SPLITTING THE DIFFERENCE
Some thoughts on Colorado's plan to divide its 2004 Electoral Vote
Tuesday, October 19, 2004
by Richard E. Berg-Andersson
If there are two essential truths within the concept of Representative Democracy (that is, democratic government in which basic policy is determined by elected representatives of the People who, however theoretically, make up the ultimate "sovereign" in any Republic [whether democratic or no]- as opposed to Pure Democracy, in which each individual citizen of voting age theoretically, where not practically, has a direct vote re: governmental policy [for example, the New England 'Town Meeting' in the United States of America])- which are interrelated, it is these:
1. There is absolutely no way for Representative Democracy to truly and most fully mirror the actual political and/or demographic (of whatever type) breakdown of the People who have, via a given Electoral System, chosen their representatives (the People, in their capacity as the corps of a Republic's citizen-voters in any given election, known collectively as the electorate) and
2. therefore, any elections in which this electorate might participate are more akin to the children's game of Musical Chairs than anything else: the "music" stops (in other words, there is some arbitrary determinant of when this "music" comes to an abrupt end [the election is declared to be "over"- the polls have closed, after which the legal votes will have been counted]) and those who can- thereafter- gain the "chairs" (seats in a legislature, an executive's chair) and who almost always unnumber the candidates (those actively vying for those "chairs") then become the duly elected representatives of the People via whatever Electoral System might be utilized to mathematically manipulate the results based on the counted votes in order to then most fully and fairly (in terms of the given Electoral System itself) assign these "chairs" to the victors thus declared "elected" according to said system, .
Every "Electoral System" is, thus, an artificial means of trying to make sure the resultant legislature (and/or executive) as well as is practicable represents the Will of the People as expressed via the aggregate of their individual choices from among the candidates available to them in a given election (how many seats/chairs can each voter choose, as well as how many candidates might be vying for those seats/chairs, almost always being determined by factors outside the mathematical workings of a given Electoral System itself). However, as a given Electoral System must, by definition, work within this concept of Representation (as opposed to Direct Participation by the individual citizen-voter in governmental policy determination [again, in 'Town Meeting', for example]), it is- by its very artificiality- never ever going to be able to produce an exact "small scale" replica of the political breakdown of the entire electorate (in other words, someone or some group within a defined "political community" [in electoral systems, the constituency] is going to be, however somewhat, underrepresented- while other people and groups will, no matter what Electoral System might actually be used, be overrepresented- in whatever governmental body [or person occupying a single elective office] might result from any given election).
This is certainly no less true of the manner in which the United States of America ultimately elects its President (and Vice-President): each State has a number of presidential Electors equal to that State's two United States Senators plus its varying population-based number of members of the United States House of Representatives (the District of Columbia is allowed a number of such Electors no more than the number allowed to the least populated State) and the Popular Vote for President (since the candidates for Vice-President merely ride along as part of their respective national presidential "ticket"s) in that State (and the District of Columbia) determines for whom these Presidential Electors are expected to vote when they meet in their respective jurisdictions some weeks after Americans have actually gone to the polls. In the vast majority of States, these Electors are allocated on the basis known as "winner-take-all" (the presidential/vice-presidential "ticket" with the plurality of a State [or D.C.'s] Popular Vote for President is expected to garner all the "Electoral Votes" from that jurisdiction).
However, in two States only- Maine and Nebraska- the Electoral Vote is to be divided: the national "ticket" with the plurality of the Statewide Popular Vote gets only the two Electoral Votes derived from the State having two U.S. Senators, while the "ticket" gaining the plurality of the vote in each of the Congressional Districts of each of these two States gets one Electoral Vote from said Congressional District (it just so happens that neither State has, to date [Maine has been using this system since the 1972 Election, Nebraska has only been doing so since the 1996 Election], ever divided its Electoral Vote [in other words, to date- through the 2000 Presidential Election, the winner of the Statewide Popular Vote in both Maine and Nebraska has, in addition, always won the entire Electoral Vote from those two States (by also sweeping the Popular Vote for President by Congressional District in those States)]). Note that in none of these States- neither the two which divide their Electoral Vote into "at-large" and "Congressional District-based" nor those in the rest of the Union which (at least so far) have allocated their Presidential Electors via the "winner-take-all" method- does the Electoral Vote at all fairly reflect the actual political breakdown of the State's voters' choice for President of the United States.
