COLORADO HOUSE PLAN WOULD UNDERMINE FEDERALISM, CONSTITUTIONAL PROCESS FOR ELECTING PRESIDENT

 

Robert Hardaway

 

Imagine that in the last presidential election when voters of Colorado voted for presidential electors pledged to Obama, that the Colorado legislature decided to disregard the will of Colorado voters and instead cast Colorado’s electoral votes in favor of McCain?

This is how the so-called “Koza” plan will play out in future elections if the members of the Colorado House have their way.

If this ill-advised plan is adopted by the Senate, it plan would pledge Colorado to conspire with as few as ten other states to cut all other states from the electoral process set forth in the U.S. Constitution by requiring the conspiring states to disregard the will of the people in their state in favor of a popular vote plurality winner in the other states.

Had such a scheme been in place in the 1960 election, we would not know to this day who was elected president. According to the Congressional Quarterly, Nixon won the popular vote by a relative handful of popular votes. Despite the incredibly lose popular vote, however, Nixon did not request a recount because Kennedy had won an overwhelming majority of electoral votes. Had a Koza plan been in place, however, Nixon would surely have requested a recount, which would have required a recount in over forty two thousand separate voting districts and hamlets across the entire country. With many tens of millions of popular votes to be counted, every recount would have given a different result, and the resulting court cases and challenges in each and every state would have created a constitutional crisis of unparalleled proportions—if the Republic could have survived such a crisis at all.

Close votes in the Electoral College, however have occurred only twice in American history in 1876 and 2000. In 2000, the Electoral College saved the day by isolating the recounts to a single state. Under Koza, the trauma of 2000—complete with court cases and challenges– would have been magnified by a factor of 50 if the popular vote was close, since recounts would have been required in all 50 states.

At the Constitutional Convention of 1787, the Founding Fathers rejected the suggestion that the legislature should elect the president (as is done by all the parliamentary democracies in the world) on grounds that such an election would undermine the separation of powers by making the president “beholden” to the legislature. It was the genius of the Founding Fathers to create a parallel congress,–ultimately to be elected by the people by popular vote– who would have the sole function of electing the president. Today we know it by the name of the Electoral College.

It was the second prong of the “Grand Compromise” which brought together both the small and the large states of the union (the first prong being the creation of the U.S. Senate based on equal representation of the states).

Like all parliamentary democracies, it is possible every hundred years or so, for the number of electors to not correspond exactly with the poplar vote. Indeed, this occurred in Great Britain in 1974, when labor lost the popular vote by one percentage vote, but elected three more members of parliament and formed the government.

If the “Koza” people are sincere about establishing the “one person, one vote”, they should first attack the first prong of the Grand Compromise and move to abolish the U.S. Senate.

But as John F. Kennedy noted in 1956 in defending federalism and the Electoral College against Republican onslaughts to abolish it, “If it is proposed to change the balance of power of one of the elements of the solar system of government power (such as the Electoral College)…it is necessary to consider the other (such as the U.S. Senate).”

In 1979 it fell upon minorities to defend the Electoral College. As Vernon Jordan made the point in defending the Electoral College against Republican efforts to abolish it: “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.”

Although the Koza people surely know that the Constitution forbids any conspiracies between states to tamper with the U.S. Constitutional process of electing a president, the very attempt to undermine federalism and the rights of minorities should nevertheless be steadfastly resisted by the state Senate.

 

Robert Hardaway is Professor of Law at the University of Denver Sturm College of Law, and author of the much cited book, “The Electoral College and the Constitution: The Case for Preserving Federalism” (Greenwood Press).