How to Make Your Vote Not Count

Todd Gaziano, Tara Ross

October 1, 2004

A group of San Francisco outsiders is trying to change the way electoral votes are cast in Colorado’s presidential elections. But why?

The question arises as a result of the “Make Your Vote Count” campaign now under way in the Rocky Mountain State. Backed by the San Francisco-based “People’s Choice for President” and funded by a liberal California billionaire, 1 the initiative seeks to scrap the state’s traditional winner-take-all system for presidential electoral votes. Instead, it would divvy up Colorado’s nine electoral votes according to each candidate’s percentage of the popular vote.

As most people know who have been following this story, the organizers collected enough signatures to place a referendum on Colorado’s November 2004 ballot. If passed, this referendum supposedly would change Colorado’s laws retroactively for the 2004 election. Instead of the winner-take-all system, Colorado would allocate its nine electoral votes in rough proportion to the popular vote, making Colorado the only state to enact such a method in presidential elections. 2

But, if the move is such a good idea, why make it in Colorado? Why not back home in California, which has the same winner-take-all system?

The answer, of course, is politics. With most Coloradans expected to vote for President Bush this year, liberal activists want to peel off any electoral votes they can for Senator Kerry. And with California strongly for Kerry, they have no interest whatsoever in giving 20-25 of that state’s 55 electoral votes to the Bush. In the high-stakes world of political operatives, what’s good for the goose is not good for the gander.

Coloradans should reject this brazen effort to “game” the electoral process. Destroying the traditional winner-take-all system would effectively marginalize Colorado’s role in future presidential elections. Additionally, the route the outsiders are taking to change the system is flatly unconstitutional.

Winner-Take-All: It’s a Good System

The Constitution provides that each state’s method of choosing electors be determined by the Legislature. In modern times, all legislatures have chosen popular elections for this purpose. All but two states use the “winner-take-all” system, awarding their entire slate of electors to the winner of the popular vote. Maine and Nebraska have a modified system in which some electors are selected based on the overall state winner and some go to the winner of each congressional district.

Electoral College critics argue that the system causes some votes to be “wasted.” Coloradans who voted for Gore in 2000 should have their votes reflected in the national tally, they say. But this argument is disingenuous. Votes are not wasted simply because they are cast on the losing side of an election. Is any vote for governor wasted simply because it wasn’t cast for the winner?

America holds democratic presidential elections at the state level for an important reason: to protect smaller, less populous states. Under a national popular election system, presidential candidates would have precious little reason to focus time and energy on states like Colorado. They would have much more to gain by focusing on the big media and population centers.

This is why almost every state uses the winner-take-all system. It magnifies their electoral voice, forcing presidential candidates to pay attention even to small states. The initiative would have Colorado unilaterally weaken its position among the states. With only one or two net electoral votes at stake, presidential candidates would have little incentive to respond to Colorado’s special concerns or visit the state in future elections.

Obviously, the folks in San Francisco don’t care about that.

The Unconstitutional Initiative

Even if the initiative didn’t threaten to consign Colorado to the sidelines of presidential contests, it merits rejection for the simple reason that it is flatly unconstitutional. There are serious constitutional problems with a proposal that attempts to change the election rules after (or as) the votes are counted, which is what the Colorado referendum purports to do. But that is not the most serious constitutional problem with the referendum.

The Constitution stipulates that presidential electors are to be appointed in “such Manner as the Legislature thereof may direct.” 3 Regardless of the policy arguments for and against a proportional system of casting votes, the authority to decide those arguments rests solely with the Legislature. Yes, states may allow citizens to act as if they were the legislature for any purely state purpose. However, the Constitution requires an actual legislature to perform certain functions as a matter of national law. A state constitution may not delegate these national functions to anyone else or “redefine” its legislature to be the people.

In two unanimous decisions, the Supreme Court struck down an analogous Ohio law. The Ohio Supreme Court believed that Ohio could have any kind of legislature it wanted and that it could substitute the people for the legislature for any purpose. The High Court agreed with this position for state law purposes, but flatly rejected it in most cases when the U.S. Constitution mentioned the legislature. The Framers knew the difference between representative bodies and the people, the Court explained. The word “legislature” meant “deliberative assemblages representative of the people.”

