Forecast: Colorado Election Storm Heading Our Way

Electoral college faces threat of destruction in November

Amid all the obsessing about what may disrupt the November 2 election—a terrorist attack, a phony terror "alert," computer fraud, voter fraud—the most cataclysmic event may occur inside voting booths in Colorado.

Legal beagle Rick Hasen breaks it down on his (surprisingly) readable and lively Election Law site, which focuses on "the law of politics and the politics of law."

It's creepy enough that states and cities around the country have switched to largely untested electronic voting machines. Check out this September 13 Wall Street Journal roundup on electronic voting. Ominously, oil capital Houston in Bush's home state is one of the cities that has switched to it. (Watch out for that black-white on-off switch.) This story points out that this election "will be the first major test of the technology," and adds:

Detractors say that states haven't had enough time or money to fully implement new federal standards for the machines. As a result, the critics say, the machines are vulnerable to tampering. Although voting equipment has long been subject to abuse, the critics say the electronic machines pose a new set of challenges because much of the software isn't designed to ward off attempts at manipulating an election outcome. They also say the machines are also prone to breakdowns because the technology is so new.

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Then there's voter fraud. For that issue, Hasen points to, among other stories, Jeffrey Toobin's "Poll Position: Is the Justice Department Poised to Stop Voter Fraud—or to keep voters from voting?" in The New Yorker.

But it's Hasen's own op-ed piece in the Los Angeles Times, "Nov. 2 Debacle in the Making," that points out an even newer "nightmare scenario": A Colorado ballot initiative, Amendment 36, asks voters to divide up the state's electoral college votes proportionately, instead of winner-take-all, which 48 states now follow. And the measure directly says that it "is intended to apply retroactively" to the 2004 presidential vote. So if it passes, and the Bush-Kerry vote is close, another courtroom snarl is in the making.

Frighteningly, if Colorado voters approve Amendment 36, and the state's electoral college votes are split, and the Bush-Kerry race is so close (Bush won by only five votes last time) that Colorado's votes matter, the entire national election could all hinge again on the Rehnquistian Supreme Court. Hasen explains it this way:

The most interesting and trickiest legal question has to do with Article II of the Constitution, which allows each state Legislature to set the rules under which electors are chosen and allocated. When the U.S. Supreme Court was considering the 2000 Florida controversy, supporters of Bush argued that the Florida Supreme Court, in extending the deadline for Al Gore to contest the election and later by ordering a recount, had violated Article II. The argument was that the court had usurped the Legislature's power.

In its first decision in the Florida controversy, the Supreme Court suggested that such an argument might be plausible, though it failed to decide the issue conclusively. In the second decision, Bush v. Gore, three justices—Chief Justice William Rehnquist and justices Antonin Scalia and Clarence Thomas—embraced the view that the Florida Supreme Court's actions violated Article II. Dissenting justices argued that the Florida court decision was simply an interpretation of the Legislature's existing rules. There is little doubt that opponents of Amendment 36 will make a similar argument in the Colorado case because the initiative will have been passed by the voters of Colorado and not the Legislature. How will the Supreme Court handle the issue if it arises again?

Wall Street Journal ace John Harwood also weighs in on the Colorado situation in his September 13 story, "Challenge to Electoral College in Colorado Could Have Big Impact." Harwood points out that Republicans "are scrambling to defeat the measure," but that it "enters the election homestretch with a strong edge in public opinion." That's because it's the ol' "one man, one vote" dream. Guess our civics teachers shouldn't have taught us that myth about American democracy. Now we want to actually implement it.

Which may make us kneel once again before Rehnquist, the Cardassian who is Chief Archon of the entire friggin' country. We already know that he follows the "one black, no vote" principle. (See Pittsburgh Post-Gazette columnist Dennis Roddy's December 2000 story about Rehnquist's harassment of minority voters decades ago in Phoenix.) Maybe hunting partners Scalia and Dick Cheney will invite Rehnquist to join them on their next duck-killing trip so they can chat about this while they're reloading and work it all out before the election.

While this all brews, Hasen's site is the place to go. He links to Harwood's and everyone else's coverage of election law and politics. Hasen's not some mindless blogger. He's a young Loyola Law School–Los Angeles professor who just last year wrote The Supreme Court and Election Law, published by NYU Press. He's also the co-author of a casebook on election law and is co-editor of the peer-reviewed Election Law Journal. And he can write about this dense subject, always pointing out the real-world politics between the lines of legalese.

A perusal of Hasen's blog reminds you that it's the small-D democrats who are really in trouble.


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