Amendment 36 Q&A

The Colorado Freedom Report:  An independent journal of politics and culture.

The Colorado Freedom

Amendment 36 Q&A

by Ari Armstrong, October 27, 2004

Question: What would Amendment 36 do?

Answer: Currently, Colorado, like 47 other states, assigns all of its electoral votes to the Presidential candidate who wins the most popular votes in the state. Amendment 36 would split the electoral votes according to the split of the popular vote. This is a terrible idea for reasons described below.

Question: Who is behind Amendment 36?

Answer: The Denver Post reports: "Denverite and former Howard Dean campaign manager Rick Ridder is running the pro-amendment effort on behalf of J. Jorge Klor de Alva, a wealthy Californian who has provided $698,000 of the campaign's $700,000 in contributions."

Why does a Californian care about Colorado's voting procedures? Quite simply, if Amendment 36 had been in place in 2000, Al Gore would be President today. De Alva predicted that Colorado would again support Bush, so Amendment 36 might help Kerry this year. Notably, rather than try to change the rules for 2008, Amendment 36 explicitly seeks to impose retroactive law and impact this year's Presidential race.

Robert Lipton writes in an October 21 letter to the Rocky Mountain News, "If Amendment 36 had been in effect in Colorado during the last election, Al Gore would have won. But, if Amendment 36 had been in effect in California, George Bush would have won easily. Is this why Californians are trying to get a change in Colorado law but not California?"

Interestingly, though, as others have pointed out, if Kerry happened to win Colorado, Amendment 36 could actually throw the election to Bush.

Question: Why is winner-take-all good for Colorado?

Answer: It maximizes Colorado's influence in Presidential politics.

Right now, Colorado has nine electoral votes (equal to the seven Representatives and two Senators from the state).That means that, every four years, the Presidential candidates vie for those nine votes, or 1.7% of the total. If Amendment 36 passed, chances are every election five votes would go to one candidate and four to the other. All the campaigning in the world, then, would likely change only one electoral vote in any candidate's favor. One electoral vote out of 538 is 0.19% of the total.

Unlike this year, when the Presidential and vice-presidential candidates have been to Colorado many times, if Amendment 36 passed campaigning in Colorado would offer candidates little or no benefit.

One particularly short-sighted advocate of Amendment 36 believes that would actually be a benefit. In an October 20 letter to the Denver Post, Patricia Corcoran argues, "The Denver Post opposes Amendment 36, citing a possible loss of Colorado's 'political relevance' since candidates wouldn't campaign here for only one or two more electoral votes. If that means the end of relentless mud-slinging ad fests on TV, then that's a bonus."

True enough, the "mud-slinging" gets old. But that's a minor annoyance compared with the cost of giving up our influence in Presidential politics.

There are many less-visible advantages to maximizing our influence by maintaining a winner-take-all system. Even which candidates the parties select is influenced by this. If Amendment 36 passes, chances are dramatically reduced that a Coloradan could ever run for President, for instance.

Physicist Alan Natapoff has done a lot of mathematical work demonstrating the virtues of the electoral college.

Question: Is the winner-take-all system unfair?

Answer: No. Those who favor Amendment 36 claim that, if the electoral vote is split to more closely match the popular vote, that's somehow more "fair." But there's no good argument behind the claim. Reducing the relative influence of all Colorado voters, as Amendment 36 would accomplish, is hardly "fair."

The claim is that Coloradans who want Candidate X to win should be able to select electors who vote for Candidate X. Majoritarianism, however, holds that most voters should be able to select a final winner. It is the current system that makes it more likely that if most Colorado voters choose Candidate X, that candidate will win. If Amendment 36 passes, it's more likely that if most Colorado voters choose Candidate X, that candidate will lose. Thus, while supporters of Amendment 36 claim the measure would make the votes of Coloradans "count," the result would be to undermine the choice of the majority of Colorado voters.

