Colorado Electoral Vote Initiative Retroactivity

[James C. Ho]

"dissent from denial en banc" should read "dissent from denial of cert"
-- apologies for my mistake

-----Original Message-----
From: James C. Ho [mailto:JamesCHo at stanfordalumni.org] 
Sent: Friday, October 29, 2004 9:00 AM
Cc: 'conlawprof at lists.ucla.edu'
Subject: RE: Colorado Electoral Vote Initiative Retroactivity

On the question of whether Article II legislation can be enacted
pursuant to referenda, why doesn't Ohio ex rel. Davis v. Hildebrant, 241
U.S. 565 (1916), definitively resolve the issue, and so in favor of
constitutionality?  (Putting aside, that is, arguments that Hildebrant
was incorrectly decided.)  Note, btw, that Hildebrant is cited in the
dissent from denial en banc authored by the Chief and signed by Scalia
and Thomas in Colorado General Assembly v. Salazar, No. 03-1082.

Apologies if this has already been brought up and I just missed it, as I
am obviously posting this rather late in the thread.

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Bryan Wildenthal
Sent: Wednesday, October 13, 2004 7:10 PM
To: doughr at mail2.udallas.edu
Cc: conlawprof at lists.ucla.edu
Subject: RE: Colorado Electoral Vote Initiative Retroactivity

The idea that "the Legislature," as traditionally understood, could
delegate its legislative power elsewhere, is one possibly reasonable
theory. But it's not quite the basis for my view.

I favor a broader theory -- that a state can define internally, under
its own constitutional structure, what it wants to call "the
Legislature" and how that body ultimately exercises legislative power,
in conjunction with, and/or limited by, other bodies (governor, courts,
people). I think the framers assumed "the Legislature" would probably be
something resembling what they traditionally understood as a
representative legislative body, but even in 1787, such a body was not
free to act in isolation, but was subject to various checks and
balances, e.g., constitutional limits, governor veto, judicial review,
etc. Popular recall, initiative and referendum strike me as reasonable
additional limitations or glosses or supplements on how the
"legislative" power gets exercised, and thus, in a broad cumulative
sense, what constitutes "the Legislature."

I find the Rehnquist Article II theory very cramped and unreasonably
literal in its reading of "the Legislature," and it leads to perverse
results contrary to what is otherwise the thrust of his own
states-rights philosophy, by inviting federal courts to engage in
intrusive second-guessing about the internal structure of state
government (second-guessing with little or no real guidance from the
constitutional text or history).

The Rehnquist theory is not even that persuasive literally. "The
Legislature," literally, is whatever body, however composed or
structured, that exercises lawmaking power. There is no reason, in
strict or literal theory, why the mass of the people cannot, for some or
many purposes, constitute a "Legislature." Mass-democracy town meetings
existed and were known at the time of the founding, and they functioned
as the "Legislature" for many towns.

-----Original Message-----
From: Richard Dougherty [mailto:doughr at udallas.edu]
Sent: Wednesday, October 13, 2004 3:26 PM
To: Bryan Wildenthal
Cc: conlawprof at lists.ucla.edu
Subject: Re: Colorado Electoral Vote Initiative Retroactivity


Bryan:
I agree with you and Mark on this.

I do have a separate question, related to the point you make in regard
to Bush v. Gore (since I'm teaching it again).  Is it your view that
when the Constutution refers to the "state legislature" in this instance
that what it means is whatever the state legislature decides to do is
legitimate, whether it chooses electors itself, has a popular vote, or
allows a popular initiative to select the procedure?  (And a question I
don't know the answer to: is the initiative process in Colorado
established by the legislature?)  I'm not arguing the point, just trying
to ascertain the position.

Thanks,
Richard Dougherty

Bryan Wildenthal wrote:

