Posted by Eugene Volokh:
Colorado elector-splitting proposal
might swing the outcome of the Presidential election -- and might
yield yet another controversial post-election lawsuit. Lawprof
[1]Peter Shane has a detailed piece on this; here's an excerpt:
On August 2, 2004, the Colorado Secretary of State approved for
inclusion on the November, 2004 state ballot a measure that would
revise Colorado's allocation of electoral votes. Under the proposed
measure, Colorado would become the first and only state to allocate
its electoral votes proportionately among the Presidential
candidates. Maine and Nebraska, the only states that currently
depart from the winner-take-all unit rule, allocate an elector to
the victor in each congressional district, with a bonus of two
additional electors going to the plurality winner of the overall
state vote. Under the terms of the Colorado initiative, the new
rules would, if approved, take effect with the casting of electoral
votes in the 2004 election.
Championed chiefly by Colorado Democrats, this initiative -- if
approved and upheld -- could well be enough to swing the
presidential election. Colorado is currently rated in the
independent Cook Political Report as "leaning Bush." If the state's
nine electoral votes, however, split 5-4 with Bush over Kerry,
Bush's Colorado victory might be insufficient to offset Kerry
victories in the winner-take-all states. For example, had the
initiative been enacted prior to the 2000 Election, Al Gore would
presumably now be running for re-election.
Of course, there is no way of guaranteeing what the impact of a
Colorado change might be. Senator Kerry might actually win Colorado
outright, but lose in Oregon -- a current "leans Kerry" state with
a 7 electoral vote prize. Under such a scenario, limiting Kerry's
Colorado electoral vote edge to a single vote might swing the
election to Bush. . . .
Go [2]here for more analysis, including a brief discussion of some of
the legal objections that could be raised to this.
Coloradans who are interested in maximizing the power of Colorado, by
the way, should certainly vote against the proposal: By making the
likely swing in the Colorado vote just 1 elector (5-4 vs. 4-5, which
would be the case so long as each candidate gets over 3.5/9=roughly
39% of the vote), it will make candidates pay almost as little
attention to Colorado as they do to the states whose outcome is a
foregone conclusion. Under the current system, though, if Colorado is
at all close, the potential swing would be 9 electors, which is pretty
significant.
Of course, Coloradans could also vote from a perspective of maximizing
the likely success of their preferred presidential candidate, in which
case pro-Kerry voters should vote yes and pro-Bush voters no. Finally,
Coloradans could vote from a perspective of what's the theoretically
morally right answer -- but I agree with Prof. Shane that even if this
is a sensible question to ask on the national level, I doubt that it
makes sense on the state level, since whatever one thinks is the
theoretically best result, having one state change its views won't
really bring us closer to that result (except insofar as the state can
start a cascade among other states, but I doubt that this will
happen).
Naturally, all this supposes that voters are thinking "How should I
vote assuming my vote will make a difference" -- a not uncontroversial
position, given that the chances of any particular vote making a
difference are vanishingly small, but I don't want to get into that
debate again now.
References
1. http://moritzlaw.osu.edu/electionlaw/elections_pres10.html
2. http://moritzlaw.osu.edu/electionlaw/elections_pres10.html
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