The Washington Post offers Colorado Initiative Could Be Key to Presidential Race, mentioning the potential Article II challenge that might be mounted should the presidency hang in the balance over Colorado’s initiative to change the way its electoral votes are allocated (from winner take all to proportionally). I presented some earlier legal analysis of this issue in this post, which also links to my Los Angeles Times oped on the subject from earlier this week.
A few more thoughts now. First, responding to this hypothetical, my colleague Karl Manheim writes:

Doesn’t this happen often with complimentary ballot items? I wouldn’t have voted for Schwarzenegger had I known Davis would actually be recalled. I wouldn’t have voted to limit the state’s ability to borrow had I known the $16B bond would have passed, etc.

This of course is true. The L.A. Times ran a story earlier this week (blogged below) noting that voters voting on two gaming initiatives in California may not know how things will work if both of them pass but one initiative gains more votes than the other.
But does that answer the question whether there is a due process violation?
One further point. I have been saying since Bush v. Gore that whatever legal challenges to an election that can be brought before an election should be brought. And if they are not brought before the election, the legal challenge should be barred by the doctrine of “laches” after the election. Otherwise, people have an “option:” if the election goes the way I like, I don’t raise the legal issue; if it goes the other way, I do. If opponents of Amendment 36 fail to seek pre-election review on Article II grounds before the election, will it be too late? The answer may turn on the extent of pre-election review in Colorado. If it is freely available for such claims, should a challenge be brought now? Indeed, may such a challenge already be barred by laches?