XRLQ, among others, discusses the Colorado electoral vote initiative, to be voted on in November, and worries that the retroactivity of the initiative will be a point of challenge if the election is close. Considering that the initiative makes the result clear to all, I agree with xrlq that any challenge will fail, particularly one that claims that the People do not hold the ultimate Legislative power.
However, I strongly object to the underlying initiative. While it probably won't matter if a few states do this (I think two others split the electoral vote by legislative district (a truly bad idea)), if all did this the electoral college's bias towards making a decision would suffer. Strong third-party candidates would get electoral votes. Nader would have got some in 2000, and Perot would have got roughly 100 in 1992.
Worse, weak third-party candidates and roundoff will cause unallocatable votes to accumulate in some states. Don't laugh -- this is a real problem -- in Colorado in 2000 (see study below), there is an unallocatable vote. Nader rounds down to zero, but the majors don't round up to claim it. Who gets it? While the Colorado initiative does have a formula for 2004, it is quite untested.
In a close election these issues could prevent an electoral college majority. In 2000, according to the Ballot Access News study the result would have been:
Bush: 259
Gore: 257
Nader: 7
Votes not allocated by simple rounding: 15
Needed to win: 270
Even assuming you have solved the rounding problem, what happens at the electoral college? Do Nader's people vote for Gore, electing him? Or does it go to Congress, electing Bush? Note that never has the electoral college elected a President who did not go in with a majority. Can they really?
Says who?
What's wrong with allocating electoral votes by legislative district, as ME and NE do? As to your plurality problem, it's a bit tough to say since the relevant portions of Article 2, Section 1 are not in English:
The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President.
The first clause suggests that "majority" means an absolute majority, but then the second would make no sense since there is no way for two candidates to each have an absolute majority of the vote. I suspect that "majority" really means "plurality," but I don't know for sure.
Posted by: Xrlq at September 18, 2004 03:33 PMxrlq--
Apportionment by legislative district: in a word, gerrymanders. It might work in NE or ME, which are hard to gerrymander, but consider Texas or California.
As practiced, it is Majority, not plurality. See the election of 1824, where Andy Jackson had a plurality, but Congress elected JQ Adams. The second sentence can only be interpreted as a two-way tie with no remaining votes, and is really pretty meaningless. Note that under the original formula Jefferson and Burr tied with 73 in 1800, so I think that's what they had in mind.
Still don't know if minority electors can throw their votes to a majority candidate. I think they can, although STATE laws may bind some of them. But it would be contested up to the Supremes.
Posted by: Kevin Murphy at September 19, 2004 10:52 AMGerrymandering does distort the vote some, with a strained vote here and there, but not nearly as much as the winner take all system does. If you think our Congressmen are a skewed representation of the state, imagine how much worse it would be they were elected statewide. Personally, I rather resent the fact that merely by admitting to the U.S. Census that I resided in California in 2000, I have effectively "voted" for Kerry this fall and the Hildebeest (or whoever) four years from now, despite living in one of the staunchest Republican areas in the nation.
As to your last question, I'm almost certain that every elector can vote the way he wants to. If he violates a state law in the process, he can be fined/imprisoned/whatever, but it won't affect the legal validity of the vote he cast. So in your hypothetical, any Nader elector who isn't as stupid as Nader himself would cast his vote for Kerry.
Posted by: Xrlq at September 19, 2004 12:48 PMyupiii
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