There is a more fundamental point. Is majority rule "fair?" What if the majority chooses to enslave, kill, or rob the minority? In politics, the only appropriate standard of fairness is the protection of individual rights. Fairness demands limits on the powers of the majority. Majority rule can be overturned by the nine members of the Supreme Court, for instance. Of course we never want to choose voting rules based on individual characteristics such as race or gender. But distributing power geographically as well as popularly, and thus implementing more checks on power, is more likely to yield fair outcomes -- i.e., the protection of individual rights.

Question: What is the history of the electoral college?

Answer: As William Kimberling points out, state legislatures have always had the Constitutional ability to select Presidential electors as they choose to legislate. Indeed, notes Kimberling, South Carolina's legislature directly selected electors until 1860. However, very early in the 1800s all the states (but one) adopted a winner-take-all system based on the popular vote. The reason for this is obvious: each state maximizes its influence through a winner-take-all system.

More recently, Nebraska and Maine split their electoral votes (more on that below). Some people want to completely dump the electoral college and go to a national popular vote. Some of these people also favor run-off voting, in which voters rank candidates, a system that the assures the winner finally ends up with over half the vote. (Today, candidates can and often do win with less than half the vote because of minor parties.) I also tend to favor run-off voting at all levels, so long as ranking is optional rather than mandatory, but I want to keep the electoral college and the winner-take-all system.

Amendment 36 is the equivalent of unilateral disarmament. It hurts Coloradans. What would happen, though, if every state adopted the system outlined by Amendment 36? In short, more populated states would become more influential in Presidential contests, to the disadvantage of smaller states like Colorado.

As I explained in previous articles on this page and for the Rocky Mountain News, the primary purpose of the electoral college is to distribute power geographically as well as popularly. That is, successful Presidential contenders have to prove their appeal in many states rather than just in a few large states. A geographic check on majority rule is a good thing, just as all kinds of other checks on power in our system of governance are good.

The writers of our Constitution couldn't perfectly predict how it would work. As it turns out, the electoral college is even more important today, now that the U.S. is much larger and consists of many more states.

Yet the founders failed in another of their goals. The electoral college is literally a group of people who get together to vote for the President after the general election. A vote for a Presidential candidate is actually a vote for electors who support that candidate. The founders thought the electors would meet and deliberate the Presidential pick. Of course that doesn't happen. A few times an elector has voted for the "wrong" candidate, but basically our system today casts electoral votes for President based on the (regional) popular vote. The actual electors don't play any essential role in the process. They are anachronistic but benign.

Thus, the essence of the electoral college today is the distribution of electoral votes that splits the difference between direct (nation-wide) popular vote and geographic influence by state. The fact that an actual group of people gathers together to officially designate the electoral votes is immaterial. There's no reason to change the system, especially given the risk that some would try to weaken it.

Note the beauty of the electoral college. The House gives each state power in accordance with its population. The Senate gives each state equal power. The electoral college, then, splits power along both popular lines and regional lines. It's really very clever. Yet the electoral college was modified by the Twelfth Amendment in 1804, and, according to Kimberling, for good reason.

Hamilton, in his essay concerning the election of the President (Federalist 68), presumed the geographic distribution of power that arises from basing the electoral college, in part, on the number of Senators. He pointed to the virtues of geographic influence when he argued a candidate will have to have talent and merit "to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of the President of the United States."

Yet Hamilton especially liked the idea of a reflective intermediary body, and that just doesn't exist today. Voters always think of themselves as voting for a President, not for an elector. The meeting of electors is a formality. Hamilton saw electors as "men most capable of analyzing the qualities adapted to the station and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice." Further, "A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation."

It is perhaps unfortunate that Hamilton's plans for a contemplative group of electors didn't pan out. Hamilton wrote, "It will not be too strong to say that there will be a constant probability of seeing the station [of President] filled by characters pre-eminent for ability and virtue." Today, we would be warranted in ending that sentence after the word "characters." In fairness to Hamilton, though, we must admit a good system of rules is merely necessary for good governance, and not sufficient. A leader of ability and virtue arises only from a culture that widely promotes the same.

Question: Do the systems of Nebraska and Maine prove a split electoral vote maintains a state's influence in the Presidential election?

