Brady & Sharf: More electoral mischief

Editor: Thwarted repeatedly in the past, progressive zealots in Colorado continue their push for a plebiscitary presidency in defiance of the Founders' wisdom. Here's part of the case for honoring the Constitution with continuing reliance on the Electoral College, from contributors Peg Brady and Joshua Sharf. Why even have elections? By Peg Brady

House Bill 1299’s massive illogic dumbfounds me. As described in the 10 March 2009 Post (Bill “popular” enough to get first panel’s OK), this proposal would require Colorado’s Electoral representatives to ignore Colorado voters’ presidential choice.

Currently, our Electors cast Colorado’s votes for the presidential candidate chosen by the majority of Colorado voters. Thus, in 2012, if most Colorado voters chose candidate A, our state’s Electoral votes would be cast for candidate A. That makes sense.

However, if HB 1299 becomes law, our Electoral votes would be cast for the candidate preferred by voters in other states. Large-population states would control future presidential elections. That may be desirable for them, but it would be disastrous for us.

Reading the arguments debated as the Founding Fathers crafted our superb Constitution reveals their wisdom in establishing the Electoral College. They wanted to ensure that the voters in small-population states would be respected. Because of uneven population distribution, a few states could dominate presidential elections if the Constitution had not protected small-state voters.

To propose throwing away our Electoral safeguard undermines our Constitutional protection.

State Representative Claire Levy supports this dangerous proposal, stating illogically that “…everyone in the state who votes for the candidate who loses Colorado essentially has their vote wiped out.” Conversely, were HB 1299 passed, all Colorado voters would have their votes discarded.

If our Electors were required to ignore our choice and cast our Electoral votes with the national majority, we wouldn’t need to vote at all. The president would be chosen by the large-population East Coast and West Coast states. All the rest of us could just stay home.

I suppose that Colorado could save money by not bothering to hold elections. What would be the point? But I, for one, want my vote counted.


Amendment by minority, compact by whim By Joshua Sharf

Ross Kaminsky, Amy Oliver, and others have blogged locally about about the end-run around the Constitution that is HB1299. I won't bother to repeat their efforts to defend the Electoral College.

What strikes me is the irony of using the Electoral College and the Constitution to undermine them. HB1299 provides that the bill won't take effect until states with a combined Electoral College vote of 270 - enough to elect a President - approve it. The eleven largest states could decide that they want to change how a President is elected, without input from the other states. (In practice, Georgia and Texas, are unlikely to go along with this scheme, so the number of states needed would rise to 14 under current electoral count. Upcoming reapportionment might change it down to 13.) This reverses the Constitutional formula for amending the Constitution, with barely 1/4 of the states able to change things on their own.

When I pointed this out to the last political hack to try this stunt, Ken Gordon, on the air a couple of years ago, he retorted that this was only true because of the Electoral College itself, as those same states could elect a President. Of course, electing a President, who serves for four years, is a far less critical task than changing the Constitution, which changes will likely be with us forever.

The whole maneuver may not even be Constitutional. Article I, Section 10 reads, in part:

No State shall, without the Consent of Congress, ... 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.

There are numerous interstate compacts, dealing with law enforcement, sexual predators, water rights, and other topics. The Supreme Court has ruled that the State needn't get Congressional approval unless the compact would impinge on Federal jurisdiction, which is why it's located in Article I, legislative powers.

However, the Court also ruled that term limits were an additional requirement for office, and that since Congressmen were Federal officers, the states had no power to impose those eligibility requirements. I wonder if one could make a similar argument about electors. I also wonder if a state has the right to apportion its own electors as it chooses, but cannot sign away that right of selection to other states.

All the arguments about this being an urban power grab are true. What's also true is that it's an unholy mess, which because its effects take place catastrophically, rather than as the states adopt it, is likely to sneak up on us and be settled in court, where so many of our issues are decided, rather than in the legislatures, where they ought to be.