Will Proportional EVs in CO Hold up in Courts if Passed?

[tritsofme]

There has been a big buzz surrounding the ballot initiative in Colorado that would allow for the proportional spread of that state's electoral votes.

But my question is that if this iniative passes, will it stand up to constitutional scrutiny by the courts?

It seems to me that the Constitution is pretty clear in Article II Section 1 where it states:
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

Do you think it will be held constitutional if a ballot iniative usurps the power of the Colorado legislature's mandate in the Constituion?

I think this is an interesting idea, but if Colorado's electoral votes become the ones that would put either candidate over the top, I can see this battle becoming very bloody ala Florida.

As was pointed out in another thread, imagine the implications if such an initiative was passed in California...

What do you all think?

[Guaranteed]

1. Well, Maine and Nebraska already do it so I don't see

how the Feds could rule it unconstitutional.

I don't know anything about Colorado's constitution, though.

[tritsofme]

4. That's not what I'm talking about

Clearly states can choose to send their electors in any manner they choose, but the US Constitution gives this choice to the state legislature.

So my question is, would this ballot initiative unconstitutionally strip Colorado's legislature of their rights under Article II Section 1?

[shockingelk]

2. I think the constutution is clear

The requirements are:

- there has to be an election
- the state has to send electors

No only can states send any electors they choose, but the electors can vote any way they choose.

What do I think --> we should have a serious discussion about electing our pres by popular vote.

[tedoll78]

12. Actually..

The Constitution is clear on this:

a state's legislature must decide how to determine electors. Not the people of the state.

[Gaffey Duck]

13. And the State Legislature decided that a referendum on the subject would

be acceptable. :-)

[tedoll78]

15. When did they decide this?

Color me uninformed on that move.. :P

[shockingelk]

17. I imagine ...

CO requires a referendum when they change their constitution.

[St. Jarvitude]

3. Several states used to split electoral votes in the 19th century

For example, in the election of 1824, Andrew Jackson took 2 of Illinois' 3 electoral votes, while John Quincy Adams took the remaining one electoral vote.

[rfrrfrrfr]

5. The question is not

Whether or not a state can split its electoral vote. The question is whether an initiative enacted by the people that bypasses the state legislature, which is what we are talking about here, Is a constitutional method for a state to determine how to apportion its Electoral votes.

There are basically two ways to look at it. First if you literally take the reading of the constitution then it most likely not be constitutional as it is not the legislature making the decision.

The flip side is that in a state that allows the initiative process an argument can be made that since the state has chosen to allow laws to be passed through the initiative process it has ceded some of its decision making authority to the people via the initiative process then the initiative would be valid.

[tedoll78]

14. Bingo.

A plain reading of the Constitution seems pretty clear.. that the legislature is the entity through which this must pass. One would have to engage in some pretty heavy mental and linguistic gymnastics in order to sell the second argument.

[tritsofme]

6. kick

[tritsofme]

7. kick

for an interesting discussion

[Dookus]

8. There's no way to know...

there are compelling arguments on both sides. I really REALLY hope the election won't turn on this issue, because it'll get really ugly.

[sonicx]

9. in my opinion

either ALL states (will never happen) or NO states should do what colorodo is doing.

better yet, just toss the EC (will never happen).

[phish420]

10. First, it probably wont pass

It is looking like Coloradans dont want to be another FL so are turning away from it....
Second, if it does, as mentioned before, if declared unconstitutional, then every election since NE and ME have used this system would be invalidated. The legislature of CO has the authority to determine how the votes are cast, and they have decided to let the voters decide how this years electors are cast. That should e absolutely constitutional.

[tritsofme]

11. But did the legislature allow them to choose?

It has been my understanding that the legislature has shot down this proposal every time it comes before them, and that this iniative is taking place outside of the legislature.

[Dookus]

16. no

the issue is not whether a state can split its electors. they can.

As has been explained here a few times, the issue is whether a REFERENDUM can change the way a state allocates its electors, or whether the LEGISLATURE must do it (which a strict reading of the constitution would imply).