To split or not to split
Amendment 36, if passed, would split electoral college votes
by Armando Manzanares
The Metropolitan
Colorado voters will be casting their ballots either in favor or opposition of four state proposed amendments on Nov. 2. Each of these amendments made their way to the ballot by means of citizen petition—obtaining the necessary 67,829-signature requirement set by the Colorado Constitution for 2004.
Kjirsten Brischle / The Metropolitan
A professor from DU Law School, Robert Hardaway, speaks to Metro students on Wednesday, Oct. 6 in the Tivoli. Hardaway discussed Amendment 36, which proposes to modify the manner in which Colorado's electoral votes are allocated.
Selection of Presidential Electors, or Amendment 36, is set to change the state constitution by changing the process of selecting the nation’s president to using a proportional system instead of the current one, which is a popular vote, winner-takes-all of the state’s nine electoral votes.
If Amendment 36 passes, it will divide the nine electoral votes in proportion to each candidate’s share of the popular vote, or one ninth of the total. Should a candidate not get the entire number of votes needed to get the additional electoral, rounding would occur and the candidate closest to the necessary number for the next one ninth of the popular vote would get that electoral vote. The amendment will also add procedures and timelines to certifying election results. All of this will go into effect immediately should the ballot measure pass.
Robert Hardaway, Denver University law professor and author of “The Electoral College and the Constitution: The Case for Preserving Federalism” spoke at Auraria Oct. 6 on this ballot measure and made his case for why the current method of choosing presidents should not change, at least not to the way Amendment 36 proposes.
He said if Colorado passes this amendment, the impact of having nine electoral votes would be reduced to just one for each candidate should the turnout of the election be around 48 to 52 percent (5 votes to the majority winner and 4 votes to the latter).
“So, Colorado would be reduced to nothing and states like New York (31 electoral votes) would have more pull,” when selecting the nation’s president, Hardaway said.
“Some of these proposals will pass, some will fail, but what would be the result? A mishmash of non-uniform electoral regulations ... it would be a disaster as far as I can see it,” Hardaway said.
Forty-eight states use the electoral voting system, in which all of their electoral votes go to the state’s overall popular vote winner. Only Maine (four electoral votes) and Nebraska (five electoral votes) diverge from this and have each of their two U.S. Senate electoral votes go to the statewide winner and one to the winner in each of those state’s congressional districts. There are a total of 538 electoral votes possible in electing the nation’s president, a majority of 270 is required to declare a winner.
Metro political science professor Norm Proviser said if Colorado should decide electoral votes based on the proportional statewide popular vote, the electoral votes would be similar to the scenario Hardaway gave, thus giving Colorado one vote per candidate.
Opposition to the amendment agree with this analysis and say presidential candidates will avoid the state because the potential return on their investment is too low.
“I thought he did a good job exploring the role played by the Electoral College and political system and the less-than-appetizing situations that could arise if Amendment 36 passes,” Proviser said.
“Hardaway’s presentation was well thought out. Change produces other change; favor the amendment or oppose it, one needs to think it through in a systematic sense. Will it have an impact on other electoral systems? Of course it will,” he said.
There are two contradicting constitutional articles that arise from this ballot initiative.
The United States Constitution states, in reference to the Electoral College, that in each state the power is left to the legislature to decide the manner in which the selecting of electorals occurs.
The Colorado constitution states: “The legislative power of the state shall be vested in the general assembly consisting of a senate and house of representatives…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 way I read that saying (is) people can propose laws just like the legislature can. But is that the same thing as saying that the unelected citizens of Colorado in fact constitute the general assembly?” Hardaway said.
“It opens it up for all kinds of legal action should it pass—is this initiative acting like a legislature and then there are constitutional questions; is it retroactive and it is occurring at the same time as the voting—potentially it would be a legal quagmire,” Proviser said.
Hardaway said, referring to the ballot initiatives language, that the unelected citizens of Colorado are acting as the general assembly. “All right, you can buy that or not, but the problem I have with that is the whole premise of duties,” he said.
“The problem is, the vote will have to be litigated and if the election is close—within two or three electoral votes—the Colorado Supreme Court will have to interpret what those words mean under Colorado Constitution, and then the Colorado Supreme Court will select the next President of the United States,” Hardaway said.
Because the wording in Colorado’s constitution has never been contested in reference to citizen initiative regarding the Electoral College, the Colorado Supreme Court would look at this as a case of first impression because no case law exists on a situation like this.
“Usually, a measure like this is done through the legislature. You can’t do it by referendum by popular vote on this issue. Other states don’t do this by referendum because they know it’s unconstitutional.”
District 34 State Senator Paula Sandoval said there are two ways in which a measure for citizen vote makes it to the ballot: 1) Referred measure where through referendum the legislature votes on it or 2) citizen initiative where whoever is proposing it is required to get the a certain amount of signatures for it to make it to the ballot without interference from the legislature.
She said there are both pros and cons to this process.
“Through referendum it gives the legislative body a chance to work with the language and allows for a course of discussion and debate,” Sandoval said. “The initiative way, a group of citizens craft the language and the impact of the initiative wouldn’t be realized until after it is passed,”
At that point, she said the spindoctors can take over and all of the responsibility falls on the voter and they are sometimes pressured to make a decision.
Sandoval referenced a citizen initiative that made it to ballot and thus was passed by majority vote in 1992, the Tax Payer Bill of Rights.
The time when it passed, state revenues where at an all time high. This amendment forces the state government to refund surpluses. Since 2001, revenues went down, drastic cuts occurred and Amendment 23 came into play draining and dramatically altering the state budget.
“My impression when they voted on TABOR, backers were not really aware of the ramifications, you can’t pass a tax into a vote of the people. Today when I talk to people they say ‘I didn’t’ realize that,’” Sandoval said.
Sandoval supports the ability for citizens to bring about initiatives but feels that some precautions should be put in place when those initiatives pass.
“If the legislature can’t agree on something, then by having our constitution allow the citizens to by pass the legislature and get a measure to the ballot for the people to vote on is a positive thing,” she said.
She said a downside to that is consequently the citizen initiative is loaded with things that go into the constitution altering it is very difficult.
The state legislature has to power to alter statues but cannot alter amendments.
I don’t like the fact that a lot of groups want to change the constitution, but that being the case we should have safeguards in place that it the initiative passes, altering it could happen within a certain time frame or under certain conditions.”
She said it should be made easier for a citizen initiative to be changed and harder for statures to be changed.
“If power is taken from the legislature, we can’t really respond efficiently to what’s going in the current day,” Sandoval said.
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