Alternatively, suppose both HI and NH go for Bush, but Colorado votes to apportion its electors. Out of CO’s nine electors, four would probably go to Kerry. The result? Another 269-269 split.
And here’s where things really get scary, as this Politics Blog post (which I’ve linked before) outlines. Specifically, can Colorado vote to change its elector allocation method on the day of the election? On the one hand, the Electoral Count Act of 1878 seems to indicate (in some incredibly dense legalese) that the allocation method must be chosen before election day:
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, … such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution…I say seems to indicate, because this passage may not relate to the electoral allocation method, but to the process for resolving disputes arising from miscounts, voter fraud, etc. Also, the same law says, “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”
Moreover, the portion of the Electoral Count Act that (apparently) says the allocation method should be determined in advance could be declared unconstitutional. Article II, section 1 of the Constitution says, “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” This power of the state legislature to appoint electors cannot be overridden by an act of Congress, so the state of Colorado could insist on using its new allocation method. (There is also a real question as to whether a voter initiative constitutes an act of the “legislature” of the state. A lawyer colleague of mine says the answer is probably “yes.”)
Now, here’s my question. Suppose this case gets litigated and taken to the Supreme Court. Suppose the Supreme Court rules that Colorado can indeed apportion its electors as it pleases. But under such a precedent, couldn’t other states decide to do some Monday-morning quarterbacking as well? Any state whose popular vote went to candidate A, but whose state legislature is controlled by the party of B, would have reason to ditch winner-takes-all in favor of apportionment.
And that’s just one of the many entertaining scenarios that could play out over the next several weeks…