Answer: No. A split electoral vote diminishes a state's influence. Amendment 36 would not impose a system like that of Nebraska and Maine, but would instead be much worse.

Nebraska State Senator DiAnna Schimek writes, "[A]ccording to the Washington-based Tax Foundation, Nebraska receives $1.19 back in federal expenditures for every $1 paid in taxes to the federal government. Compare that to Colorado, which has nearly double Nebraska's number of electoral votes but receives only 78 cents in federal expenditures for every $1 paid in taxes. Clearly, the fact that states can deviate from winner-take-all has little to do with the amount of federal attention or largess they receive."

Schimek's statistic doesn't support her argument. The fact that Colorado gets back reletively fewer federal funds than Nebraska does not prove that the different electoral systems produced that result. A great number of other factors may be responsible for that result, such as relative economic strength and demographics. Useful statistics would have to look at changes over time, taking into account other factors.

As perhaps Schimek is aware, Congress, not the President, is primarily responsible for federal spending. Of course, all states get two Senators, regardless of population, meaning that all small states are relatively advantaged in the Senate. That's another big reason to discount Schimek's statistical comparison.

While Schimek writes as though Amendment 36 is similar to Nebraska's system, that is not in fact the case. In Nebraska and Maine, the winner of the state-wide vote automatically gets two electoral votes (in correspondence with the two Senators). Then, additional electoral votes are assigned according to the popular vote in each Congressional district. Thus, the systems of Nebraska and Maine are much closer to winner-take-all than what Amendment 36 would provide. Amendment 36 splits all the electoral votes according to the split of the state-wide popular vote. Thus, Amendment 36 is much worse than the systems of Nebraska and Maine.

It is telling that a Democratic politician believes the amount of pork a state gets is the indicator of a state's influence. Perhaps leftist Democrats believe the proper goal of politics is to maximize the forced redistribution of wealth and pork-barrel spending, but most Coloradans understand that's not the case. Many of us believe that pork and special-interest group warfare are a disvalue rather than a value. Regardless, Coloradans hold many values, many of which do not come with a price tag. Many of us don't want to maximize the amount of pork we get from the federal government; instead, we want to minimize the amount of money we have to pay to people in other states.

Question: Would Amendment 36 increase voter participation?

Answer: No. Amendment 36 would actually decrease voter participation.

While Colorado leans Republican, it's an independent state. This year, both sides have been very active trying to get out the vote. Indeed, the number of new voter registrations has astonished reporters and election officials.

If Amendment 36 passed, even massive efforts to turn out voters would result in the shift of only one electoral vote. Thus, there would be little incentive for people to get very excited about participation in Presidential politics. When nine votes are up for grabs, people get very excited.

Schimek writes, "One of the criticisms of the Electoral College is that it depresses voter turnout because voters do not believe their one vote makes a difference. With the Nebraska system, voters have a greater sense of believing they are affecting the outcome of the election because the state's electoral votes can be split. This system also encourages more grass-roots, minority and third-party organizing for the same reasons. Nebraska's Secretary of State John Gale recently stated, 'In a state so dominated by Republicans, Democrats can feel withered on the vine. At the local level, [our system] has invigorated Democrats. I think it makes a difference.' With the combination of two of our congressional races being very competitive and the presidential election being so close, voters in Nebraska have a real incentive to make their opinions known through the ballot."

First, Schimek inappropriately combines tight Congressional races with the Presidential race. Of course tight Congressional races get voters excited, but that's not what we're talking about. Schimek can't credit her state's electoral split for something caused by Congressional politics.

Second, Schimek cites no actual evidence to back up her claims about increased voter participation. One politician speculates -- "I think it makes a difference" -- that the electoral split invigorates Democrats. Well, no doubt Democrats are happy that the electoral split gives a couple electoral votes to the Democrat, but this doesn't prove more Democrats are active in politics.

My piece in the explains why an electoral split hurts both minorities (all minorities, including racial minorities) as well as minor parties. I've also argued here and here that Amendment 36 offers no real benefit to minor parties.

