I Think I Know How This Would Come Out

A number of people who have written commentary about Bush v. Gore have said that one of the most upsetting aspects of the Supreme Court's decision is the fact that most reasonable people acknowledge it is extremely unlikely, given the prior ideological positions set forth by the majority, that they would have ruled the same way if the positions of Bush and Gore had been switched.

Well, it's possible that we may get to test that this year (not likely, but possible). Here's how.

Colorado has a voter initiative on the ballot this year that would change how its electoral votes are allocated, from a winner-take-all system to a proportional allocation based on a candidate's percentage of the popular vote, with a bonus going to the winner of the state. If the initiative passes on November 2, then it would go into effect immediately, and change how Colorado's electoral votes are allocated in 2004.

So let's say that the initiative passes, and John Kerry wins Colorado, but, as a result of the initiative, Bush is able to garner 4 of Colorado's electoral votes, rather than 0, and Kerry loses 4 of the nine he would have obtained absent the initiative. As a result, let's assume, Kerry only gets 269 electoral votes, instead of 273, and the election is thrown into the House, where Bush voted in by Republican control of a majority of the states.

So Kerry then sues in federal court, making the same argument that Bush made in 2000, and which garnered the votes of Scalia, Thomas and Rehnquist: the voter initiative is unconstitutional because electoral vote allocation schemes can only be established by the legislature, and the voter initiative here was not passed by the legislature, but rather by the Colorado electorate.

Does anybody honestly think that Kerry would get the votes of Scalia, Thomas and Rehnquist?
(They can't even rely on the majority's statement that "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities," since that language only appeared in the majority opinion, not the concurrence.)

- posted by Joshua @ 6:49 PM