Now there are those in the State of Colorado who wish to join Maine and Nebraska in potentially so dividing their own State's Electoral Vote for President and Vice-President-- but with a key difference, a difference- or so its proponents so earnestly hope- does seek to fairly reflect (at least a tad better than the two methods of allocating Presidential Electors currently in use, subject to the limitations on Electoral Systems in general I have already outlined in the first portion of this very Commentary) the actual breakdown of the State's popular vote for President in any given Election. Via Initiative and Referendum (a process by which ordinary citizens can petition to have proposed statutes or amendments to a State's Constitution placed on the ballot- via what is known as "citizen initiative"- subject to a vote of the People of the State- the "referendum"- at a regular General Election), an amendment to Article VII of the Constitution of Colorado- known as "Amendment 36"- has been proposed and will be on the ballot in Colorado this coming 2 November, at the same time as the voters of that State- along with all their fellow Americans- consider who should serve as President of the United States for the next four years. The relevant text of the proposal- which would add a brand new Section 13 to Article VII (which is that portion of the Colorado Constitution treating of 'Suffrage and Elections') reads as follows in its subsection 2:
The total number of Electoral Votes to which Colorado is entitled shall be divided among the presidential tickets on the General Election ballot, based upon the popular proportional share of the total statewide ballots cast for each presidential ticket.
In other words- quite unlike Maine and Nebraska, where all but two of these States' respective Presidential Electors are "winner-take-all" by Congressional District, rather than Statewide as "usual"- the Colorado plan would divvy up that State's Presidential Electors proportionally based on the Statewide popular vote for President! Why is this difference so "key"? Because, whereas- as I have already indicated- neither Maine (in 8 Presidential Elections so far) or Nebraska (in 2 such Elections) have ever divided their Electoral Vote (though Maine did come rather close to doing so in 2000: George W. Bush lost one of Maine's two Congressional Disticts to Al Gore by merely one percentage point), the Electoral Vote in Colorado would almost certainly be divided among two or more presidential candidates in every Presidential Election were the proposed Amendment 36 to be adopted.
The actual methodology of such proportional division of Colorado's Electoral Vote based on the Statewide Popular Vote for President, were this amendment to be adopted, would be as follows (as outlined in subsections 3 and 4 of this proposed new Section 13 of Article VII):
(3) The allocation of a presidential ticket's popular proportion of this State's Electoral Votes shall be in whole numbers and shall be made in the following manner:
(a) the total number of ballots cast in this State for each presidential ticket at a General Election shall be divided by the total number of ballots cast for all presidential tickets that receive votes at that General Election; and
(b) the proportion of a presidential ticket's Popular Vote... shall be multiplied by the number of Electoral Votes to which Colorado is entitled.
(4) The number of Electoral Votes that is attributable to the ballots cast for any presidential ticket... shall be rounded to the rounded to the nearest whole number, subject to the following limitations:
(a) No presidential ticket shall receive any Electoral Votes from this State if its proportion of the total ballots cast for all presidential tickets would reflect less than a full Electoral Vote after rounding to the nearest whole number.
(b) If the sum of Electoral Votes allocated... is greater than the number to which Colorado is entitled,
(I) the allocation of Electoral Votes to the presidential ticket receiving at least one Electoral Vote and the fewest number of ballots cast shall be reduced by whole Electoral Votes until only that number of Electoral Votes to which Colorado is entitled have been allocated; and
(II) [this] process... shall be repeated if, after [this] reduction of Electoral Votes... the total number of Electoral Votes allocated to all presidential tickets remains greater than the total number of Electoral Votes to which this State is entitled, and such process shall be applied to the presidential ticket receiving at least one Electoral Vote and the next fewest number of ballots cast until the total number of Electoral Votes allocated to all presidential tickets is equal to the total number of Electoral Votes to which this State is entitled.