Schimek's argument about minor parties rings particularly hollow. At least Amendment 36 offers some real hope of a minor party picking up a single electoral vote. Nebraska's system doesn't even do that. In Nebraska, the majority of people in an entire Congressional district would have to vote for a minor party in order to swing an electoral vote for that party. That's just not going to happen. Thus, there's no reason to think Nebraska's electoral system has encouraged "third-party organizing," and every reason to believe Schimek is blowing hot air.

A winner-take-all system is necessary, but not sufficient, to encourage more voter participation. If a state leans very heavily to one party, voters won't be particularly inclined to fight for those electoral votes. They will consider the matter a done deal. However, splitting the electoral vote would barely help in such cases, as at most one electoral vote would be up for grabs. The cost would be a loss of influence for the entire state.

But Colorado is an independent state, so every reason and all available evidence indicate our winner-take-all system encourages voter participation.

Again, Amendment 36 would not in any way eliminate the electoral college; it would only alter the electoral votes of Colorado. However, I have heard a pretty good argument that a direct, national popular vote for President "could give state governments some incentives to increase voter turnout, because the more voters a state turned out, the bigger its role in national elections and the bigger its overall share in the national tally." However, it's not at all clear that this would encourage more voter turnout than today's winner-take-all system. Besides, do we want voters to turn out because the state offers them rewards or punishments, or because they care about the outcome? But that's a debate for another day; I bring up the matter here only to help people distinguish between the debate over Amendment 36 and the debate over the electoral college.

Question: Is the retroactivity of Amendment 36 fair?

Answer: No. Amendment 36 seeks to change the rules for this election after the fact. This is potentially at odds with the state Constitution's prohibition of "retrospective" law.

Regardless of whether one supports the electoral college, wants to reform the electoral college, or seeks to implement a popular vote for President, Amendment 36 is a bad proposal on the grounds that it seeks to impose retroactive law. That is, we'll be voting on Amendment 36 and the President at the same time, without knowing whether Amendment 36 will impact how our vote for President is counted.

The retroactivity of Amendment 36 is bad for two distinct reasons. First, some people who wish vote strategically will not be able to do so because they won't know how their vote will be counted. These people are effectively disenfranchised by Amendment 36. Jason Napolitano of Fort Collins filed suit for precisely this reason: "In an interview with The Associated Press, he said people might vote for a minor party candidate on the assumption it would count toward at least one electoral vote. But if the measure is declared unconstitutional after the election, no one but the top vote-getter would get any electoral votes." Of course, the scenario Napolitano describes is only one of many ways Amendment 36 might influence strategic voting. An October 26 AP article reported about Napolitano's case, "U.S. District Judge Lewis Babcock dismissed a lawsuit that challenged a proposal on next week's ballot, saying he lacked jurisdiction."

The other major problem of Amendment 36's retroactivity is that it could produce an election nightmare, if it passes and the Presidential race is close. Diane Carman recognizes this point in her October 19 Denver Post column: "If Amendment 36 passes, our nine electoral votes could be... wildly contested" and the subject of "a colossal partisan slugfest."

Question: Is the electoral collage racist?

Answer: No. In fact, it helps minorities of all kinds, including racial minorities, as I've reviewed.

But why are we even talking about this? Amendment 36 doesn't do away with the electoral college; it merely splits Colorado's electoral votes. In Colorado, Diane Carman first raised the issue in her column. But why talk about that in the context of Amendment 36? Because Amendment 36 alters Colorado's electoral rules, Carman thought that would be a convenient "hook" to talk about the alleged problems with the electoral college. The danger of this is that some people might mistakenly vote for Amendment 36 under the mistaken impression that it would help do away with the electoral college.

According to Carman, the electoral college is tainted with racism for two distinct reasons. First, because it numbers electoral votes based, in part, on the number of House members, the original racist language pertaining to House members also impacted the electoral college. But those racist rules were abolished long ago. Second, today the electoral college gives people in smaller states relatively more influence, because the electoral vote is also based on the number of Senators, which are assigned two per state regardless of population. By coincidence, large-population states also have higher populations of minorities.

