Amendment 36 Threatens Electoral Integrity

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The Colorado Freedom

Amendment 36 Threatens Electoral Integrity

by Ari Armstrong, September 22, 2004

Amendment 36, to appear on Colorado's ballot in November, is a legally unsound proposal that would disempower Colorado voters and undermine America's political checks and balances. The proposal hopes to divide Colorado's electoral votes for president according to the popular vote. Currently, state law specifies that all electoral votes go to the candidate who wins the most popular votes.

The most glaring problem is that Amendment 36 explicitly tries to impose retroactive law. The text reads, "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."

Since when is it appropriate to change the rules in the middle of the game? If the presidential election is close this year, the passage of Amendment 36 could throw the election to the courts -- again.

The electoral rules will influence how some people vote. If Amendment 36 were in place, some people would be more likely to vote for one candidate, whereas if it weren't in place, they would be more likely to vote for another. But nobody will know whether 36 is in place until after the votes for president are cast. Thus, those whose votes would be influenced by the rules 36 imposes are effectively disenfranchised this election cycle: they cannot know that the vote they cast will count the way they intend it to count.

Because Amendment 36 risks throwing the presidential election to the courts and also prevents some voters from casting their vote as intended, 36 flatly contradicts its own value statement: "The right to vote for president of the United States is a fundamental right and each person's vote is entitled to equal dignity and should count equally."

Ironically, as Ralph Shnelvar points out, Amendment 36 simultaneously invokes and violates the Colorado Constitution. Article II, Section 1 of the U.S. Constitution states, "Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors..." Amendment 36 tries to get around this by claiming, "The Colorado Constitution reserves to the people of this state the right to act in the place of the state legislature in any legislative matter, and through enactment of this section, the people do hereby act as the legislature of Colorado for the purpose of changing the matter of electing presidential electors..." Is a ballot measure the equivalent of the "legislature" as specified by the U.S. Constitution? Does this language belong in the Colorado Constitution? Whether or not 36 is compatible with the requirements of the U.S. Constitution, the Colorado Constitution also states, "No ex post facto law... shall be passed by the general assembly." [October 27 update: Please see a follow up discussion about this point.] Given the advocates of Amendment 36 wish a popular vote to substitute for the legislature, that popular vote must at least abide by strictures of the state Constitution. Amendment 36 fails that test.

The fact that Amendment 36 attempts to impose law retroactively is, by itself, sufficient reason to reject it. (Indeed, I think those voters unable to cast a vote as intended because of 36 could make a good legal case the amendment shouldn't even appear on the ballot.) No other argument is necessary: retroactive law in such cases is inherently unjust (as well as unconstitutional) and must be rejected.

Still, the retroactivity of Amendment 36 is only one of its many flaws. I'll describe some additional flaws, hopefully with the understanding that an unassailable case has already been made against 36.

As the Rocky Mountain News pointed out, if other states passed the equivalent of Amendment 36, the presidential election would more likely be thrown to the Congress. To win the presidency, the victor must earn a clear majority of electoral votes. Without such a clear majority, Amendment XII specifies, "then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President." (It's possible, though unlikely, I suppose, that Colorado alone could trigger such a situation.) This outcome, again, undermines Amendment 36's own stated goals.

Various opponents of Amendment 36 point out that, if Colorado splits its electoral votes, neither major-party candidate will have any incentive to campaign here. That's true, but it doesn't get to the core of the problem.

The most fundamental problem with Amendment 36 is that it would diminish regional checks on majority rule, thus undermining the balance of power among the states and weakening Colorado.

The Founding Fathers never intended the president to be selected by popular vote. Instead, the Founders created two filters. First, the people of each state select the legislature. Then the legislature determines how electors are selected. Finally, those electors select the president. It turns out, then, that you, the reader, have almost certainly never cast a vote for any presidential candidate at any point during your life. The only exception is if you've served as an officially designated member of the electoral college.

Part of the value statement expressed by Amendment 36, that every presidential vote "should count equally," was intentionally rejected by the Founders. Instead, a major purpose of the two-tiered Congress was to give less-populated states some parity. That is, the number of Representatives is decided by population -- except that every state gets at least one Representative regardless of population -- whereas the number of Senators is the same for every state: two. Thus, the votes of people in less-populated states are given greater weight.

This system carries over directly to presidential politics. Article II, Section 1 of the U.S. Constitution specifies each state has a "number of electors, equal to the whole number of Senators and Representatives to which the state may be entitled in the Congress..." Thus, from the outset, votes for president were never granted equal status: people from less-populated states always cast a vote that carried more weight.

Thus, the Founders intentionally made the selection of the president primarily a geographical affair, rather than a popular one. The reasons for this are obvious: it protects less-populated states from more-populated ones and rural voters from urban. Thus, the indirect selection of the president according to states is an important part of America's political checks and balances. It is not a majoritarian process, and it was never intended to be so. The Founders very much wanted to prevent the tyranny of the majority.

