October 26, 2004
By Todd F. Gaziano and Tara Ross
A group of
San Francisco outsiders is trying to change the way electoral votes
are cast in Colorado's presidential elections. But why?
arises as a result of the "Make Your Vote Count" campaign now under
way in the Rocky Mountain State. Backed by the San Francisco-based
"People's Choice for President" and funded by a liberal California
billionaire, the initiative
seeks to scrap the state's traditional winner-take-all system for
presidential electoral votes. Instead, it would divvy up Colorado's
nine electoral votes according to each candidate's percentage of
the popular vote.
people know who have been following this story, the organizers
collected enough signatures to place a referendum on Colorado's
November 2004 ballot. If passed, this referendum
supposedly would change Colorado's laws retroactively for the 2004
election. Instead of the winner-take-all system, Colorado
would allocate its nine electoral votes in rough proportion to the
popular vote, making Colorado the only state to enact such a method
in presidential elections.
But, if the
move is such a good idea, why make it in Colorado? Why not back
home in California, which has the same winner-take-all
of course, is politics. With most Coloradans expected to vote for
President Bush this year, liberal activists want to peel off any
electoral votes they can for Senator Kerry. And with California
strongly for Kerry, they have no interest whatsoever in giving
20-25 of that state's 55 electoral votes to the Bush. In the
high-stakes world of political operatives, what's good for the
goose is not good for the gander.
should reject this brazen effort to "game" the electoral process.
Destroying the traditional winner-take-all system would effectively
marginalize Colorado's role in future presidential elections.
Additionally, the route the outsiders are taking to change the
system is flatly unconstitutional.
Winner-Take-All: It's a Good System
Constitution provides that each state's method of choosing electors
be determined by the Legislature. In modern times, all legislatures
have chosen popular elections for this purpose. All but two states
use the "winner-take-all" system, awarding their entire slate of
electors to the winner of the popular vote. Maine and
Nebraska have a modified system in which some electors are selected
based on the overall state winner and some go to the winner of each
College critics argue that the system causes some votes to be
"wasted." Coloradans who voted for Gore in 2000 should have their
votes reflected in the national tally, they say. But this argument
is disingenuous. Votes are not wasted simply because they are cast
on the losing side of an election. Is any vote for governor wasted
simply because it wasn't cast for the winner?
democratic presidential elections at the state level for an
important reason: to protect smaller, less populous states. Under a
national popular election system, presidential candidates
would have precious little reason to focus time and energy on
states like Colorado. They would have much more to gain by focusing
on the big media and population centers.
This is why
almost every state uses the winner-take-all system. It magnifies
their electoral voice, forcing presidential candidates to pay
attention even to small states. The initiative would have Colorado
unilaterally weaken its position among the states. With only one or
two net electoral votes at stake, presidential candidates would
have little incentive to respond to Colorado's special concerns or
visit the state in future elections.
the folks in San Francisco don't care about that.
The Unconstitutional Initiative
Even if the initiative didn't threaten to
consign Colorado to the sidelines of presidential contests, it
merits rejection for the simple reason that it is flatly
unconstitutional. There are serious constitutional problems with a
proposal that attempts to change the election rules after (or as)
the votes are counted, which is what the Colorado referendum
purports to do. But that is not the most serious
constitutional problem with the referendum.
Constitution stipulates that presidential electors are to be
appointed in "such Manner as the Legislature thereof may direct." Regardless of the policy arguments
for and against a proportional system of casting votes, the
authority to decide those arguments rests solely with the
Legislature. Yes, states may allow citizens to act as if they
were the legislature for any purely state purpose. However, the
Constitution requires an actual legislature to perform
certain functions as a matter of national law. A state constitution
may not delegate these national functions to anyone else or
"redefine" its legislature to be the people.
unanimous decisions, the Supreme Court struck down an analogous
Ohio law. The Ohio Supreme Court believed that Ohio could have any
kind of legislature it wanted and that it could substitute the
people for the legislature for any purpose. The High Court agreed
with this position for state law purposes, but flatly rejected it
in most cases when the U.S. Constitution mentioned the legislature.