(c) If the sum of all Electoral Votes allocated would be less than the number of Electoral Votes to which Colorado is entitled, the presidential ticket receiving the greatest number of ballots cast shall receive any unallocated Electoral Votes until all of the Electoral Votes to which Colorado is entitled have been allocated.
(d) If two or more presidential tickets receive the identical total number of ballots cast for all presidential tickets and the allocation of Electoral Votes to which Colorado is entitled cannot be proportionally allocated in whole Electoral Votes to these presidential tickets, the Secretary of State shall determine by lot which of these presidential tickets will have their number of Electoral Votes increased or decreased by a whole Electoral Vote until all of the Electoral Votes to which Colorado is entitled have been allocated.
Simply put- if Major Party presidential candidate X were to receive, say, 54.78% of the Popular Vote for President in Colorado, with Major Party candidate Y receiving, say, 42.96% of the State's Popular Vote and the remaining 2.26% scattered among various and sundry Third Party and Independent candidates for President (given that Colorado currently entitled to 9 Electoral Votes), X would be allocated 5 of the State's Electoral Votes (4.93 rounded up to the nearest whole integer) and Y would be allocated 4 (3.87 likewise rounded up to a whole number) [NOTE: since the 2.26% non-Major Party total would entitle this total to less than 1 full Electoral Vote (0.20), it would be mathematically impossible for any non-Major Party presidential candidate to receive Electoral Votes per paragraph 4(a) quoted above].
It is not the purpose of this Commentary to discuss the relevant "pro"s and "con"s of this proposal per se; rather, I will use this piece to discuss the various constitutional issues which might well be raised against this proposal were it to actually be adopted and there are, indeed, several lines of legal challenge of which the opponents of Amendment 36 might well avail themselves-- I will write herein about two of the most obvious ones:
The first such challenge would be the notion that- where the U.S. Constitution says (in its Article II, Section 1, clause 2): Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...- "Legislature" means, literally, State Legislature- in this case, the Colorado General Assembly, in and of itself, as a political institution- and, therefore, altering the "manner" of "appointing" Electors by Popular Referendum would violate the mandate of the Federal Constitution. This is a rather interesting legal gambit because it was already tried, for somewhat different purpose, by the Bush/Cheney '00 campaign in that fascinating legal struggle over 'to whom shall Florida's then-25 Electoral Votes go- George W. Bush or Al Gore?' four years ago which culminated in the U.S. Supreme Court decision known as Bush v. Gore.
One of the many legal arguments the Bush/Cheney '00 lawyers made in Bush v. Gore- as part of their attempting to thwart recounts of the Florida presidential election popular vote that, so they feared, might well still result in Florida being found to have more voted for Gore/Lieberman after all (an outcome that would have given then-Vice President Gore the Presidency)- was that "legislature" in that Article II, Section 1, clause 2 of the Federal Constitution partially quoted in the previous paragraph was, indeed, intended by the Framers of that document to be the Florida Legislature alone, as if in a vacuum (basically the same argument that would now be made in an attempt to thwart Colorado's Amendment 36, were it to be adopted), and that, therefore, the Florida Judiciary- all the way up to the Florida Supreme Court (which had ultimately upheld the first set of court-ordered recounts and even set a deadline for them to be completed) itself- had absolutely no authority to legally review Florida's own election statutes and their implementation, at least as far as a presidential election was concerned (this argument seems to actually have had a two-fold purpose: if accepted by the high Court, it would mean that the original pre-court ordered recount certification made only a few days after Election Day would stand: giving then-Governor George W. Bush the outright victory with any recounts thereafter being of no legal effect; if put aside and not at all addressed by a national Supreme Court otherwise upholding the Florida Supreme Court's having authorized recounts, it might well then later justify- if necessary- the Florida Legislature's appointment of Bush Electors, even if a future recount determined that Gore had actually won in Florida [the Republican-dominated Florida Legislature, especially its House of Representatives (led by its then-Speaker/now-Congressman Tom Feeney) had already indicated its intention to legislatively "appoint" Bush Electors if Gore ended up being legally certified the winner of the Florida Popular Vote on the basis of yet more court- ordered recounts and let a Republican-majority U.S. Congress sort it all out (the Federal Electoral Law of 1887- still in operation to this day, by the way!- would force Congress to more or less automatically count these Bush Electors)]).
