Don't Mess With Bill

Bill O'Reilly (Oh Really?) commented today that a Colorado ballot initiative to split its electoral votes would be ruled unconstitutional. This is a bit striking. There are really two places where the US Constitution discusses election of President.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. -- US Const. Art. II, Sec. 1, cl. 2.

The second part is the 12th Amendment.

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed...

Maybe I'm missing something, but in all likelihood this is just another example of Oh Really's big head telling him to say something that's just wrong, i.e. if electors are to meet and vote by ballot for President, and if the legislature of a state has final authority on choosing electors, how is it possible that a proportional system would be ruled unconstitutional? The only issue, and this appears in the article, is the fairness of applying the system retroactively to the 2004 election. That's not a problem with the system but when it can take effect, which means it cannot be stricken down as unconstitutional.