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Republicans Rigging 2016 Redux

[ 73 ] January 17, 2013 |

Erik beat me to the punch. See also this on the call for red controlled blue states to monkey with the distribution of Electoral College votes to suit the Republican nominee. I guess if you lose the popular vote by nearly 4% nationally, even with your best attempt at voter suppression in place, you have to get creative in your brazenness.

Erik covers a lot of solid ground, but there’s another unintended consequence worth mentioning. The following table is from a lecture I give on the Electoral College.  I didn’t work these figures up myself; I believe the source is Bowler and Donovan Reforming the Republic (2004).  The first four columns are self explanatory. The fifth column is how the EC vote would be distributed if all 50 states had been using the Congressional district approach (WTA simply stands for ‘winner take all’), with the two EV votes due to Senate representation given to the overall state winner.  The sixth column shows how the votes would have been distributed if all 50 states went with the PR model.

The red figures represent an election that fails to hit the magic number of 270 votes, and is thus thrown to the House.  Under an Electoral College allocated by PR, the 1960, 1968, 1992, 1996, and 2000 elections would have been decided by the House.  Strangely, 1976 results in a 269-269 tie under the district plan.  Regardless, PR sends the election to the House in five of 11 elections between 1960 and 2000, while even the CD plan results in the House deciding the 1976 election.

I don’t like the Electoral College, at all, but most proposals that retain the underlying logic of the Electoral College increase the probability of throwing the election to the House. Furthermore, a CD based system is vulnerable to gerrymandering. Given that there’s only a vanishingly small chance that an amendment to the Constitution would pass ditching the EC entirely, any reform must retain the logic and structure of the EC.

After NE-2 went for Obama in 2008 (with its one Electoral College vote), a bill was introduced in the Nebraska legislature to scrap the district system, of course, because Democrats might benefit from it in the future.  It died in committee, and was unpopular statewide. Of course, if the entire state goes blue, it must be OK.

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  1. SP says:

    A little game theory- how does another state legislature controlled by Dems block the behavior of a red state house blue state? By signing on to national popular vote legislation. It would be hilarious to see this plan thwarted in that manner.

    • NonyNony says:

      The thing that I really don’t like about National Popular Vote is that a legislature cannot legally tie the hands of a future legislature. If my state signs onto NPV today, what prevents a future legislature from changing their minds a few years down the road and pulling out when the result of the popular election totals conflicts with the result of their own state’s popular vote tally? Nothing as far as I can tell.

      It’s a hack around a Constitutional amendment to eliminate the Electoral College. I understand the urge, but I’m unconvinced that it would work out the way proponents suggest.

      • SP says:

        I can see a future legislature modifying it between elections and messing up the compact, but changing after election before electors are seated would rightly be called a coup. Technically there’s nothing from preventing one of these red state houses from just saying “PA electors shall be those committed to the Republican candidate” but I doubt even the Tea Party would try that.
        Anyway, the relevant law could say that as long as states totaling 270 continue to agree to the compact it remains in force, and if too many states pull out it reverts to statewide vote.

        • NonyNony says:

          but changing after election before electors are seated would rightly be called a coup. Technically there’s nothing from preventing one of these red state houses from just saying “PA electors shall be those committed to the Republican candidate” but I doubt even the Tea Party would try that.

          No they wouldn’t.

          But if a state in the NPV compact’s popular vote was going to the Republican and the national vote was going to the Democrat, I could completely see the Tea Party types revoking the compact after the election with a justification that they were defending the liberty of the voters of their state.

          And since we’re talking a state legislature here, I don’t see how they would need to even care what people outside of their state think about it as far as a “coup” goes. It would probably be like Bush v. Gore – there would be some tut-tutting but then the media would tell Democrats to stop acting like children and just accept the fact that it was all Constitutional and perfectly fine.

          (It might result in a legitimate, sustained push for an amendment to get rid of the Electoral College, but I think a modern election that resulted in a popular vote win and an Electoral College loss will do that anyway).