The Framers knew the difference between representative bodies and
the people, the Court explained. The word "legislature" meant
"deliberative assemblages representative of the people."
constitutional purposes, the difference between a representative
body and the people is very real. If the referendum passes, the
most likely result would be a series of state and federal court
challenges, ultimately invalidating the referendum. Proponents of
the referendum may argue that state statutory and constitutional
provisions make the people equivalent to the legislature when they
act through referenda or initiatives. But such state laws cannot
override the U.S. Constitution, which is the supreme law of the
land. That same Constitution explicitly designates each state's
"Legislature" as the entity with authority to decide the manner of
appointing electors, not the "Legislature or such equivalent
decision makers as the state shall choose."
election decisions by the Supreme Court reinforced this position,
but the clearest reasoning is still from the unanimous rulings in
1920. Speaking to the Ohio plan that would allow the people
to act in place of the legislature for certain purposes related to
ratifying constitutional amendments, the Court observed that the
Founders wrote the constitutional language based upon their wish to
"secur[e] deliberation and consideration before any change [to the
Constitution] can be proposed."
In short, the Court held, when the Constitution says "the
Legislature," it means "the Legislature." The Court explained
of the Constitution might have adopted a different method.
Ratification might have been left to a vote of the people, or to
some authority of government other than that selected. The language
of the article is plain, and admits of no doubt in its
interpretation. It is not the function of courts or legislative
bodies, national or state, to alter the method which the
Constitution has fixed.
simpler terms, however, the Court pointed out what any middle
school child should know: a Legislature is a representative body,
not the people themselves.
What did the
framers of the Constitution mean in requiring [action] by
'Legislatures'? That was not a term of uncertain meaning
when incorporated into the Constitution. What it meant when adopted
it still means for the purpose of interpretation. A Legislature was
then the representative body which made the laws of the
As the Court
has explained in later cases, this principle applies to the
constitutional process for electing a President just as it applies
to the constitutional amendment process.
Francisco-backed initiative in Colorado is clearly
unconstitutional. Election officials should not allow it to be
voted on any more than they should allow an initiative to impose
slavery to proceed just because its backers collected the required
number of signatures. If ballots cannot be reprinted or reformatted
at this time, the votes for the unconstitutional referendum simply
should not be tabulated. State officials swear an oath to
support the Constitution. This requires them to disqualify any
clearly unconstitutional initiative. Shame on them if they
If Colorado wants to weaken its position
relative to other states, it has every right to drop the usual
winner-take-all-system. But it must do this by going directly
through the Legislature in Denver, not via an initiative route
mapped out in San Francisco.
Gaziano is Director of the Center for Legal and Judicial Studies at
The Heritage Foundation in Washington. Tara Ross is a lawyer
in Texas and the author of Enlightened Democracy: The Case for the
Electoral College from World Ahead Publications.
Tara Ross is a lawyer in Texas and the author of Enlightened
Democracy: The Case for the Electoral College from World Ahead
Richardson, Group Seeks to Split Colorado Electors,
WashingtonTimes.com (June 16, 2004), at http://www.washingtontimes.com/national/
states and the District of Columbia have pure winner-take-all
systems. In theory, Maine and Nebraska might split their electoral
vote because they select a portion of their electors based on the
overall state winner and part by congressional district. But
neither Maine nor Nebraska has divided its electoral votes since
their systems were first adopted. The Colorado referendum would
almost guarantee a split delegation of electors from Colorado,
making such a system unique. See e.g., Colorado to Vote on
Reform of Winner-Take-All Approach to Electoral Votes,
Associated Press, Aug. 17, 2004; John J. Sanko, Voting Reform
Reaches Ballot: If Plan Passes, Winner-Take-All System Would
End, Rocky Mountain News, Aug. 14, 2004, at 8A.
. See U.S.
Const. art. II, § 1, cl.2 ("Each State shall appoint, in
such Manner as the Legislature thereof may direct, a Number of
Electors, equal to the whole Number of Senators and Representatives
to which the State may be entitled in the Congress.") (emphasis
. Hawke v.
Smith, 253 U.S. 221, 226 (1920).
. Id. at
(second emphasis added).
McPherson v Blacker, 146 U.S. 1 (1892); Bush v. Palm
Beach County Canvassing Bd., 531 U.S. 70 (2000). Although the
Supreme Court recognized one exception to this principle in
Smiley v. Holm, 285 U.S. 355 (1932), it carefully reiterated
its conclusion that the Legislature means only the Legislature when
the U.S. Constitution requires the Legislature to act "as an
electoral body," which is exactly what the Electoral College
First appeared on http://www.ashbrook.org
A group of San Francisco outsiders is trying to change the way electoral votes are cast in Colorado's presidential elections. But why?
Todd F. Gaziano
Director, Center for Legal & Judicial Studies
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