Democrats, Don’t Freak Out!
Why fears that Republicans will gerrymander the Electoral College are overblown.
Photo by Mark Wilson/Getty Images
Sound the alarm! Democrats are on high alert! Josh Marshall calls it a big, big deal. Eric Kleefeld says if the blueprint were in place last November, the GOP would have “stolen 2012 for Mitt Romney.” Steve Benen of the Maddow Blog calls it a “democracy-crushing scheme” showing that “the will of the voters and the consent of the governed are now antiquated concepts that Republicans no longer value.”
They’re all talking about potential plans to change the method for electing the president in states like Virginia, Wisconsin, and Pennsylvania—states that have Republican legislatures and governors but voted for Obama in 2012. Instead of awarding all of the state’s Electoral College votes to the presidential candidate getting the most votes in each of these states, under the proposed plans most of the Electoral College votes would be awarded to the winner in each congressional district—and thanks to Republican gerrymandering of those districts, such a scheme would be a windfall for Republicans.
This plan would be deeply concerning if Republicans were really going to enact it. But the same self-interest that is leading Republicans to consider this move is also going to lead most of them to abandon it almost everywhere. The Great Democratic Freak-out is unjustified. But it is not without its usefulness, because it reminds wavering Republicans what they will face if they go down the road of unilateral Electoral College reform.
Let’s start with the basics. In just about every U.S. election, the candidate who gets the most votes in the general election wins. Presidential elections are, of course, different: Each state gets assigned a number of Electoral College votes equal to the number of representatives and senators from that state. Besides two senators, the number of representatives depends on population, with more populous states getting more members of Congress.
The U.S. Constitution’s Article II gives each state’s legislature the power to set the rules for choosing electors. In most states, the legislature has put in place a rule to give all of the state’s Electoral College votes to the presidential candidate getting the most votes statewide. In Maine and Nebraska, they assign two of their votes to the statewide winner, and the rest by district—the same kind of arrangement under consideration by this new wave of Republican-dominated states.
Article II gives the legislature very broad power to pick the rules for choosing presidential electors. These bodies could even take the right away from the voters and allocate the state’s Electoral College votes itself—something the Supreme Court reaffirmed in its controversial Bush v. Gore decision in 2000. So despite all the talk of Republicans “rigging” the system by possibly changing these rules, there’s nothing unconstitutional about switching to this method of choosing presidential electors. (In fact, a number of Democratic state legislatures, including California, have adopted the National Popular Vote plan, which would pledge all the participating states’ electors to the presidential candidate getting the most votes nationwide once enough other states adopt it.)
What’s going to stop these changes to the electoral system is not law, but politics. Republicans have a lot to lose by going down this road, which is why Florida’s legislative leaders have already balked at it. It’s also why you don’t see Republican legislatures simply reallocating Electoral College votes to themselves.
First, it is wrong to assume, as the right’s National Review and the left’s Think Progress have, that Mitt Romney would have won had this rule been in place. As Donald Rumsfeld might say, you go into a campaign with the Electoral College rules you have, not the rules you wish them to be. The Obama and Romney campaigns would have campaigned very differently in these states if they were under a district system, targeting not voters across the state, but voters in the key districts needed to win the election. Yes, Republican gerrymandering of districts would have given the GOP some advantage, but it is far from clear it would have been enough to defeat the Obama campaign machine.
Think about it: The last thing Republican legislators want is national Democratic campaigns scrounging for every vote in conservative-leaning districts. Fewer Republicans will win legislative and Congressional seats because Republican districts will become more competitive by design. Why would Republican legislators vote for a plan that will make it harder for them to keep their jobs?
Further, adopting such a system immediately turns a battleground state into a less important state. If all that’s up for grabs in Ohio are the three or four marginal Electoral College votes, then the presidential campaigns pay less attention to Ohio, and Ohio gets fewer promises and benefits from presidential candidates coming through. Such a plan is not good for those states that cherish being crucial to presidential election outcomes—states like Virginia, Wisconsin, and Pennsylvania.
In addition, the districting plan adopted in most of the swing states is a kind of unilateral disarmament. It is a sign of defeatism, an admission that the Republican Party no longer expects to win presidential elections in the state. Giving up on capturing a state’s full complement of Electoral College votes will make it harder in close elections for Republican presidential candidates to put together the number of votes they need to win the election. Do Republicans really want to give up on Virginia and Wisconsin? It might make sense on these grounds for Republicans to adopt this plan in Pennsylvania, but all of the other states are just too competitive to take this risk.
And finally, there is the risk of backlash, and this is where the Democratic freak-out comes into play. Republicans seem to have overplayed their hands in the 2012 election, adopting controversial voter identification, voter registration, and early voting rules intended to make it harder for Democrats to vote. To some extent these efforts in the voting wars backfired, subjecting Republicans to public criticism and some judicial reversals, and inspiring increased Democratic turnout to the polls. If Republicans proceed with these plans, any “rigging” or “gaming” of the Electoral College rules will be played up the same way by Democrats: Republicans can’t win fair and square, so they have to manipulate the rules.
We will soon learn whether rational Republicans will put the brakes on Electoral College reform. The Washington Post says the Virginia Legislature is considering changing the rules as early as next week. The Department of Justice could move to block the plan under the Voting Rights Act, but that path is uncertain. Regardless, the Great Democratic Freak-out makes the attempt to rejigger the rules much more costly, and if it does occur, the so-called reform could be self-defeating. Indeed, years from now Virginia’s Republican legislators may remember that day as the day they first began to return the state house back to the Democrats. And a Democratic state Legislature would probably reverse the rules anyway.
Richard L. Hasen is a professor of law and political science at the U.C. Irvine School of Law and author of The Voting Wars: From Florida 2000 to the Next Election Meltdown. He also writes the Election Law Blog.