Publius Speaks

Publius Speaks
Become A Follower

Sunday, January 27, 2013

More Dirty Tricks from Radical Republicans

In 2012, we were treated to some tricks that can be characterized as egregious and just plain dirty.  To wit, vote suppression: making voter registration almost impossible, changing of polling places without sufficient notification, to locations less accessible; limits put on early voting, ID requirements for voters that were potentially onerous enough to prevent many from voting at all.  Turns out that many people who felt they were being disenfranchised put forth great efforts to make sure they weren’t, including waiting in long lines, and up to five hours, to actually vote.

One would think that the vultures behind these dirty tricks would shrink from attempting this kind of thing again.  Think again.  Even though they suffered setbacks on several of their attempts to suppress votes, they’re back to push something that goes to the heart of our constitution.  They are intent on changing state laws to parcel the electoral votes of their state to the victor according to the results in congressional districts.  It’s worth a step back for an understanding of the historic Electoral College.

In order to appreciate the reasons for the Electoral College, it is
essential to understand its historical context and the problems that the Founding Fathers were trying to solve. They faced the difficult question of how to elect a president in a nation that:
• was composed of thirteen large and small States jealous of their own rights and powers and suspicious of any central national government
• contained only 4,000,000 people spread up and down a thousand miles of Atlantic seaboard barely connected by transportation or communication (so that national campaigns were impractical even if they had been thought desirable)
• believed, under the influence of such British political thinkers as Henry St John Bolingbroke, that political parties were mischievous if not downright evil, and  felt that gentlemen should not campaign for public office (The saying was "The office should seek the man, the man should not seek the office.").

How, then, to choose a president without political parties, without national campaigns, and without upsetting the carefully designed balance between the presidency and the Congress on one hand and between the States and the federal government on the other? 
(Drawn from “The Electoral College” by
William C. Kimberling, Deputy Director
FEC Office of Election Administration)

The Constitutional Convention considered several possible
methods of selecting a president.

Have Congress choose the President - rejected because some felt this would be too divisive, invite unseemly bargaining, or upset the balance of power between the legislative and executive branches of the federal government, or give the edge to candidates from the larger states
Have State legislatures select the President - rejected because this might undermine the authority of the central government and perhaps the whole idea of a federation
Elect the President by direct popular vote - rejected because they feared that without sufficient information about candidates from outside their State, people would naturally vote for a "favorite son" from their own State or region. “At worst, no president would emerge with a popular majority sufficient to     govern the whole country. At best, the choice of president would always be decided by the largest, most populous States with little regard for the smaller ones.”
Finally, a so-called "Committee of Eleven" in the Constitutional     Convention proposed an indirect election of the president through a College of Electors.  “The original idea was for the most knowledgeable and informed individuals from each State to select the president based solely on merit and without regard to State of origin or political party.  The number of votes per State were to be determined by the size of each State's Congressional delegation.

The current workings of the Electoral College are the result of both design and experience. As it now operates:

-Each State is allocated a number of Electors equal to the number of its U.S. Senators (always 2) plus the number of its U.S. Representatives (as determined in the Census).  There are 538 electors, based on there being 435 representatives and 100 senators, plus the three electors from the District of Columbia.
-The political parties (or independent candidates) in each State submit to the State's chief election official a list of individuals pledged to their candidate for president and equal in number to the State's electoral vote.
-Members of Congress and employees of the federal government are prohibited from serving as an Elector in order to maintain the balance between the legislative and executive branches of the federal government.
-After their caucuses and primaries, the major parties nominate their candidates for president and vice president in their national conventions.  The names of the duly nominated candidates are then officially submitted to each State's chief election official so that they might appear on the general election ballot.
-On the Tuesday following the first Monday of November in years
divisible by four, the people in each State cast their ballots for the party slate of Electors representing their choice for president and vice president
-Whichever party slate wins the most popular votes in the State becomes that State's Electors -- so that, in effect, whichever presidential ticket gets the most popular votes in a State wins all the Electors of that State. [The two exceptions to this are Maine and Nebraska where two Electors are chosen by statewide popular vote and the remainder (Maine-2; Nebraska-3) by the popular vote within each Congressional district].
-On the Monday following the second Wednesday of December (as established in federal law) each State's Electors meet in their respective State capitals and cast their electoral votes -- one for president and one for vice president.  In order to prevent Electors from voting only for "favorite sons" of their
home State, at least one of their votes must be for a person from outside their State (though this is seldom a problem since the parties have consistently nominated presidential and vice presidential candidates from different States).
-The electoral votes are then sealed and transmitted from each State to the President of the Senate who, on the following January 6, opens and reads them before both houses of the Congress.  The candidate for president with the most electoral votes, provided that it is an absolute majority (one over half of the total), is declared president. Similarly, the vice presidential candidate with the absolute majority of electoral votes is declared vice president.
-In the event no one obtains an absolute majority of electoral votes for president, the U.S. House of Representatives (as the chamber closest to the people) selects the president from among the top three contenders with each State casting only one vote and an absolute majority of the States being required to elect. Similarly, if no one obtains an absolute majority for vice president, then the U.S. Senate makes the selection from among the top two contenders for that office.
-At noon on January 20, the duly elected president and vice president are sworn into office.