          • Incontinentia Buttocks says:

            But what prevents that today? Couldn’t Pennsylvania, Ohio, and Wisconsin just as easily have changed their electoral vote distribution between last year’s election and the meeting of the Electoral College? You could even use a similar justification: the many Romney voters in these states are not having their will represented by the winner-take-all system.

            This is certainly a general concern about the way the Electoral College operates, but I don’t see how it raises any special issues with the NPV compact.

            • NonyNony says:

              Because it’s new. Arguments that “hey our stated voted for Romney – why should our electors be apportioned to Obama just because of some stupid compact our legislators enacted a decade ago” will be plausible.

              That kind of situation doesn’t come up right now because of the whole “majority rule” principle that most states use to apportion their electoral college votes. If the Ohio legislature tried to pull a stunt that gave the votes to Romney despite winning the popular vote in the state they’d face a riot. Because it’s clear that the majority in the state voted for Obama and their act is a violation of that majority. The exact same reaction occurs with an NPV compact. Suppose the majority of the state voted for Romney but the popular vote narrowly gave the election to Obama – you really think that a Republican legislature and a Republican governor backed up by a Republican majority of voters in a Presidential election aren’t just going to say “screw the NPV compact – we’re out” and give him the votes? I don’t.

              • Incontinentia Buttocks says:

                I don’t buy the “because it’s new” argument. Let’s assume that changing the rules of an election after it’s taken place passes muster in the federal courts (I doubt it, but anything is possible). What’s your argument that, once they think of changing the rules post-election, Republicans won’t change the rules in winner-take-all states? Do you really believe that today’s GOP has such an abiding commitment to the niceties of political tradition? 46.59% of Pennsylvanians voted for Romney…but they get no electoral votes. Why is your argument any more plausible than complaining about the unfairness of winner take all?

                • Dilan Esper says:

                  Actually McPherson v. Blacker and the first Bush v. Gore case (the unanimous one) prohibit changing the rules after the election. I don’t think the Supreme Court would allow this.

              • Hogan says:

                the whole “majority rule” principle that most states use to apportion their electoral college votes.

                Let’s not confuse “majority rule” with “winner take all.”

      • Murc says:

        I had been under the impression that not only does the NPV legislation mandate it doesn’t go into effect until sufficient other states sign on, it also stated that it ceases to be an effective law if the threshold ever drops back below 270. Am I wrong?

        • S_noe says:

          I think the argument is that a more permanent solution, via amendment, is better because it can’t be undone as easily. (Can’t be enacted as easily, either.) Because yeah, you’re right on the proposed law.

        • NonyNony says:

          That doesn’t actually impact what I’m talking about here. What I mean is there’s nothing in the NPV situation that would stop a state that had signed on from dropping out by an act of the Legislature/governor’s office after a close election is over and it turns out that their state’s popular vote went for the other guy and that would be enough to shift the electoral college vote to the other guy.

          There would be no downside for the state legislature – they could claim that they were just enacting the will of the people of their state who obviously said they wanted the other guy to win. There would be wailing and gnashing of teeth from people outside of the state, but why would they care about that?

          • Incontinentia Buttocks says:

            Again, that’s just as true without NPV as with it. To the extent that a state could post-election drop out of the NPV compact, it could post-election go from a winner-take-all to a proportional distribution of electoral votes, no?

            • NonyNony says:

              No – because as I stated above the majority would show up in the state capitol bearing torches and pitchforks to make sure it didn’t happen. The NPV idea has some bad incentives baked into it because for it to make any difference at all in the final result it counts on states whose popular vote totals give a different winner than the national winner to honor the compact instead of the will of the majority of voters in their state. The current scheme only relies on the legislature doing what the majority of voters in their state tell them to do – which means that the legislature ISN’T doing that you’ve got bigger problems with democracy in your state.

              (In fact my biggest problem with the NPV scheme is that it relies on anti-democratic behavior at the local level to make things more democratic at the national level. I don’t like the idea that we need to undermine democracy to make things more democratic and, more importantly, I have strong reservations about whether it will even work given how the incentives line up to mess with it in the extreme cases where it would be important anyway.)

