Colo. referendum could make election a bit rocky

WASHINGTON -- While much of the political world is worrying about touch-screen voting and its lack of a paper trail, the greater threat of electoral chaos may come from the Electoral College. That's where states matriculate this December to register their electoral votes.

Colorado, which hasn't been at the center of national politics since favorite son Gary Hart got caught fooling around on the Monkey Business in 1988, is threatening to apply some Rocky Mountain high jinks to an already volatile electoral mix.

A voter-generated referendum proposes to divide Colorado's nine electoral votes by percentage of popular vote rather than winner-take-all. This change could swing this year's election and -- here's the scary part -- perhaps motivate other states to try to change their own ways of apportioning electoral votes after the Nov. 2 results are in.

The Colorado proposal is, in many respects, a rational response to the 2000 election, in which all of Florida's electoral votes went to the winner of a Supreme Court-shortened recount. If Florida had allotted its 25 electoral votes based on the percentage of the popular vote rather than giving the whole electoral haul to the winner, a few improperly punched cards would have made hardly any difference at all.

But in seeking to improve the system, Colorado may be opening Pandora's ballot box.

Under the current system, 48 states plus the District of Columbia allocate all their electoral votes to the winner of that state or district's popular vote. Meanwhile, two states -- Maine and Nebraska -- give two of their electoral votes to the statewide winner and one to the winner of the presidential tally in each congressional district.

Despite its quirks, the Electoral College did not differ from the popular vote for president between 1888 and 2000 -- a 112-year period during which the United States grew from a boisterous federation of states into the world's only superpower.

But 2000 reestablished the fact that the presidency doesn't go to the person who garners the most votes nationally, but the person who gathers the most votes in the Electoral College.

Usually it's the same person -- but not in 2000, when Al Gore beat George W. Bush by 543,895 popular votes but lost the Electoral College.

Thus, 2004 has brought heightened attention to the electoral map, with campaigning confined to a dozen or so "swing" states, with both parties assuming that most electoral votes are already in the bag (Texas for Bush, California for John Kerry, etc.)

But Colorado's referendum could rip open the bag. Here's how: Suppose that all the states line up the way they did in 2000 except that Kerry wins next-door New Hampshire, which went narrowly for Bush in 2000, and economically struggling West Virginia, which usually backs Democrats but opted for Bush in 2000.

Given changes in state population, these small shifts wouldn't be enough to wrest the presidency from Bush -- unless Colorado divided its electoral votes by percentage rather than winner-take-all. Even if Kerry were swept away in a landslide in Colorado, he'd poll enough popular votes to take at least one electoral vote out of Bush's column -- and win the presidency.

If that happens -- or, for that matter, if Kerry wins Colorado but Bush benefits from a proportional split -- expect an immediate court challenge and a passionate attempt to override the referendum in the Colorado Legislature, which is dominated by Republicans.

And there's nothing to prevent legislators in another state -- say, Pennsylvania, which tends to favor Democratic presidential candidates but has a Republican majority in both houses of the Legislature -- from trying to divide votes by percentage, too, to offset any change in the result caused by Colorado's shift.

The idea of a state legislator trying to change the system of apportioning electors after a presidential vote is inherently suspect and almost certainly illegal, but it isn't far-fetched.

In the heat of 2000, some Republican leaders of the Florida Legislature vowed to send a pro-Bush slate to the Electoral College even if Gore prevailed in the recount. The US Supreme Court obviated any need by halting the count with Bush ahead by 547 votes.

If any state tried to change its electoral votes after the election, the full orchestra of political crisis would start playing: legislators thundering, governors ordering, state judges opining, state supreme courts decreeing. Ultimately, the US Supreme Court would again be called upon to stop the music.

But how far would the court go in deciding election laws? Until 2000, there was considerable sentiment to let states sort it out on their own. Still, Bush v. Gore introduced the idea that candidates have a right to consistent standards, and the court would probably be obliged to block any after-the-fact attempts to change state rules by partisans in the legislature. However, the court would have a hard time overturning the preference of Colorado voters in how to spread their electoral votes.

Then again, seasoned court watchers did not expect the Supreme Court to intervene so forcefully in 2000. One lesson of the last presidential election is that it's hard to predict the Supreme Court. Another is it's hard to predict the electorate, as well.

Peter S. Canellos is the Globe's Washington bureau chief. National Perspectives is his weekly analysis of events in the capital and beyond.