For constitutional purposes, the difference between a representative body and the people is very real. If the referendum passes, the most likely result would be a series of state and federal court challenges, ultimately invalidating the referendum. Proponents of the referendum may argue that state statutory and constitutional provisions make the people equivalent to the legislature when they act through referenda or initiatives. But such state laws cannot override the U.S. Constitution, which is the supreme law of the land. That same Constitution explicitly designates each state’s “Legislature” as the entity with authority to decide the manner of appointing electors, not the “Legislature or such equivalent decision makers as the state shall choose.”

The 2000 election decisions by the Supreme Court reinforced this position, but the clearest reasoning is still from the unanimous rulings in 1920. Speaking to the Ohio plan that would allow the people to act in place of the legislature for certain purposes related to ratifying constitutional amendments, the Court observed that the Founders wrote the constitutional language based upon their wish to “secur[e] deliberation and consideration before any change [to the Constitution] can be proposed.” 4 In short, the Court held, when the Constitution says “the Legislature,” it means “the Legislature.” The Court explained that:

The framers of the Constitution might have adopted a different method. Ratification might have been left to a vote of the people, or to some authority of government other than that selected. The language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed.5

In even simpler terms, however, the Court pointed out what any middle school child should know: a Legislature is a representative body, not the people themselves.

What did the framers of the Constitution mean in requiring [action] by ’Legislatures’? That was not a term of uncertain meaning when incorporated into the Constitution. What it meant when adopted it still means for the purpose of interpretation. A Legislature was then the representative body which made the laws of the people.6

As the Court has explained in later cases, this principle applies to the constitutional process for electing a President just as it applies to the constitutional amendment process. 7

The San Francisco-backed initiative in Colorado is clearly unconstitutional. Election officials should not allow it to be voted on any more than they should allow an initiative to impose slavery to proceed just because its backers collected the required number of signatures. If ballots cannot be reprinted or reformatted at this time, the votes for the unconstitutional referendum simply should not be tabulated. State officials swear an oath to support the Constitution. This requires them to disqualify any clearly unconstitutional initiative. Shame on them if they don’t.

If Colorado wants to weaken its position relative to other states, it has every right to drop the usual winner-take-all-system. But it must do this by going directly through the Legislature in Denver, not via an initiative route mapped out in San Francisco.

1. Valerie Richardson, Group Seeks to Split Colorado Electors, (June 16, 2004), at 20040615-111043-1798r.htm. Return to text.

2. Forty-eight states and the District of Columbia have pure winner-take-all systems. In theory, Maine and Nebraska might split their electoral vote because they select a portion of their electors based on the overall state winner and part by congressional district. But neither Maine nor Nebraska has divided its electoral votes since their systems were first adopted. The Colorado referendum would almost guarantee a split delegation of electors from Colorado, making such a system unique. See e.g., Colorado to Vote on Reform of Winner-Take-All Approach to Electoral Votes, Associated Press, Aug. 17, 2004; John J. Sanko, Voting Reform Reaches Ballot: If Plan Passes, Winner-Take-All System Would End, Rocky Mountain News, Aug. 14, 2004, at 8A. Return to text.

3. See U.S. Const. art. II, § 1, cl.2 (“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.”) (emphasis added). Return to text.

4. Hawke v. Smith, 253 U.S. 221, 226 (1920). Return to text.

5. Id. at 227. Return to text.

6. Id. (second emphasis added). Return to text.

7. See McPherson v. Blacker, 146 U.S. 1 (1892); Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000). Although the Supreme Court recognized one exception to this principle in Smiley v. Holm, 285 U.S. 355 (1932), it carefully reiterated its conclusion that the Legislature means only the Legislature when the U.S. Constitution requires the Legislature to act “as an electoral body,” which is exactly what the Electoral College Clauses require. Return to text.

Todd Gaziano is Director of the Center for Legal and Judicial Studies at The Heritage Foundation in Washington.

Tara Ross is a lawyer in Texas and the author of Enlightened Democracy: The Case for the Electoral College from World Ahead Publications.