              • Incontinentia Buttocks says:

                There’s nothing at all democratic about the electoral college…especially with winner-take-all statewide elections.

                Your arguments, both about the inherent desirability of NPV and about ex-post-facto rules changes, apply radically different standards to the status quo and NPV.

                In fact, all the problems you have with NPV are problems that are baked into the electoral college system and that exist today. The electoral college is deeply undemocratic and lends itself to manipulation. I agree with you that these are big problems. But NPV doesn’t make them any worse. And it makes a lot of other things much better.

                • NonyNony says:

                  But I don’t TRUST the NPV to hold. Because it is new and novel. Yes those are problems in the Electoral College today, but things like that don’t happen because human beings are inherently small-c conservative. If it ain’t broke, don’t fix it.

                  NPV upends that in a way that puts the incentives right onto the GOP to “go back to the way things were” if things don’t go their way. You really think in this country that won’t happen? Really?

                  I think the Electoral College has major problems. NPV pretends to fix these problems but it doesn’t because there is no enforcement – there’s no way to make people honor it. Tradition keeps people honoring the electoral college distribution for now.

                  I’m not saying it wouldn’t work – I’m saying that I’m INCREDIBLY SKEPTICAL that it would work as well as proponents think.

                  The one good thing about it is that the scenario I’m talking about would force a non-popularly voted President into office in a very high profile way – which might actually get people thinking seriously about the real fix to this problem that would work. Which is a constitutional amendment to abolish the goddamn Electoral College.

              • S_noe says:

                my biggest problem with the NPV scheme is that it relies on anti-democratic behavior at the local level to make things more democratic at the national level.

                That is not convincing me, given that the presidency’s a national office. If you reductio your argument, the individual voters’ preferences are even more local than those of a state or district. Add them up without grouping them arbitrarily.

          • mpowell says:

            Well, it all depends on the specifics of the NPV bill. But if a state drops out after an election, I don’t see what would prevent the rest of the states from sending electors based on the old system. That’s how NPV should be written (and frankly, I’ll assume it is until given proof otherwise). The threshold should not be 270 electoral votes on election day, but 270 electoral votes worth of states following the rule when they send in their electors. If the bill is written correctly, there should be no way of fooling the system.

            That being said, there is always the risk of single states being able to swing a close election by changing their NPV rules either before or after election day. No way around it really. In a sense, maybe NPV will never be workable.

          • S_noe says:

            This scenario is addressed in the FAQs on the NPV website.

            I am totally not qualified to evaluate their legal argument.

            Your skepticism is bracing; I’m not convinced, but I’m an optimist. If NPV passes its threshold, it’ll be baked into the election cake the first election year. Campaigning will be very different, and there’ll be a ton of news coverage about how NPV works. I think an attempt to overrule it in one state after the election will be seen as bad loserism. It could happen, and your point about such a move representing the will of the state’s residents is well taken. I just think it’s unlikely.

            Even if that happens, the law as written does seem to provide for a reversion to prior law.

  2. Dirty Davey says:

    My question: is there any possibility that the gerrymandering of house districts could make district-by-district electoral allocation unconstitutional? I’m thinking of some combination of Article 4 (guaranteed Republican Form of Government) and equal protection.

    I know the direct grant of control over electors to the state legislatures is pretty open-ended, but isn’t there still an equal-protection argument to be made?

    Or could one-party legislatures even go all the way and pass legislation saying “This year, all our electors will be allocated to Our Party regardless of the vote in the state”?

    • Greg says:

      The constitution give the legislatures power to choose the electors. If a legislature decided to just not have an election for president and name the electors on their own, that would be completely constitutional.

      • Just Dropping By says:

        I agree that a state could constitutionally choose to simply have the legislature pick all of its electors. However, once a state creates a mechanism by which voters pick electors, it would seem to me that would start implicating equal protection principles. (Similar to the way that, as a default, an individual has almost no due process protections in administrative agency proceedings, but once an agency starts establishing rules governing its procedures the failure to follow those rules can be a due process violation.)

