Here's a user's manual on the latest effort to bend the Constitution to rig the next presidential election, and the next and the next, for that matter.
Step 1: Start with an effort to make sure that you win every state legislature you can for your political party -- either Democrat or Republican; it doesn't matter. Democrats have toyed with this idea in the past after they lost the White House; Republicans are doing so now, only with more purpose and drive (and Super PAC money, which goes a very long way at the state legislative district level).
Step 2: Be sure to win and hold this legislative majority in the year or so immediately following the national census. Population shifts among the states generate specific opportunities for your legislators to redraw the U.S. congressional districts in ways that stack the deck in favor of your party by good old fashioned American gerrymandering, while some states have set up non-partisan commissions to redraw district lines fairly and independent of party favoritism, most still keep this juicy perk the hands of Statehouse politicians.
Step 3: Draw the district lines to be sure your party will win a clear majority of congressional districts in your state, leaving your opponents with a only rump minority of winnable seats.
Step 4: Next, use your party's state legislative majority to vote in a change in how your state's Electoral College votes will be cast in the presidential election, switching from the prevailing "winner-take-all" allocation to a more radical version of the rules now in place only in Maine and Nebraska that awards one of its electors votes to the candidate that wins each congressional district, and awards the states remaining two votes -- constitutionally representing its number of senators -- to the candidate that wins the most congressional districts in the state (Maine and Nebraska still award these two votes automatically to the statewide winner).
Step 5: Claim that this change is all about making the votes in each congressional district count equally (or something like that, anyway).
What this plan is really all about, however, is to make virtually certain that the candidate that wins the majority of the national vote, and the majority of the state-by-state popular vote, nonetheless is not only not guaranteed to win the presidency, but is in fact most likely to lose. Winner-takes-all becomes loser-takes-all.
For example, if this new system of electoral vote counting had been in effect in 2012, Barack Obama's four percent, four-million vote majority nationally, and his win of a states with over a 100-vote majority in the Electoral College, would have become a narrow electoral vote loss to Mitt Romney. This reality certainly narrows the appeal of the argument that this new plan is the best way to reflect the "will of the people."
Lest there be any doubt that the goal of this new electoral college distribution plan is intended to reverse the results away from a popular majority outcome, bear in mind that the states where the incumbent Republican Statehouse leadership represent a majority of the so-called "swing states" in the last election: proposals to shift to the system outlined above have been brought forward by GOP leaders in Virginia, Ohio, Pennsylvania and Michigan -- can New Florida be far behind? The Chair of the Republican National Committee has put his weight behind the project. While no doubt Republican leaders would not want to entertain such changes in their "winner-take-all" states like Texas, the Chair of the Republican National Committee has put his weight behind this effort to turn enough swing states into "Red" states to make the national candidate more competitive in the Electoral College regardless of the popular vote spread.
There would seem to be no stopping this movement constitutionally, since that document -- while it specifically dictates how many electoral votes each state will have -- nonetheless leaves the control of electoral votes to the states: In the abstract, a state could allocate all its votes to the loser of its popular vote, or to Santa Claus, if the voters would put up with that.
Indeed, some states (after the Bush v. Gore decision awarded the presidency to the popular vote loser) have enacted proposals to award their entire electoral vote to the national popular vote winner regardless of who won that particular state, so long as states with a majority of electoral votes states agree likewise. But the impetus for that particular end-run around the Electoral College system has lost its momentum on the Democratic side after two consecutive and aligned popular and electoral majorities for Obama.
Only public outcry can stop the momentum in swing states now held by Republican majorities from proceeding with the shift of their Electoral College vote to a system driven exclusively by the votes per Congressional district, which have already been gerrymandered to deliver a Republican majority. Such an outcry might be based on a better appreciation of what the Constitution may well infer about the distribution of electoral votes, even if it does not expressly provide a resolution.
Ironically, the practical limits in the existing political landscape (e.g., the Texas situation noted above) means the most pernicious result of the present move to change the College might be to deny any candidate an electoral majority, strengthening the clout of marginal third party candidates who might pick up just enough Congressional districts to control the College outcome with hard bargaining, or cause an electoral deadlock.
When no candidate receives a majority of electoral votes, the Twelfth Amendment to the Constitution revised the electoral process to provide that the presidency would be determined by the newly-elected House of Representatives -- which might on its face suggest that choosing electors on the basis of Congressional districts might be an acceptable approach constitutionally after all.
But the Amendment goes on to provide that in voting for the president, the Representatives must in effect pool their votes by state, with each state having only one vote -- that is, a "winner take-all" system, state-by-state, just as 48 of the 50 states now provide for their won Electoral College votes!
Surely this means that the recent move to change the traditional Electoral College vote allocations is far out of step with the logic and spirit, and even the most relevant literal provisions, of the Constitution, and should be resisted -- not only by liberals and Democrats whose hoped-for emerging presidential majorities might be threatened, but also but by all those Republicans who proudly assert their conservative values, which indeed are well-grounded in a Constitution whose authors were more than familiar with the Burkian philosophy of limited government insured by its unquestioned legitimacy.
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