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Colorado’s Electoral Fix Could Bolster House, Not American Voters

Colorado’s Electoral Fix Could Bolster House, Not American Voters It’s the heat of the campaign season — and the Electoral College is once again coming under sustained fire.

In one prominent example, The New York Times published a lead editorial calling for the abolishment of the venerable institution, warning that its “arcane rules” could “create havoc if things go wrong.” An amendment still sits before Congress calling for the college’s abolishment, just the latest of more than 700 proposed amendments in America’s history to reform or do away with the Electoral College.

None of the criticism is new, and, due to the massive effort needed to pass a constitutional amendment, there seems little likelihood of any widespread changes. However, more modest changes to the college can be enacted on a state level — and that may be happening in Colorado.

Colorado has a ballot measure on tap for November that, if it passes, could eventually provide a massive jolt to opponents of the Electoral College, and to the Electoral College itself. In many ways, Colorado’s plan is a reversion to an earlier way of looking at the Electoral College — one fraught with many problems.

The proposal in Colorado would change — retroactive to 2004 — how the state allocates its nine electoral votes, from the current winner-take-all format (sometimes called the “unit rule”) to a divided proportional allocation system.

In the near term, this change could benefit Sen. John Kerry (D-Mass.), who, despite a surprisingly strong showing in the Rocky Mountain State, is still the underdog this year. Even if he loses, Kerry could still pick up a few precious electoral votes. Not surprisingly, the state’s Republican leaders, led by Gov. Bill Owens, are vehemently against this amendment.

Publicly, opponents cite the potential loss of power that Colorado would face if it splits its electoral vote. However, there are other reasons to oppose the amendment. If the states all began removing the winner-take-all standard, it would have a major effect on presidential elections — an effect that can be understood by looking back to the 18th century and our first forays into American democracy.

Even after the national history lesson that was Bush v. Gore in 2000, many voters may be surprised to learn some of the basic decisions concerning the Electoral College are made at the state level.

The U.S. Constitution and the courts are silent on how the states choose and allocate their electoral votes. While all but two states use the winner-take-all system, they are not required to do so. In fact, there are no federal requirements as to the selection method for presidential electors at all. If a state legislature so desires, it can choose the electors and prevent the voters from having any say.

Indeed, this was the case in the early days of the Republic. In more than two-thirds of the states, the selection of the members of the Electoral College — and therefore the state’s choice for president — was made by the state Legislature. We almost witnessed Florida’s legislature making similar acts in 2000. After the democratic ideals fostered by Thomas Jefferson and the follow-through by Andrew Jackson seized the nation, most states quickly moved to allow voters to directly choose their electors. By 1832, every state but South Carolina chose its electors by popular vote.

Similarly, in those early uncertain years, states were split on how the electoral votes should be divvied up. Should it be by individual Congressional districts? By a state legislature dividing up the votes? Or by a state-wide winner-take-all method?

Some of the early electoral pioneers who believed in the smallest governing units possible favored the more localized, district-based distribution. Jefferson, for instance, was a noted proponent.

However, from a political power standpoint, the district plan proved to be a failure. By splitting the vote, the impact of each state’s vote was diluted. Additionally, and perhaps more importantly, the majority party in each state also preferred the unit rule, because they could use it to deliver the entire electoral bounty for their candidate. Jefferson himself benefited from this approach when his native Virginia switched to the unit rule in 1800, when he ran successfully for president.

Throughout the country, state legislative leaders gradually saw the logic of winner-take-all, deciding that they would benefit from a much larger impact if their state could vote all for one candidate. By 1836, all states used the unit rule.

The unit rule has survived many different assaults over the years, though its hold has weakened a little. In recent decades, both Maine and Nebraska have adopted the district plan, though because their districts have always followed the vote of the entire state, there has not yet been any allocation difference.

But Colorado’s plan is a direct attack on the winner-take-all system: The proportional provision will always have an effect on Colorado’s allocation: One candidate will receive five or six votes, and the other three or four.

If this system is instituted on the national level, because of third-party candidates such as Ross Perot or Ralph Nader, elections would not be decided by the Electoral College but could instead be thrown into the House of Representatives.

This would have happened in both 1992 and 2000, had every state used proportional allocation. There have been two instances of the House deciding the election, in 1800 and 1824. Neither one was pleasant for the country.

Whatever problems that the winner-take-all system carries with it, it has proved to be successful in selecting a president — whether it’s a popular-vote winner or not. A proportional system may fail even in this respect.

Joshua Spivak is an attorney, writer and media consultant with the firm Ripp Media.

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