  3. Given these results…. I still think CD/WTA is the way to go. PR has the advantage of giving “third” parties some clout, but only if the EC shifts to some kind of multi-round voting to redistribute votes at bottom of list before throwing it to the House.

    Other necessary reforms, like non-partisan districting and consistent federal standards for voting access, should alleviate some of the weaknesses, but even without them, it still looks closer to a fair system than what we’ve got now.

  4. tt says:

    Isn’t the most successful electoral reform movement so far the National Popular Vote? This doesn’t suffer from any of the problems you mention and doesn’t require constitutional amendment. Under current conditions there’s no chance it gets passed in enough states, obviously, but that’s true of all other national reform proposals also.

  5. rea says:

    We could make a lot of this problem go away by significantly increasing the size of the House–but representatives of both parties would probably object to anything that decreases their individual power.

  6. The worst part, for me, is this sort of feeling that they’re probably too internally divided, incompetent, or oblivious to public opinion to get this done — but if they do, what the fuck can we do about it? Nothing. Powerless exasperation about the banality of it all.

    • liberal says:

      Of course there’s things that can be done, including violence.

      • Have you noticed that nobody is agreeing with you?

        • Josh G. says:

          The moral argument against political violence relies upon the underlying system having popular legitimacy, and being amenable to democratic change.

          The Republicans have a clear program of using their temporary ascendancy in the 2010 elections to tilt the playing field permanently in their direction. They have already substantially gerrymandered the House of Representatives so that even though a majority of Americans voted for a Democratic representative, the Republicans will still be in charge. And they are now proposing to change things so that Democrats could win a sizable majority of the popular vote and the Republican presidential candidate would still win.

          How bad do things have to get before talking about dynamic response becomes acceptable? Serious question, not rhetorical. If the Republicans won the House and Presidency in 2016 and 2020 despite losing the popular vote in both by substantial and increasing margins, would it be acceptable to say that the system is completely broken and to kick the table over?

          • Bad enough that you’re willing to avoid euphemisms like ‘dynamic response’ and say you want to bust some heads and attack some people.

            If the situation isn’t bad enough to make the open, accurate discussion of who you want to hurt, and how, something you’re willing to engage in, then it isn’t bad enough to actually hurt people.

            • liberal says:

              If the situation isn’t bad enough to make the open, accurate discussion of who you want to hurt, and how, something you’re willing to engage in, then it isn’t bad enough to actually hurt people.

              IMHO it’s reasonable to hurt the agents actively, directly instigating these changes. The actions comprise treason against democracy, in fact if not in law.

              The strong argument against political violence is that it has unpredictable results.

            • Josh G. says:

              I hope it doesn’t ever reach that point.

          • xxy says:

            I know this isn’t helpful, but the fact that we are talking about what we should do after Republicans legally seize power in an illegitimate election is pretty depressing.

            I guess we could try the Arab Spring thing. Maybe occupy the Capitol building to prevent the electoral votes from being counted and the new Congress from being sworn in and hold emergency elections? And hope the police and military don’t shoot us, I guess.

            • Josh G. says:

              Yes, if the Republicans do seize power in this manner, then obviously attempting peaceful protests and sit-ins would be morally obligatory before any resort to violence.

              But suppose that they rig the 2016 Presidential election via state government and simply ignore the protests, or even have the protesters arrested and/or shot. This makes the 2020 election even more lopsided in their favor since they will have had 4 years to pass more bad laws, appoint radical right-wingers to the Supreme Court, and so forth. What then?

            • liberal says:

              Right. Something along those lines.

        • liberal says:

          Yeah, pretty weird, given how many people on this blog are warmongers. I would have thought they’d love themselves some violence when it was actually directed against deserving targets.

    • but if they do, what the fuck can we do about it?

      Challenge the seating of the electors.