I even wrote about this at the very end of the whole Florida election debacle in a Commentary entitled 'OUT OF DIVISION, DECISION', where- among other things- I noted:
<<The U.S. Supreme Court, despite the heavy hand brought down upon this 2000 Presidential Election so divisively rather than decisively, did us all a big favor by short-circuiting a few potential happenings already well underway that could have further mucked up the Federal constitutional/electoral works more than they already are. For example, there was the erroneous theory- put forth by the Bush lawyers (but really taken and run with by the Republican leadership of the Florida House of Representatives)- that the term "legislature" in Article II, Section 1, clause 2 of the U.S. Constitution refers to the Legislature of a State alone as a body when, historically, it is a "term of art" referring to the entirety of the State's politicolegal system (it had to be just such a "term of art" back in 1787: Connecticut and Rhode Island were- at the time- both still operating under their colonial charters, neither of which embodied separation of powers to the fullest degree [in Connecticut, in fact, the upper house of the General Assembly- its Senate- functioned as, in effect, a Governor's Council as well as the Supreme Court of Errors, then that State's highest judicial body])- contemplating the State's Constitution, Legislature, Executive and Judiciary as a whole; I myself often enough read through the election codes of all 50 states plus the District of Columbia while doing research of various types for this site throughout this past Fall's campaign and I did not see one single statute passed by the Legislatures of the several States that their Governors did not have a say in (either to sign it or to veto it, subject to future override).>>
Put as simply as possible, "legislature" in Article II, Section 1, clause 2 of the Federal Constitution really means- to again quote my own words above- "the entirety of the State's politicolegal system... contemplating the State's Constitution, Legislature, Executive and Judiciary as a whole". The analogy here (albeit while fully accepting the proposition within the concept of Logic that "Analogy is Illustration, not Proof") is in the way the Framers of that very same document also happen to so often utilize the term "Congress":
for example: Article I, Section 8, clause 1 of the document reads The Congress shall have Power To lay and collect Taxes, Duties, Excises and Imposts, to pay the Debts and provide for the common Defence and general Welfare of the United States. OK-- so let's say Congress passes a tax increase (say, just for sake of the argument, it passes the House 247-177 and the Senate 53-42) which the President of the United States vetoes, a veto the House thereafter fails to override by a vote of 238-193 (thus failing to achieve the 2/3 vote to override a presidential veto required by Article I, section 7, clause 2 of the document)-- the tax increase cannot then go into effect: right? But, wait just a minute!-- doesn't the Constitution say "The Congress shall have Power to lay and collect Taxes"?- and didn't Congress already approve the proposed tax increase before the President vetoed it? why does it then not go into effect?-- because Article I, Section 7, clause 2 of that same Constitution reads Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States... and the President either signs the bill into Law (in which case, re: our hypothetical example here, the tax increase would have taken effect) or vetoes it (in which case, each house of Congress has to vote by 2/3 vote to override the presidential veto- which, in our hypothetical example, the House of Representatives failed to do- thus, the tax increase failed to become law and is, therefore, null and void).
When, during Oral Argument before the U.S. Supreme Court in Bush v. Gore, Bush/Cheney'00 campaign attorney Ted Olson (later to become the Bush Administration's Solicitor General) urged the view that "legislature" in the U.S. Constitution meant Legislature alone, as an institution in and of itself, Justice Anthony Kennedy voiced concern that a State's legislature could be seen as being so "unmoored from its own Constitution". The reason that the tax increase in our hypothetical example does not go into effect, even though Congress clearly utilized its "Power to lay and collect Taxes" by passing it before sending it on to the President, is that Congress cannot be- to use Justice Kennedy's terminology- "unmoored" from the other requirements of its own (in this case, the Federal) Constitution: put another way, Article I, Section 8, clause 1 should be read as if it actually says "The Congress (subject to signing any Bill into Law by the President or, if vetoed by him, each house of Congress overriding his veto by 2/3 vote, further subject to application and interpretation of said Law by the Federal Judiciary should a justiciable "case or controversy" arise under said Law) shall have Power To..."-- and only then read the various clauses of Article I, Section 8!
