September 14, 2004

Will Colorado's Electoral College Initiative End Up at the Supreme Court?

I have written an oped, Nov. 2 Debacle in the Making, for today's Los Angeles Times. Here is some additional analysis on the Article II issue that did not make it into the newspaper:

No doubt, opponents of Amendment 36 will argue that the initiative, a piece of legislation to be passed by the voters of Colorado and not the Colorado Legislature, likewise violates Article II. There is a 1916 Supreme Court case out of Ohio (though somewhat challenged in a 1920 case) interpreting the word “Legislature” to include the initiated legislation, which would seem to preclude an Article II challenge to Amendment II.
But the 1916 authority predates the revival of the Article II argument by at least three members of the Supreme Court in the Florida controversy. How would the Supreme Court handle the issue if it arises, again in the context of a disputed presidential election where time will necessarily be of the essence?
Just last June, Rehnquist, Scalia, and Thomas had a chance to write about this issue yet again, in a case, ironically, emanating from Colorado. The question before the Court was whether the Colorado Supreme Court usurped the power of the Colorado Legislature to set the terms for congressional elections by ruling that the Colorado Constitution permits redistricting only once per decade.
A majority of the Supreme Court declined to hear the case, but the Chief Justice, and Justices Scalia and Thomas embraced their theory from Bush v. Gore and voted to hear the case. And along the way, the Justices distinguished that 1916 case, finding Colorado’s system of legislative power to be different from Ohio’s.
Would at least two other Justices be willing to consider finding Amendment 36 a violation of Article II, in the context of deciding yet another presidential election? There is no way to tell. One hopeful sign, for those who do not want to see Supreme Court intervention again so soon and so prominently, is that the Court declined to hear a similar challenge a few years back, when the New Jersey Supreme Court held that Democrats could replace the name of Robert Torricelli on the ballot with Frank Lautenberg, after Torricelli withdrew close to election day.

Posted by Rick Hasen at September 14, 2004 06:30 AM