PROPOSED QUESTIONS TO BE CONSIDERED AND ANSWERED BY COLORADO SENATORS PRIOR TO VOTING ON HOUSE BILL 09-1299

(Submitted by undersigned Professors)

 

1. Given that the Colorado Constitution specifically provides that “the electors of the electoral college shall be chosen by direct vote of the people” [Section 20, Colorado Constitution, Schedule], will supporters of House Bill 1299 attach a rider to that bill amending the Colorado Constitution to permit the legislature to select electors other than those chosen by direct vote of the people of Colorado?

 

2.Inasmuch as the House Bill 1299 includes no provision for a national recount in presidential elections, and there currently exists no federal law provision for conducting recounts in close elections, how would the Colorado legislature allocate its electoral votes in close elections in which some, but not necessarily all states are independently conducting recounts according to their own state’s laws and in which the “chief election official” of those states conducting recounts has not certified the popular vote of such state by the First Monday after the second Wednesday in December of an election year due to pending unresolved recounts and court challenges in those states?

 

Illustration: In 1960, media tabulators of the popular vote gave Kennedy a narrow popular vote margin; however, the Congressional Quarterly declared Nixon the popular vote winner by a relative handful of popular votes. To this day, historians can not determine the popular vote winner, since a recount of over 70 million votes in over 42,000 voting districts would have taken years and rendered a different result in each recount. Pierce and Longley’s massive study of Americans elections has concluded that it was “impossible to determine what Kennedy’s vote plurality—if it existed at all—really was. (Emphasis added)

 

Question 2A: In such a scenario, how would the Colorado legislature cast its electoral votes if it was a Koza member?

 

3. Inasmuch as federal law [Title 3, Sec. 3] provides that governor of each state is required to certify the electoral votes of his state, how should the Colorado legislature cast its electoral votes if the “chief election official” (as provided by the Koza scheme) asserts that candidate A has a popular vote lead as of the first Monday after the second Wednesday in December, but the governor asserts that candidate B is actually in the lead for the time being, or asserts that the popular vote can not be determined due to pending recounts in some but not necessarily all of the states?

 

4. If after a presidential election a Koza scheme member state decides to withdraw from the “compact” with other Koza members prior to the time permitted under the Koza scheme (either because it can not determine a popular vote winner in the other states, or its Supreme Court has declared the Koza scheme unconstitutional, or for any other reason), how would the other Koza member states enforce the compact against another state allegedly prematurely withdrawing from the compact?

 

5. If after a presidential election, members of the Colorado legislature believe that election fraud has occurred in other states, or that the closeness of the national popular vote justifies a national recount, how would Colorado go about forcing other non-Koza states to conduct a recount if such a recount would violate the election laws and provisions of those other states? How would it force Koza states to conduct such recounts?

 

6. Given that there is presently no national provision for a nationwide recount of popular votes, nor any federal law authorizing such a recount, how would a national recount of the popular vote in all the states be conducted in cases where the closeness of the popular vote justifies such a recount? (Note: some, but not all states provide for an automatic recount in elections in which the difference in the popular vote is below a certain percentage)

 

7. If the popular vote is so fractured that no one candidate has either a majority or plurality above 20% of the popular vote, what would be the procedure under the Koza scheme for a run-off in order to insure that a candidate receives either a majority or at least a substantial plurality of the popular vote?(note: virtually all countries using a popular vote method—such as Russia—at least provide for a run-off)

 

8. Given that the U.S. Constitution specifically and unambiguously prohibits the states from entering into “any agreement, or compact with another state” [ART I, Sec 10(3)], (with only narrowly drawn judicial exclusions relating to settlement of disputes on mundane matters such as water rights, etc.), and that the Supreme Court has NEVER approved compacts or conspiracies among the states to undermine federalism or reformulate the constitutional process for presidential elections, do the supporters of House Bill 1299 intend to attach a rider to that bill proposing an amendment to the U.S. Constitution to abolish the express prohibition of such compacts and conspiracies?