Likewise, a State's "Legislature"- when referred to in the Constitution of the United States- should be read as if it actually reads "Legislature (subject to the executing/enforcing Powers of the State's Executive and application/interpretation of the State's Judiciary)": thus, Article II, Section 1, clause 2 means Each State shall appoint, in such Manner as the Legislature (subject to the executing/enforcing Powers of the State's Executive and application/interpretation of that State's Judiciary) thereof may direct, a Number of Electors...
"OK- yeah", a reader of this piece might now say, "'Legislature' means the entire law-making/enforcing/applying apparatus of the State Government: fine, I accept that-- but how can a Popular Referendum still constitutionally alter the "manner" of "appointing" presidential Electors specifically as- yeah- 'the entire law-making/enforcing/applying apparatus of the State Government' may direct? Can the People themselves- that is, the ordinary citizens- be considered part and parcel of this 'law-making/enforcing/applying apparatus'?!" Let me address this last question with a story:
Several years- indeed, now nearly a decade- ago, I was alone in my den, lying on the sofa whilst channel-surfing in the wee hours of the morning ("57 Channels and Nothing's On" [;-)]) when I came across a videotaped discussion on one of my cable TV system's Public Access channels about a ballot question here in my State of New Jersey, one in which a woman was moderating between two other women- each of whom was on opposite sides of the issue that this particular ballot question involved. At the end of the discussion, the moderator turned to the camera and said something to the effect of 'You know, whatever you might think about what has been said on this program, it is very important that you, the voter, take the time to vote "Yes" or "No" on these ballot questions when you go to the polls to vote for your elected officials this November because such questions on the ballot are the only time when the State Legislature allows you, the voter, to decide what the law should be!' Admittedly half-awake to this point, I immediately sat up ramrod-straight, wishing I could- then and there- reach into my television screen, grab the moderator by the collar and scream "Listen, you! The State Legislature allows the voter nothing!! It is we, the People, who allow our legislators to do what they do!!!"
Keep in mind that which I wrote near the top of this very piece, that "the concept of Representative Democracy" is defined as "democratic government in which basic policy is determined by elected representatives of the People who, however theoretically, make up the ultimate "sovereign" in any Republic [whether democratic or no]". In other words: in Republican Democracy, it is the People who are "sovereign"-- for, who really makes the laws in a Republic?- We, the People, do!
In theory, We- the People- could, if we so desired, simply hold a "Town Hall Meeting" made up of every eligible voter in a State of this Union- or, for that matter, the entire United States of America- itself deciding what the laws of State (or Nation) should be; this would be, of course, so obviously unwieldy- so, what do we do instead? We, instead, write a Constitution for State (or Nation) in which We- the People- say, in effect, "we're all going to, periodically, freely choose members of a legislative body which will make the laws for us, on our behalf and in our name, because-- well-- we've all got lives and we have a lot of other things to do, things which do not allow us enough time to spend all our waking hours debating and approving laws BUT, in certain cases, We- the People- reserve for ourselves the opportunity to either make, or at least pass on, at least some of the things our legislators have done- even outside of regular elections". In other words, when my State's Constitution authorizes a question to be placed on the General Election ballot, it is not the New Jersey Legislature "allowing" me to have a say as to what the law might be: rather, it is me- along with my fellow New Jersey citizens- "taking back" from the State Legislature our inherent, law-making Power as citizen-voters-- Power we have always maintained, never ever really given up, and which we allow our elected representatives to "borrow" most of the time, for those same elected representatives only hold their positions in office so long as we might let them: and that is the very essence of that concept of "Governments... deriving their just powers from the consent of the governed" embodied in the American Declaration of Independence!