Carman writes, "Voters in Wyoming, the least populous state with three electoral votes and a population that's more than 92 percent white, have nearly four times the influence of California voters, where the population is nearly 41 percent minority. Based on the 2000 census, there are 164,594 people per electoral vote in Wyoming and a whopping 615,848 per electoral vote in California. You don't care about California? Fine, how about Colorado. Voters here have about 35 percent of the influence of their counterparts in Wyoming. Colorado's population is 17 percent minority, twice that of Wyoming... Vermont (97 percent white) has more than twice as much Electoral College juice as Colorado, and three times the influence of New York (32 percent minority). North Dakota (92 percent white) has nearly three times the clout of Texas (29 percent minority)."

Of course, Carman completely ignores Kimberling's point that it is precisely the winner-take-all system that gives minorities more power within their states.

Carman also fails to call for the abolition of the U.S. Senate, the more important and obvious way small states are given relatively more power.

Finally, Carman treats racial minorities as if they were homogeneous. Different racial minorities vary significantly. And of course individuals make their own decisions and may not vote according to what any given "group" to which they are assigned by columnists happens to favor. The smallest minority is the individual, as Rand says. People are members of all sorts of groups. Why do racial minorities assume special priority for Carman? What about ideological minorities? What about minorities of other interests?

What about geographic minorities? Coloradans are a small minority of U.S. citizens. The electoral college, along with the U.S. Senate, was created precisely to protect such minorities.

Of course Carman, a leftist, anticipates that in today's world abolishing the electoral college would significantly help leftist (usually Democratic) candidates for President. She'd be perfectly content to let New York and California drive Presidential politics. Carman tries to play the race card to help her hand. Yet she ignores all other minorities except ones based on skin color, and she distorts the impact of the electoral college on racial minorities, who often actually benefit by the system in important ways.

Where did Carman get her ideas? She doesn't say, but apparently they originate largely with Akhil Reed Amar, a law professor at Yale. Amar has written a piece for the New York Times as well as a lengthier treatment with his brother, continued here and here. Amar offers a wealth of important historical considerations. He is correct that, originally, politics in the U.S. was both racist and sexist. But the racist and sexist rules, which were pervasive problems involving much more than just the electoral college, were abolished long ago. In general, I find Amar's case to be unpersuasive and ideologically driven. (I'm not saying it's bad to be ideologically driven, I'm suggesting Amar's case is weak because of his prior ideological commitments.) Anyway, Amar needs to explain why we should keep the U.S. Senate if we should jettison the electoral college.

To summarize, Amendment 36 would not alter the electoral college except in Colorado, and then only in a way that would hurt racial and other minorities.

Question: Does the electoral college increase pork-barrel spending?

Answer: No. Pork-barrel spending is caused by other factors.

Interestingly, while Schimek argued pork-barrel spending is perfectly compatible with a split electoral vote, Carman argues pork-barrel spending is the result of the electoral college. Carman writes, "The imbalance of power explains a lot. It's why the smaller states generally get more back in federal revenues than they pay in federal income taxes, and why crop subsidies for rural America - no matter how ridiculous - will never result in presidential candidates touring the country depicting farmers as Cadillac-driving welfare queens." By implication, Carman suggests the winner-take-all system also contributes to pork-barrel spending.

Of course, the regional influence of pork-barrel spending is caused primarily by the Senate. Again, does Carman wish to abolish the U.S. Senate? If not, she may not logically argue to abolish the electoral college.

However, neither the electoral college nor the Senate cause pork-barrel spending. They may, however, influence where such spending goes. If the electoral college and Senate were abolished, would this reduce pork-barrel spending? Certainly not. At a minimum, it would redirect pork-barrel spending to larger states. Because many smaller states like Colorado tend to be more fiscally conservative, giving larger states more influence would likely increase the overall magnitude of pork-barrel spending.

However, I am glad to see that Carman opposes pork-barrel spending. I'll try to regularly remind her of that.

Conclusion: Vote NO on Amendment 36.

The Colorado Freedom