I heard on Caplis & Silverman yesterday that Colorado’s legislature had voted to change the allocation of our electoral votes for president. It is not law yet, but all it takes is for Gov. Bill Ritter to sign it, and then for enough states to “trigger” it into effect. I’ll explain.
The law that was voted and passed by our legislature says that when enough states have passed the same law to create a majority of states that are abiding by the same rules (270 electoral votes), our state will commence to allocate its electoral votes in the next presidential election solely according to the national popular vote. In other words, if a majority of Coloradans vote for one presidential candidate, but the majority of people in the U.S. vote another way, Colorado will throw its support behind the national popular vote winner. Colorado will select the electors of the candidate who has won the national popular vote so they can cast their votes for him or her in the electoral college, in fact ignoring the majority vote of its own residents. The only way this action would agree with the sentiments of Coloradans was if we voted for the same candidates in the same proportion as the nation as a whole.
Five years ago there was a referendum on the ballot that would have allocated Colorado’s electors according to the popular vote in Colorado, divvying it up by congressional district, and having two at large votes. I liked the idea in principle, but the flaw in my opinion was a provision in the referendum that would have made it apply to the 2004 presidential election, right when the referendum was being voted on. I felt that violated the principle of passing no ex post facto laws, because it effectively changed “the rules of the game” after the fact. If I had to pick today between that referendum and this…shall I say…piece of crap, I’d pick the referendum any day of the week, because while I think it was badly crafted it at least had the principle of allocating our votes in a representative fashion for Colorado. The current proposal does nothing of the kind.
This is the first step in getting rid of the electoral college system established by the Founding Fathers of the U.S., which was intended to give electoral powers in presidential elections to individual states so that presidential candidates would be forced to pay attention to individual state interests. It is an element of federalism. It gives small states more power than they would have in a purely majority rule democratic system, and as we saw in 2000, on rare occasion it gives the minority an advantage, a principle that the Founders felt was valuable.
The Founders also felt uncomfortable with the idea of “mob rule”. When the Constitution was ratified the only national offices that were voted on by popular vote in the states were seats in the House of Representatives. Senators were chosen by the state governments. The House was supposed to represent the interests of the citizenry–the vox populi. The Senate was supposed to represent the interests of the states. I realize there have been various rationales put forward for getting rid of the electoral college in the past, but the Founders did not feel comfortable with the popular vote directly electing a president. They wanted an intermediary, electors, who would act on the voters’ behalf, and in their best interests. If for example electors came to know something about a presidential candidate that the public did not, which would impair their abilities in office, they might choose to vote for someone else, even though the voters in their state voted for the candidate. Even though this scenario has never happened to my knowledge, the Founders thought about it. They thought of the presidency as a powerful position in the country, and did not want “the passions of the day” to have an overbearing influence on it.
Beyond the legalistic and historical aspects of this, if this effort succeeds it will further solidify the power of the big cities, the urban areas on the national stage. It will trump the influence of states as their own entities in the presidential election. To name the top 10 population areas: New York City, NY.; Los Angeles, CA.; Chicago, IL.; Houston, TX.; Phoenix, AZ.; Philadelphia, PA.; San Antonio, TX.; San Diego, CA.; and San Jose, CA. What’s long been predicted is that if we do away with the electoral college (which this scheme will effectively do, even if not in fact), the country will dance to the tune of these big cities in future presidential elections, to the exclusion of everyone else. Of the biggest cities in the country, Denver, CO. is #26. In our existing system, Denver tends to dominate Colorado’s electoral vote, because it has a large concentration of the state’s population. In the proposed system Denver will lose that power, because cities like New York City, Los Angeles, and Chicago will relegate Denver’s influence to that of a pipsqueak in the national discussion because its influence will have to be considered among all the other cities in the country, not just in Colorado.
The proponent of the bill, Colorado State House Rep. Andy Kerr, says that he believes in the principle of one man, one vote; and this bill, if it passes in enough states, accomplishes that. What he ignores is the influence of demographics, and that the electoral college system kind of limits demographic influence. A city’s influence is limited by its state boundaries. A collection of big cities doesn’t necessarily dominate the national discussion, because the state system limits their power. They can dominate their respective states, and even in the current system they tend to dominate in presidential elections, because they are the main population centers for their states, and the states they exist in carry a lot of influence. But there’s always the possibility that a collection of smaller, less influential states can act together to blunt their influence, because the electoral college system is not fully representative of a state’s size. Every state, no matter how small, gets at least 3 electoral votes. The proposal on the table does away with all of that.
One thing that interested me as I listened to Caplis & Silverman’s interview with Rep. Kerr on Tuesday was the use of the word “pact”, because the bill has a “trigger”: It only goes into effect when enough states pass the same bill to constitute 270 electoral votes. It is a tacit agreement among the states. From what I heard on the show, four other states have already passed the same bill. It reminded me of something in the Constitution, and I wondered if perhaps a legal case could be made against this proposal:
Section 10, clause 3 of the U.S. Constitution states:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Could this “trigger” provision in the proposal be considered unconstitutional? Any legal scholars want to take this up? I’d be interested in hearing about it. Besides this possibility, there’s nothing technically unconstitutional about what the state is doing. It’s been well established that the states can allocate their electoral votes however they’d like, though it is strange that Colorado would actually choose to throw away what little power it has. It does however violate the spirit of the Constitution. The Constitution is about “We The People”, but it is also about the states and their rights. I just wonder if they’re allowed to do this on a collective basis–“I’ll do it if you do it.”
I just think that the presidential votes of Coloradans should be represented by Colorado’s electoral vote in some fashion. Right now it’s winner-take-all, which is not as representative as I’d like, but it’s at least somewhat representative. I really don’t like the idea of Colorado throwing away its vote.