So, yes, ordinary citizens- the People themselves- can be considered part and parcel of that "entire law-making/enforcing/applying apparatus of the State Government"-- but only if they have already allowed themselves this power in their own State's Constitution!
Now, my State does not happen to have Initiative and Referendum in the fullest sense of that term. In New Jersey, the Legislature can raise revenue through Bond Initiatives which then must be approved by a vote of the People of the State in a General Election before they can take effect (the ballot question discussed on that cable TV Public Access channel in my story above was one of these) and, in addition, all Amendments to the State Constitution must be approved by a similar vote of the People of the State (such proposed Constitutional Amendments submitted to the People only upon 3/5 vote in each house of the Legislature or, failing this, a majority of each house of the Legislature in two successive sessions); but, otherwise- at least at the State level- the average New Jersey citizen cannot place measures directly on the ballot via petition (all Referenda in my State are the direct result of legislative action, not direct citizen initiative)-- that is, We- the People of the State of New Jersey- have not, at least as of yet, allowed ourselves to so exercise our inherent, sovereign law-making Power (though, naturally, we reserve the right to someday do so [as well as argue amongst ourselves whether or not to do so!])
This, however, is not the case in the State of Colorado! The Colorado Constitution begins with a Preamble typical of the Preambles of most State Constitutions as well as that of the Constitution of the United States itself: removing some of the more florid language, however, the essence of that Preamble is simply that [w]e, the people of Colorado... do ordain and establish this Constitution for the "State of Colorado". Thus, when the original provisions of Article V, Section 1 of that Constitution, beginning when Colorado was admitted to the Union in 1876, read in toto that [t]he legislative power of the State shall be vested in the General Assembly, consisting of a Senate and a House of Representatives, both to be elected by the people, it was clearly understood that the very "people" doing the electing of these legislative bodies were the same as those also doing the vesting of legislative power in this General Assembly (in other words, by "ordaining" and "establishing" their State's Constitution, the people of Colorado were giving up their inherent, sovereign power to make the laws of their new State to this Colorado General Assembly-- indeed, the very term "General Assembly" [an indirect inheritance bequeathed to Colorado by many of her older sister States to the East, especially some of those along the Seaboard which were once colonies of the British Empire] implies that the legislature of Colorado was intended as a substitute for a true "general assembly", which would have simply [however impractically] been a "Town Hall Meeting" of the entire electorate of that State!)
Thus, when on General Election Day in November 1910, the voters of Colorado approved an amendment to their State's Constitution adding, in part, the following words to Article V, Section 1- but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the General Assembly- the people of Colorado were here not at all crafting a brand new power for themselves but merely taking back- from their own elected representatives in their State's legislature- at least a portion of a law-making power they had always inherently possessed as the sovereign self-governing people of a Republican Commonwealth known, in the United States of America, as a constituent State of that very Federation! How, then, can the Colorado General Assembly be not only so "unmoored" from its own State Constitution but also be so "unmoored" from the very People who vested legislative power in that General Assembly via that document to begin with and subsequently took back at least some law-making authority via an alternative method of legislating- in this case, Initiative and Referendum? Put another way: how are the People of Colorado acting via Initiative and Referendum not themselves part of- to use my own words- "the entirety of the State's politicolegal system... contemplating the State's Constitution, Legislature, Executive and Judiciary as a whole"?-- how, then, are the People of Colorado altering the method of their State's "appointing" Presidential Electors via this Amendment 36 via Initiative and Referendum not doing so "in such Manner as the Legislature thereof may direct", as required by Article II, Section 1, clause 2 of the Federal Constitution, when- by the very nature of the 1910 Amendments to their own State Constitution's Article V, Section 1- they, the People of Colorado, become that very "Legislature" when they avail themselves of said Initiative and Referendum?! Thus, this particular legal argument against Amendment 36 makes no sense whatsoever!!