It is important to emphasize that the Electoral College has worked well through the centuries, with the 12th Amendment and a few changes in law bringing about some alterations.  Kimberling asserts:  “The Electoral College has performed its function for over 200 years (and in over 50 presidential elections) by ensuring that the President of the United States has both sufficient popular support to govern and that his popular support is sufficiently distributed throughout the country to enable him to govern effectively.”  Although there were a few anomalies in its early history, none have occurred in the past century.  A number of constitutional amendments have been proposed seeking to alter the Electoral College or replace it with a direct popular vote but these have failed largely because the alternatives to it appear more problematic than is the College itself.

Why, then, is the GOP working to change the design of the Electoral College by getting certain states to do as only Maine and Nebraska have done?  One has to suspect that there is more here than meets the eye. 

“Republicans alarmed at the apparent challenges they face in winning the White House are preparing an all-out assault on the Electoral College system in critical states, an initiative that would significantly ease the party's path to the Oval Office," National Journal reports."  Senior Republicans say they will try to leverage their party's majorities in Democratic-leaning states in an effort to end the winner-take-all system of awarding electoral votes. Instead, bills that will be introduced in several Democratic states would award electoral votes on a proportional basis."

"Already, two states -- Maine and Nebraska -- award an electoral vote to the winner of each congressional district... But if more reliably blue states like Michigan, Pennsylvania, and Wisconsin were to award their electoral votes proportionally, Republicans would be able to eat into what has become a deep Democratic advantage."

As indicated, with the district method, a state divides itself into a number of districts (most likely using congressional districts) allocating one of its state-wide electoral votes to each district. The winner of each district is awarded that district’s electoral vote, and the winner of the state-wide vote is then awarded the state’s remaining two electoral votes.
This method has been used in Maine since 1972 and Nebraska since 1996, though since both states have adopted this modification, the statewide winners have consistently swept all of the state’s districts as well. Consequently, neither state has ever split its electoral votes.
Although this method still fails to reach the full ideal of one-man one-vote, it has been proposed as a nationwide reform for the way in which Electoral votes are distributed.
(http://archive.fairvote.org/e_college/me_ne.htm)

Republicans used their gains in 2010 to redraw congressional maps in their favor. The map is so tilted toward the GOP that the party won 234 seats to the Democrats’ 201, despite winning only 48.2 percent of the popular vote for Congress.
Democratic votes are concentrated in urban districts -- which Republicans see as both a problem, and an opportunity. As a poster on the conservative website freerepublic.com put it, “This is a great idea for Ohio. There is far too much clout in the major metro areas (Cleveland, Columbus, Cincinnati, Dayton), and all of that clout is on the side of the socialists, voted by the entitlement class. Proportional allotment would be a great way to get some voice back to the conservative districts.”

