The Washington Monthly

September 14, 2004

A NEW BUSH v. GORE?....On November 2, Coloradans will vote on Amendment 36. If it passes, Colorado's electoral votes for the 2004 election will be split proportionally between the candidates, which means, say, that if George Bush wins Colorado in a squeaker he'll get 5 electoral votes and Kerry will get 4, instead of Bush getting all 9.

Election law expert Rick Hasen has an interesting little op-ed in the LA Times today in which he speculates about the problems that Amendment 36 could cause if the election is close:

We can start with the simplest way that things can go wrong: The vote on Amendment 36 could be very close, and there might need to be a recount of votes, throwing the entire national election into dispute.

Second, opponents of Amendment 36 could go to court claiming that it is unfair and unlawful to apply Amendment 36 retroactively to this election. This argument seems doubtful because there is no unfair surprise here.

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.....

I guess there's no point in looking for trouble, but Hasen is right: if the election is close, a court fight over Amendment 36 could be this year's Bush v. Gore. Wouldn't that be fun?

—Kevin Drum 11:57 AM Permalink | Trackbacks

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