No, I'm afraid this argument that the use of Initiative and Referendum in order to change how the State of Colorado might allocate its Presidential Electors is a violation of the Federal Constitution, on grounds that "Legislature" in the Supreme Law of the Land means only the Colorado General Assembly in and of itself, is merely the proverbial "loser's gambit". A far better legal attack on Amendment 36 (at least insofar as its potential application to this year's presidential election might be concerned) would be the temporal one- that is, one involving its timing, the schedule of its intended implementation:
for the proposed Amendment 36 contains the following verbiage in paragraph f of its opening subsection: In the strongest possible terms, the voters of Colorado declare that, by approving this Initiative, they understand, desire and expect that the popular proportional selection of Presidential Electors is intended to apply retroactively and thus determine the manner in which our State's Presidential Electors are chosen and our State's Electoral Votes are cast for the General Election of 2004. Further, in the proposal's subsection 6 (which deals with how the Initiative, if adopted by the voters, is to be proclaimed by the State's Governor and the allocation of Electors thereunder is to be certified by the Colorado Secretary of State), it says that this subsection shall apply to the ballots cast for presidential tickets at the November 2, 2004 General Election.
The best argument in favor of these provisions would be that, since the Presidential Electors do not meet until the first Monday after the second Wednesday in December after the General Election in which the American voters actually vote for President of the United States (in 2004, this will be Monday 13 December), any change in how these Electors might be allocated adopted on that same General Election Day (as would be the case should Amendment 36 be ratified by the voters in Colorado) can be immediately applied to the Electors meeting a few weeks later. The problem here is simple: is it at all fair to tell the voters of Colorado "look, on Tuesday 2 November 2004- as you head to the polls to choose who you might want to be the President of the United States for the next four years, you are really choosing which presidential candidate for whom you want our State's Electors to cast their respective Electoral Votes but-- uh-- well-- we can't tell you, until we know the results of the Referendum on Amendment 36 on which you will be voting at the same time, exactly how your vote will translate into the actual Electoral Vote from our State"? Is it right and proper to ask the people of the State of Colorado casting their vote for President to so accept the fact that they won't necessarily know in precisely what Electoral System (to borrow my terminology from the very opening of this Commentary) their votes will thereafter be utilized?!
There is, however, precedent- in other States- for "the voter voting but not at the time knowing if, or how, his or her vote will actually be utilized"--- take, for example, the Gubernatorial Recall of October 2003 which replaced Governor Gray Davis of California with Arnold Schwarzenegger: in that case, two elections were held at one and the same time- one to answer the question of whether or not Governor Davis should be recalled, the second to determine who would replace him should he be recalled. Obviously, the voter thereby choosing a new Governor did not necessarily know for sure that Governor Davis would actually be recalled (despite the pre-Recall polling data, confirmed by the Recall Election, that Davis was already "toast"); equally obviously, if the recall of Governor Davis had not been approved by the voters, Schwarzenegger's victory in the concomitant Gubernatorial Election would have been of no legal or consitutional effect! Of course, the State of California did not appear to have any problem at all with this- the Recall Election had been conducted under the authority of specific provisions contained within that State's own Constitution and laws (and, indeed, the State of California has since continued as a political entity- its Government still operating under those selfsame Constitution and laws, missing nary a beat and seemingly none the worse for wear!)
But the outcome of a Presidential Election affects all Americans: thus, there is no little Federal oversight (for instance, as I myself have written- more than a few times for this very website- Congress is the ultimate "umpire" of a Presidential Election [as it actually was four years ago, despite the U.S. Supreme Court's decision in Bush v. Gore]. While I myself think it highly unlikely (indeed, just about as unlikely as it was that Gray Davis would survive the California Recall Election last year), what if a 5-4 split in Colorado's Electoral Vote causes a different Electoral College decision as to who becomes President and Vice-President in the 55th Administration than were all 9 Electoral Votes from that State to go to one candidate? Can the fact that the voters of Colorado would be, by very terms of Amendment 36 itself, left completely unaware as to how their votes for President might actually count in that Electoral College as they voted then pass Federal constitutional muster?
A rather interesting question to ponder!