In an excellent history of the electoral process, William Kimberling points out the selection of presidential electors is still a matter left to state legislatures. Early on, state legislators selected electors in a variety of ways. "Some State legislatures decided to choose the Electors themselves. Others decided on a direct popular vote for Electors either by Congressional district or at large throughout the whole state." However, Kimberling continues, "by 1836, all States had moved to choosing their Electors by a direct statewide popular vote except South Carolina which persisted in choosing them by the State legislature until 1860." These were "winner take all" votes such as we now have in Colorado. Whichever set of electors gets the most popular votes gets to cast all the state's electoral votes for president. More recently, Maine and Nebraska decided to split their electoral votes by "selecting two of its Electors by a statewide popular vote and the remainder by the popular vote in each Congressional district," Kimberling points out.

It's obvious why states went to a winner-take-all system (with but two recent exceptions): that maximizes the relative influence of the state. I actually heard people out collecting signatures for Amendment 36 claim people needed to sign it in order to make their vote count for president. The truth is precisely the opposite: by splitting Colorado's electoral votes, Amendment 36 would assure that Colorado votes are on net worth less.

We in Colorado are the minority. Thankfully, we have weighted representation in Congress and in the electoral college. We maximize our regional strength in the electoral college by maintaining winner-takes-all. A quick glance at population statistics demonstrates our numerical disadvantage. As the Census Bureau points out, the population of the U.S. in 2003 was about 291 million people. California accounted for over 35 million, or about 12% of the total. Florida had about 17 million, New York had 19 million, and Texas had about 22 million. Meanwhile, Colorado had a population of around 4.5 million, or 1.5% of the total. To maximize our influence, we must pool our electoral votes.

As Ed Quillen summarized for the Denver Post, the Founding Fathers "were suspicious of direct democracy. Of the three branches of government -- executive, judicial, legislative -- only one half of the legislative branch, the House of Representatives, was directly elected by the people under the original federal Constitution. Senators were selected by state legislatures, judges were appointed by the president and confirmed by the Senate, and the president and vice president were chosen by the Electoral College, which was in turn chosen by state legislatures." (Unfortunately, the Senate was thrown to popular vote with the Seventeenth Amendment in 1913.) Quillen concludes, "We have little-enough clout with nine votes in play; we would be insignificant with only one up for grabs, and that's what Amendment 36 would give us."

What's the whole point of "checks and balances," anyway? What's the benefit of federalism as opposed to centralized government? These things aren't valuable in and of themselves. They are indeed cumbersome. But they are necessary to limit the concentration of political power and protect individual rights. Sure, it's conceivable that a benevolent dictator might perfectly protect our rights. But who wants to risk it? Instead, we disperse power. One way we disperse power in the U.S. is by spreading political power out along geographical lines as well as popular lines. Sometimes, geography trumps the majority, and that's a good thing.

Incidentally, the systems of Maine and Nebraska, while hardly to be emulated, are still much better than what Amendment 36 offers Colorado. At least those states give some extra advantage to the candidate with the most votes in the form of two "freebie" electoral votes. If Colorado reformers were actually interested in empowering Colorado voters, rather than simply electing John Kerry, they would advocate run-off voting for president.

Ironically, Amendment 36 cannot fulfill it's own value statement, which holds "each person's vote... should count equally." The only way to accomplish that goal, as Kimberling notes, would be to abolish the Senate, abolish the electoral college, and completely obliterate any regional advantage. And then we'll be ruled by the most populated cities in the most populated states. All Amendment 36 would accomplish is to make Coloradans' votes, on net, less influential than they are now. The only proposal consistent with the value statement of Amendment 36 is to elect the president by a national popular vote. This would even more dramatically assault the checks and balances placed by the Founders on majority rule, and it would even more dramatically undermine Colorado's influence.

Incidentally, the other part of the value statement of Amendment 36 is wrong, too. It states, "The right to vote for president of the United States is a fundamental right..." It is not. Our fundamental rights are life, liberty, and property. The right of free speech, self defense, fair trials, etc., are extensions of the fundamental right to life and the derivative right to property. (Another way of stating this is that our property right in our own body and life is the fundamental property right, from which all others follow.) Our fundamental rights may not -- ever -- properly be violated by the majority. On the other hand, many particular organizational structures are compatible with individual rights. For example, we could replace the president with something like a prime minister and maintain good government. Thus, the right to vote for president is not "fundamental," it is a highly derivative right dependent upon the context of our specific form of governance. Our fundamental rights, on the other hand, are valid across cultures and political systems.

The main group that would benefit by the passage of Amendment 36 is the Democrats (at least so long as Colorado leans Republican). The reason Democrats want Amendment 36 to be retroactive is obvious: they want to help Kerry win this year. Thus, supporters of this proposal would weaken Colorado's long-term regional influence for short-term partisan gain. They might help Kerry win, but only by reducing the net value of Colorado presidential votes forever. Short-sighted benefits to particular groups notwithstanding, Amendment 36 is a terrible proposal that undermines just law along with the checks prudently placed on majority rule.

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