 

9. How would the legislature best explain to the people of Colorado that the legislature chose to overrule the people’s choice of electors pledged to a particular candidate in elections in which, like in 1960, the popular vote can not be determined—all in violation of the Colorado Constitution?

 

Professor Jim Riley, Professor of Politics

Regis University

 

Professor Robert Hardaway, Professor of Law

University of Denver Sturm College of Law

 

 

If the above questions can not be adequately answered, the undersigned urge consideration of the following ten reasons to vote against HB 1299:

 

 

 

The proposed Compact among states to establish direct election of the President:

 

1. Violates Section 10 of Article I of the U.S. Constitution which specifically states that “no state shall, without the consent of Congress…enter into any Agreement or Compact with another state…”

 

1. Undermines American federalism, and constitute a cynical scheme to illegally subvert Section I, Article II of the “U.S. Constitution which guarantees to every state, not just a favored eleven, a number of electors “equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress:…”

 

1. Cynically by-passes the established amending process set forth in Article V, including the approval of “two thirds of both houses…and the Legislatures of three fourths of the several states…” of any proposed amendment.

 

1. Diminishes the political influence of racial and ethnic minorities in the United States in presidential elections [Ref: testimony of Vernon Jordan, president of the National Urban League at 1979 Congressional Hearings: “Take away the Electoral College and the importance of being black melts away. Blacks, instead of being crucial to victory in major states, simply become 10% of the electorate, with reduced impact”]

 

1. Subverts the “Grand Compromise” entered into by the Founding Fathers at the Constitutional Convention as the basis for federalism and our national union, the two prongs of which were: 1) the equal representation of each state in the Senate along with popular representation in the House, and 2) a number of presidential electors based on the number of representatives to which they were entitled in both the Senate and the House [Ref: statement of Senator John F. Kennedy in 1956 in opposition to a Republican proposal to abolish the Electoral College: “It is not only the unit vote for the presidency we are talking about, but a whole solar system of governmental power. If it is proposed to change the balance of power of one of the elements of the solar system, it is necessary to consider the others.” (In other words, abolishing the U.S. Senate).]

 

 

1. Results in the chronic election of candidates who are supported by only a minority of the popular electorate by weakening the two party system and encouraging encourage splinter parties, eventually generating into a prolonged run-off system under which two minor party candidates enjoying little overall popular support can win the presidency despite being opposed by the vast majority of the electorate.[ Ref: note the 1993 Russian multi-party “popular” vote election in which the electorate came within a whisker of being presented with a “runoff” choice between Fascists and Communists, despite the fact that 80% of the electoral opposed both].

 

1. Compromises the intention of the Founding Fathers that national support for a presidential candidate be broad as well as deep. The need to create concurrent pluralities throughout the United States would be eliminated and replaced by a myopic focus on population centers largely found in coastal areas.

 

1. Dooms the United States to a destabilizing electoral crisis in every election in which the popular vote is close. When the electoral vote is close, as in 2000 (but which occurs only once every hundred years), the recount is isolated to one state. In a so-called “popular vote” election, a recount would be required in every one of 170,000 voting precincts and hamlets nationwide, enormously magnifying crises such as that endured in 2000. After the inevitable multiple lawsuits were filed, every recount would doubtlessly show a different result.

 

1. Wipes out the influence of “swing” states such as Colorado in the presidential election contest, as well as require Colorado to cast its electoral votes in direct opposition to the will expressed by the Colorado voters when the national popular vote plurality was different from that in Colorado.

 

1. Violates the Colorado Constitution (Schedule Provisions, Sec. 20) which mandates that “The general assembly shall provide that after the year eighteen hundred and seventy-­six the electors of the electoral college shall be chosen by direct vote of the people.”

 

For these reasons we urge the defeat of HB 1299.

 

 

Signed:

 

 

Robert M. Hardaway, Professor of Law, University of Denver Sturm College of Law

 

Jim L. Riley, Professor of Politics, Regis University

 

(Note: five additional professors from local colleges and universities signed a document substantially the same as above opposing HB 1299 in 2007; their names are not listed here today because of insufficient time to contact them to verify their continued opposition).