updated 10/26/2004 3:51:34 PM ET 2004-10-26T19:51:34

A federal judge Tuesday left it up to the voters to decide on Election Day whether to change the way Colorado distributes its electoral votes for president.

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U.S. District Judge Lewis Babcock dismissed a lawsuit that challenged a proposal on next week’s ballot that would alter the Electoral College system in Colorado. He said that it is state issue and not a federal one, and that he lacked jurisdiction.

The measure would scrap Colorado’s winner-take-all system for distributing its nine Electoral College votes. Instead, presidential candidates would be awarded a share of the electoral votes based on their proportion of the popular vote.

The change would begin with this year’s presidential contest — potentially complicating the election if the race between President Bush and John Kerry is close.

Forty-eight states distribute their electoral votes on a winner-take-all basis. The exceptions are Maine and Nebraska, which dole out their votes proportionally, selecting two electors by a statewide vote and the rest according to the winner in each congressional district.

Fort Collins businessman Jason Napolitano argued that the Colorado ballot measure was unconstitutional, saying only the Legislature has the power to change the state’s Electoral College system.

State officials responded that Coloradans should be allowed to vote on the measure before a court decides whether it is constitutional.

Napolitano said he would not appeal, because “I don’t want another Florida.”

A candidate needs 270 of the 538 electoral votes to win the presidency. Each state has one elector for each U.S. representative and senator. California has the most, 55.

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