      • Joe says:

        On what grounds? It is a legitimate thing to do under the Constitution.

        • On whatever grounds one Senator and on Rep write down. It then falls to the Congress to decide if those grounds are legitimate, and there is no appeal.

          If the Republicans in, say, Pennsylvania and Florida manage to blatantly rig the election, what incentive do the Democrats have to defer to a sense of fair play?

          • Joe says:

            How did that work in Powell v. McCormack when seating of legislators was involved? If the elector is gay, e.g., is that a valid reason? The “rigging” here is allowed — the EC as we all know opens up some bad results. This sounds like those who want Obama to act like a king since you know the Republicans are not being fair.

            • I don’t know what the courts would do. I hope we don’t find out.

              The “rigging” here is allowed — the EC as we all know opens up some bad results.

              The denial of electors is “allowed” in the same since – the power to refuse to seat electors also opens up some bad results.

              This sounds like those who want Obama to act like a king since you know the Republicans are not being fair.

              Yes, it does. Such unprincipled, brute force should be a last resort – but we’re not talking about whether a bill passes or a policy is implemented. It’s the legitimacy of our democratic system itself in danger here.

              • I’m not buying this at all. A national party coordinating a move to change the way some states allocate their electoral votes to their advantage would be unethical, undemocratic, and underhanded, but it would also be completely legal and within the power of those state level elected officials to do it. Refusing to seat those electors because the other party objected to duly enacted and wholly Constitutional election law in the state would be the illegitimate and lawless act here.

                • mpowell says:

                  Lawless and illegitimate are not the same thing.

                  I used to not worry about gerrymandering so much because it just didn’t work all that well. Times change. And even as demographics change you can always keep a state gerrymandered if you’re willing to redraw the lines fairly regularly. The Republican state parties have managed to give the Republicans a 6-7 point edge in the House. I don’t know how well they have been able to gerrymander their own state level districts, but I wouldn’t be shocked to learn that they were similarly successful. A party that is this ruthless in a system with as poor of institutional controls as the US has is very dangerous. If they took the necessary legislative steps, they could easily leverage themselves into permanent control of the House and Presidency with <45% of the national vote. That's an extraordinarily dangerous circumstance to allow. I'd favor the consideration of a variety of effectively lawless tactics to prevent that outcome from being realized. I'm not really sure what the best options are, though.

                • liberal says:

                  mpowell wrote,

                  A party that is this ruthless in a system with as poor of institutional controls as the US has is very dangerous.

                  Paul Krugman, IMHO, described the current situation best when he wrote in The Great Unravelling:

                  Back in 1957, Henry Kissenger — then a brilliant, iconoclastic young Harvard scholar, with his eventual career as cynical political manipulator and, later, as crony capitalist still far in the future — published his doctoral dissertation, A World Restored. One wouldn’t think that a book about the diplomatic efforts of Metternich and Castlereagh is relevant to U.S. politics in the twenty-first century. But the first three pages of Kissinger’s book sent chills down my spine, because they seem all too relevant to current events.

                  In those first few pages, Kissinger describes the problems confronting a heretofore stable diplomatic system when it is faced with a “revolutionary power” — a power that does not accept that system’s legitimacy. … It seems clear to me that one should regard America’s right-wing movement — which now in effect controls the administration, both houses of Congress, much of the judiciary, and a good slice of the media — as a revolutionary power in Kissinger’s sense. That is, it is a movement whose leaders do not accept the legitimacy of our current political system.

  7. Joe says:

    Those numbers were thrown in various cases by the presence of third parties. It is a concern if it was thrown to the House in such cases but the current system is a problem under them too (especially in 2000). Some sort of change is advisable there like instant run-off voting & if that was part of the package, perhaps, some of the problem with a district system would come out differently. This does suggest that if you change a system, you should take into consideration various things.