> I think Mark's conclusion is persuasive.
>
> I (unlike Mark) personally have no doubt that a state's voters could
(with proper timing) act as the "Legislature" to change how a state's
electors are chosen. I.e., I disagree with the Article II theory set
forth in Bush v Gore by Rehnquist, Scalia, and Thomas, which (as I
recall from the Dec. 2000 discussions on ConLawProf, and as I gather
from Mark's present posting) Mark supports (or at least leans toward).
>
> I also tend to think a state's voters could, in theory (at least as
far as the US Constitution and federal law are concerned) make a change
in the state's method of elector selection contemporaneously and
simultaneously with the voters' choice of presidential slate -- i.e.,
both decisions could be resolved together on Nov. 2 without being
improperly retroactive or "un-chusing" the state's electors. For
example, this might work if the Colorado initiative, by its own terms,
became effective immediately on Nov. 2, if it wins a majority.
>
> But I agree, based on what Mark has presented, that the Colorado
initiative simply will not do that. By the time it would take effect,
apparently on Nov. 3, the electors will already have been chosen (on
Nov. 2, as federal law requires) under the pre-existing method set by
Colorado law. That cannot be undone later, neither a day later, nor (as
the Florida Legislature brazenly and improperly came close to doing in
Dec. 2000 by purporting to appoint electors itself) several weeks later,
nor ever. (I think I recall Mark and others arguing that Florida voters
may have failed to make a choice in Nov. 2000, thus allowing what I view
as the Florida Leg's attempt at a post hoc hijack, but I guess we don't
need to rehash all that again.)
>
> Anyway, I kind of like the fact that Mark (who I assume supports
President Bush) and I (a declared Kerry partisan) agree that
(apparently) Colorado cannot change from the winner-take-all system in
time to affect this election. Because we now stand ex ante the election,
we have no way of knowing whether this stance will be crucially
favorable to the political fortunes of either Bush or Kerry (possibly
neither). I personally am glad winner-take-all should (apparently) apply
this year regardless of the vote on the Colorado referendum, because I
hold out hope that Kerry will win a majority in Colorado, and thus all 9
electoral votes. I am willing to take the risk that Bush might win them
all.
>
> How about other con law profs similarly taking a stand ex ante, before
knowing which position will benefit the academic's preferred political
choice?
>
> Bryan Wildenthal
> Thomas Jefferson School of Law
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Scarberry, Mark
> Sent: Tuesday, October 12, 2004 2:36 PM
> To: conlawprof at lists.ucla.edu
> Subject: Colorado Electoral Vote Initiative Retroactivity
>
> Of course there has been discussion of whether Colorado's voters may
act as
> the state's "Legislature" under U.S. Const. Art. II, sec. 1, cl. 2.
Only if
> so may the voters change by initiative the manner of selection of
> presidential electors. I think it is doubtful (at least) whether they
may do
> so. But the question whether the initiative may be applied to the 2004
> choice of electors does not seem to me to be a close question at all.
>
> The initiative would add a new section 13 to Article VII of the
Colorado
> Constitution. Section 13 would provide for proportional division of
> presidential electors. The initiative states explicitly that "This
section
> [i.e., section 13] shall be effective on and after November 3, 2004."
See
> numbered paragraph (9) of the initiative, the text of which may be
found at
> http://www.lawanddemocracy.org/amend36.html. (One of my students, who
> happens to be the proprietor of http://politics.blogs.com, surprised
me by
> telling me that the initiative had an explicit Nov. 3 effective date,
and
> the text bears him out.)
>
> The initiative does provide that it is intended to have retroactive
effect
> so as to apply to the election held on November 2. But I believe it
cannot
> have that effect. Article II, sec. 1, cl. 4 provides that "The
Congress may
> determine the Time of chusing the Electors ... ." Congress has done so
in 3
> U.S.C. section 1:
>
> "The electors of President and Vice President shall be appointed, in
each
> State, on the Tuesday next after the first Monday in November, in
every
> fourth year succeeding every election of a President and Vice
President."
>
> Thus Colorado must "chuse" its electors on November 2. Colorado will
do so
> by vote of its people on November 2. The choice will be made under the
> existing "winner take all" approach, which will still be in effect on
that
> date even if the initiative passes. The state could only choose
electors
> after November 2 if there was a failure to choose them on November 2
(see 3
> U.S.C. section 2) or if an elector position becomes vacant (see 3
U.S.C.
> section 4).
>
> By its terms, the new section 13 added by the initiative (if it
passes)
> would not go into effect until November 3. The only way it could be
given
> effect for this election would be for it to have the effect of
"un-chusing"
> the electors that were chosen on November 2 and replacing them after
that
> date with new electors. The federal statute, enacted pursuant to Art.
II,
> sec. 1, cl. 4, does not permit that.
>
> Perhaps there is a feature of the Colorado Constitution providing that
> initiative measures cannot go into effect until the day after an
election.
> Otherwise I don't understand why the initiative drafters would have
drafted
> it with a November 3 effective date. But in any event, that is the
effective
> date, and I do not see how it can be given retroactive effect without
> violating federal law.
>
> Am I missing something?
>
> Mark S. Scarberry
> Pepperdine University School of Law
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