leg_dir/lcsstaff/2004/ballot/2004BluebookforInternet.PDF.

Mark S. Scarberry

Pepperdine University School of Law

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org