View From a Height
Commentary from the Mile High City
Wednesday, September 22, 2004

Amendment 36 News 

The Rocky's Jim Tankersley has two articles about Amendment 36 this morning, one of them oddly, albeit obliquely, criticizing the lack of discussion of the issue. (Earth to Rocky: You guys decide what goes on the front page.)

The poll numbers aren't good: 47-35 in Favor, but only 22-21 in favor among those paying attention. It suggests that casual voters are intrigued by the idea of "fairness," whatever that means. Do they fall away as they learn more, and consider the possibilities? Or are the activists, the ones who are more likely to recognize the partisan impllications, the only ones who are firmly committed at this point? I guess we'll find out. Do remember, though, that this is part of the same POS poll that had Salazar up by 11, so I'd like to see some confirmation before I decide if this is real.

(One small media note. Katy Atkinson and Rick Ridder are political consultants working opposite sides of this issues, and each is cited in both articles. Atkinson is identified as a Republican both times; Ridder is never identified as a Democrat.)

Independent analysts say the issue forces Colorado voters to think strategically: Whom do I pick for president, when do I vote for him (early, absentee or on Election Day) and how do I vote on Amendment 36 to best help my candidate?

"The logic is, every voter in Colorado should be thinking strategically, depending on his preferences," said Jack Rakove, a Stanford University history professor who has written extensively on the Electoral College and the Constitution.

"But to do that, you have to go down to the wire. You have to look at both local and national polls. That's a lot to ask most people to do."

Maybe. I plan to vote against this thing even if Kerry is up 14 points in the state on November 1. It's bad for Colorado, it undermines the notion of the Electoral College. If adopted nationally, it would place much too much emphasis on urban areas at the expense of rural and suburban districts, and it would eviscerate the political power of the flyover states.

I think most Republicans, conservative by nature, would vote the way I will. But let's assume I'm in the minority. Let's assume that everyone who goes to the polls has to vote tactically. If somebody thinks his candidate wins the state, he votes against 36. If someone thinks his candidate loses, he votes for. If he thinks it's too close to call, it comes down to his risk-aversion. Isn't it more than faintly ridiculous to ask people to go to the polls to choose electors not knowing the system they're voting under?

I know redistricting is goverened, in theory, by its own set of rules. But suppose we went to the polls, picked a party, and then voted for one redistricting plan or another. We could just apply our party-votes to the candidate of whatever district we ended up in. Absurd? Of course it is. But it's no more absurd than asking candidates to campaign in a state not knowing what the prize is. Or asking people to choose a system not knowing what the result would be in that very election.

The Rocky goes on to assert that:

Constitutional scholars say the biggest lawsuit potential lies in Article II of the U.S. Constitution, which states that "Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors" for president.

The key word is "legislature." The question is whether a ballot initiative is the same as a "legislature" under the Constitution - in other words, whether voters themselves can choose how electoral votes are allocated.

Well, maybe. I think this is a dodge, and agree with a later poli sci. professor that if the legislature sets up a process whereby people can legislate, and the Court approves whatever measures come up under the rules, that Article II wouldn't seem to be much of an obstacle.

However, Title III Section 5 of the U.S. Code reads:

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

On its face, this is pretty clear. People shouldn't be asked to vote not knowing the rules they're voting under. I can think of two meaning to the "day fixed for the appointment." One is Election Day, the other is the deadline for the Secretary of State to certify the results. The latter makes no sense. Suppose a special session of the legislature were to decide to change the rules in-between Election Day and the certification. If the "day" in question is Election Day, the law doesn't say "on the day," or "near the day," or "after the day, but everyone knew it was coming," it says "prior to the day."

This is the essence of fairness. Everyone knowing the rules going in, playing by those rules, and someone winning. Florida turned into a circus because everyone decided that the rules didn't matter. (Rather, one side decided that. But when the state courts agree, it amounts to the same thing.) The rules for how a ballot worked didn't matter. The rules for how ballots got counted didn't matter. The rules for deadlines didn't matter. The reason Robert Bork wanted the Court to rule on 3 USC 5 rather than Amendment 14 was that rules make things clear. Fuzzy ideas about "fairness" lead to fistfights.

The only good thing about this election in Colorado is that Republicans control enough state House delegations that if Kerry and Bush do tie, 269-269, even if Democrats carry both the 3rd and the 7th, and win the state delegation 4-3, it won't be enough to elect Kerry. So at least we won't be looking at more than one legal circus on November 3rd.

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