There are six Obama states in which Republicans control the governorship and both houses of the legislature -- Michigan, Florida, Ohio, Pennsylvania, Virginia and Wisconsin. (There are no Romney states controlled by Democrats.) If Republicans in each state had adopted this scheme, would Mitt Romney have won the election? Here’s how it would have changed the allocation of electoral votes:
Michigan (Romney 9 districts, Obama 5) Romney 11, Obama 5
Florida (Romney 16 districts, Obama 11) Romney 18, Obama 11
Ohio (Romney 12 districts, Obama 4) Romney 14, Obama 4
Pennsylvania (Romney 12 districts, Obama 4) Romney 14, Obama 4
Virginia (Romney 7 districts, Obama 4) Romney 9, Obama 4
Wisconsin (Romney 5 districts, Obama 3) Romney 7, Obama 3

This would have transferred 45 electoral votes from Obama to Romney, reducing his total from 332 to 287 -- still enough to win the presidency.
Rigging the Electoral College isn’t going to work. Republicans may have to resort to more drastic measures -- such as expanding their base beyond suburban and small-town whites, and running on a platform that appeals to a majority of Americans.
(Source: http://www.nbcchicago.com/blogs/ward-room/GOP-Plan-To-Rig-Electoral-College-Wont-Work-187685241.html#ixzz2IrJ8Gk5m)

Why, then, is the GOP cherry-picking states in which to do this?  First, because they are states with either a Republican Governor or with a Republican legislature, or both.  Second, because the chances are that there are enough congressional districts that are already secured for Republicans to make a difference in garnering electoral votes beyond what Democrats can do.  Don’t forget, in many of these states, the Democrat-controlled districts are within urban areas, but not in rural or certain suburban areas. The importance of these rural areas cannot be underestimated.  The Democrat winning of the popular vote state-wide would not be the determinate factor, rather, it would be the number of rural and suburban districts which matter little under a winner-take-all scenario, but swing the electoral vote to the GOP under a district allocation of votes.

Another factor in all this is that of gerrymandering.  Republicans have been working for some time (in states that give them either the state house or the legislature) to carve out districts that favor their brand.  They have had some stunning success, as in Michigan.  Now, they can take those successes and under a district allocation of electoral votes, be assured of certain districts that Democrats can probably never win. 

“After the 2010 GOP electoral surge, Republicans had new majorities in many statehouses and have been able to re-draw Congressional districts to favor their party. Largely thanks to those new maps, the GOP kept control of the U.S. House of Representatives after the 2012 elections, despite 1.1 million more Americans voting for Democratic House candidates than Republicans.” 

“Republicans are not discussing changes to electoral allocation in solidly red states, but only in Democrat-leaning states whose congressional maps were recently gerrymandered to benefit the GOP -- and if these states allocated their electoral votes according to Congressional district the presidential race could have a similarly disparate outcome.” (www.prwatch.org)

Will the fact that Republicans are planning this trick just for Democrat-leaning states be the death-knell for this dirty trick in the sense that it is not universal?  Probably not, since Maine and Nebraska set a precedent.  Will gerrymandering at its base bring reaction on the part of Progressives and Democrats?  Perhaps, but getting rid of gerrymandering, perhaps by requiring a non-partisan commission in every state to re-draw districts, is a long-term strategy and not likely to be passed easily in states where Republicans have control.

So that leaves us, perhaps, with a challenge to this trick built upon the one man, one vote rule.  The "one man, one vote" rule (also called "one person, one vote") derives from the US Supreme Court ruling in Reynolds v. Sims, 377 US 533 (1964) that held state political districts of unequal size resulted in under-representation of some citizens' interests and over-representation of others'. This was considered ‘unrepublican,’ per Article IV, Section 4 of the Constitution, and also unconstitutional under the Fourteenth Amendment Equal Protection Clause. In order to meet constitutional standards, districts had to be reapportioned so each had approximately equal population.” (wiki.answers.com)  Wesberry v. Sanders, 376 US 1 (1964) applied the same principle to districts of the US House of Representatives.

Unfortunately, both district allocation of electoral votes and gerrymandering might mean bringing lawsuits in each state which would hopefully make their way to being heard by the Supreme Court, a somewhat long-term strategy.  The whole question of gerrymandering must be addressed, lest more rural and suburban districts become Red forever.  These battles have to be fought state-by-state because that is where the control lies.  For instance, to lessen the chances of gerrymandering, there would need to be state legislation making non-partisan groups responsible for re-districting when a census demands such.  That means changing the laws of most states.  Democrats and Progressives need to act now in order to be ready for 2016.  Perhaps the newly structured grassroots group “Organizing for Action” will need to get busy at the state level to influence how states deal with these two interactive issues.  Ignoring the dirty tricks of frustrated losers is fraught with danger!