    The gaming of the system here suggests the value of more national control of voting, at least the ABILITY to do so. Congress usually has the power to affect the manner of federal elections but the EC gives state a special opportunity to screw things up. They do it already with voting id laws etc. but this would really do it. A standard rule is a good idea here & though two outliers don’t have it now, it’s more of a footnote. If a few key swing states decide to do it, it will be much worse.

    • Hogan says:

      Throwing elections to the House is actually a force multiplier for the gerrymanderers, since each state delegation casts one vote. So the fact that the Republicans won a majority of PA congressional seats with a minority of votes means they get a second chance to muck it up.

  8. Josh G. says:

    The underlying problem is federalism. Abolish the states.

    • NonyNony says:

      I find myself intrigued by your ideas and wish to subscribe to your newsletter.

      • LeeEsq says:

        Alexander Hamilton’s best idea, one was that not adapted unfortunately, was to turn the states into provinces subbordinate to the national government. There is nothing wrong with elected government on the sub-national level, especially in a georgraphically large country or a very populous country. However, the national government should be able to legislate on any issue and be able to enforce conformity on the sub-national level.

  9. Ian says:

    I’m worried that the focus on gerrymandering obscures the fact that there is no way to carve out districts in most states that wouldn’t give the Republicans a disproportionate share: even if you gerrymander in the other direction, attaching slices of the deep blue cities to the purplish suburbs, you still can’t entirely get rid of the Republican advantage (and you create really ugly and implausible districts).

    It’s not just that CDs in many states have been rigged in the Republican direction; it’s that determining electoral votes by CD inherently disenfranchises urbanites.

    • dave says:

      This is true. But the data suggests that the disenfranchisement of urbanites if districts were “fairly” drawn is minimal.

    • Bijan Parsia says:

      At large voting with districts assigned afterwards (districts becoming mere admin areas) would solve the problem. Split the reps proportionately to the statewide vote and then assign them a district for constituants services. Hell, just assign constituants on the fly by random draw :)

      • S_noe says:

        I like this idea, and it’s new to me. So thanks!

        It does take away the opportunity to have a congressional contest with local issues in play, though, doesn’t it? I myself think that such localist arguments are way over-cited in arguments for the current system, but people seem to find them convincing.

  10. Anonymous says:

    These plans will pass, the GOP governors will smile and then with the stroke of a pen make it impossible literally impossible for a Democrat to win in 2016.

    and it’s aaaaaallll legal, right there in the Constitution.

    the Constitution: annoying liberals since 1789.

  11. Joshua says:

    As noted, this will probably do more harm than good to the GOP in the long-term. I’m not sure they even care about that game anymore.

    They know their time is up, but they’ve had a good run. They’ve extracted tons of wealth from the commoners, busted unions, built the police state they wanted, and turned government into a department of Big Corp. Anything else is gravy, a chance to take a few things that are nailed down. If it takes crap like this, so be it. It’s not like they are going to make themselves that much more repugnant to voters than they already are. Are old blue collar white men going to stop voting for them?

  12. Matt says:

    The GOP had best be careful swinging that “proportional” stick around – somebody might start to notice things like the number of Red states that have EV totals completely out of proportion with their population.

    For instance, do the half-million wingnuts in Wyoming (3 EV) really deserve 3 times more say per person than the 11 million citizens of Ohio (20 EV)?

    • Speak Truth says:

      The GOP had best be careful swinging that “proportional” stick around….

      For God’s sake, don’t look at the USPS, large city employees or most any government, for that matter. Many use “Race Preference” which is a really nice term that means “color of one’s skin”.

      • Malaclypse says:

        Remember when Citizens United was going to keep the White House, and the Senate, in Republican possession forever? When Mittens was going to win in a landslide?

        Now a cracker can’t even get a short stack of pancakes.

  13. Joe says:

    Does anyone around here support ending the district method and using at large voting of representatives with some sort of instant run off voting mechanism or some other mechanism to deal with the first past the post vote problems to deal with gerrymandering?

    If not, what other nation-wide methods would be appropriate here (other than JFL’s last resort method) to specifically deal with gerrymandering and related concerns? That is, w/o amendment.

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