Why Pennsylvania and Nebraska Proposals to Alter Those States’ Electoral College Allocations Are UnAmerican, If Perhaps Not Unconstitutional

Posted in: Election Law

In my column today, I critique two separate but similarly flawed proposals being advanced by Republican elected officials in Pennsylvania and Nebraska, to change the way the two states will divvy up their blocks of electors in the so-called electoral college in the 2012 election.  At the end of the day, while the proposals may not be illegal, they are deeply problematic and antithetical to basic principles underlying American democracy.

Background on the Traditional Winner-Take-All Approach to Allocating Presidential Electors, and the Recent Republican Proposal in Pennsylvania

Let’s start with Pennsylvania.  Like virtually every other state over the last hundred-plus years, Pennsylvania currently awards its entire electoral college block—which today stands at 20 electoral college votes—to whichever candidate wins the most popular votes in the state.  That is, Pennsylvania, like almost every other state, allocates its electors on a winner-take-all basis, and does not split its electoral votes between the various presidential tickets.

This winner-take-all approach to the electoral college appears eminently reasonable if we take as a premise each state’s desire to maximize its own importance in the presidential election process. By providing each presidential candidate with a large return (in the form of the state’s entire electoral college bloc) for the candidate’s promises and platform planks targeted to the state’s electorate, the state increases the likelihood that all candidates will take the state seriously and address its needs and concerns.

Republicans in Pennsylvania now propose to change things there, so that the state’s 20 electors will be awarded according to which presidential candidate wins each of the state’s 18 congressional districts, with the remaining two votes going to the candidate who wins the most votes statewide.

In other words, each candidate would get one of Pennsylvania’s electoral college votes for each congressional district in which s/he is the leading vote-getter, and the remaining two of the state’s electoral college complement would go to the candidate who wins the most votes statewide.

Pennsylvania’s proposal is a departure from the historical norm.  But does, or should, that doom the plan?  After all, there are a few states that currently make use of the “district-by-district” allocation approach that Pennsylvania is considering.  In Maine and Nebraska (and I’ll discuss things in Nebraska further below), electors have for some time been allocated according to whoever wins each of the congressional districts, with the remaining two electors from each of those states going to the candidate who wins the statewide vote count.

One Difference Between the Pennsylvania Proposal and Current Practice in Maine and Nebraska:  The Popular Vote Winner’s Guarantee of Winning a Majority of the State’s Electors

There are two big differences between the Pennsylvania proposal and current practice in Maine and Nebraska.  First, in Maine and Nebraska, the winner of the statewide vote in each state is at least assured of winning the majority (though not all) of the state’s electors.

In Maine, for example, there are two congressional districts, and four electors in total.  If a candidate wins the statewide popular vote, s/he gets two electors for that, and winning the statewide vote means s/he had to have won at least one of the two congressional districts.  So if a candidate wins the statewide popular vote, s/he gets at least three of the state’s four electors, and maybe all four.

The arithmetic is similar in Nebraska; it has three congressional districts and five electoral college votes.  If a candidate wins the statewide vote, s/he gets either three, four, or five of the state’s electors—and thus, in all cases, at least a majority of the five.

But that is not true in Pennsylvania.  A candidate could win the statewide vote, and still lose in, say, a dozen of the 18 congressional districts.   If that happened, the statewide winner would get only eight of the state’s 20 electors (six for the six districts won, plus two for winning statewide.)

Indeed, because the Republican legislature in Pennsylvania has drawn congressional district lines so as to maximize the number of districts in which Republicans might best Democrats (by packing Democrats into a few, largely urban, congressional districts), it is quite possible that President Obama—under the new proposal—could win the statewide vote, and yet get fewer of Pennsylvania’s electors than his opponent.

For those who think treating all voters equally—not weighting anyone’s vote more than anyone else’s simply based on where folks live—is an important idea, the Pennsylvania proposal should be troubling.  Unlike the Maine or Nebraska regimes (or, say, a regime in which Pennsylvania’s block of 20 electors were allocated strictly in proportion to the statewide popular vote, rather than on a winner-take-all or district-by-district basis), the proposal under consideration in Pennsylvania is a full frontal assault on the one-person, one-vote idea.

A Second Reason the Pennsylvania Proposal—and a Recent Proposal in Nebraska—Are Problematic:  The Partisan Motive Behind Them

Second, the Pennsylvania proposal differs importantly from current practice in Maine and Nebraska in terms of motive.  As far as I know, no one has shown that the current laws in Maine and Nebraska were motivated by a desire to help or hurt one political party in an upcoming presidential election.  Instead, those two states simply thought district-by-district was a good way to allocate electors.

But things are different with respect to Pennsylvania’s plan today.  Why are Republicans urging their proposal?  Because they think President Obama has a good chance of winning the statewide vote (and thus getting all 20 electoral college votes under current law), and they believe he would have a tough time gaining reelection without getting all of Pennsylvania’s bounty.  If Obama collects only some of Pennsylvania’s 20 votes, the thinking goes, he is very unlikely to reach the 270 electoral college votes needed to win the Presidency.  By contrast, the Republican nominee (whoever s/he ends up being) might have an easier time getting to 270 even if s/he were to win the popular vote in Pennsylvania and obtain less than the full 20 votes from that state.

In other words, the reasons behind the Pennsylvania plan are quite plainly partisan.  If you doubt this, consider that, at least at last report, not a single Democrat legislator in the state has embraced the plan.

Partisan changes to voter rules—especially partisan changes that move us away from one-person, one-vote—are the worst kind of changes to make.  This is why some people are troubled by recent voter ID laws that arguably impose unduly stringent ID requirements; critics feel these laws are motivated by partisan desires to reduce the voice and vote of certain demographic groups that may skew Democratic.  This is also why, as I’ve written, if the so-called National Popular Vote Compact is to succeed, it must be understood (as I think it should be understood) as being neutral as to its effects on the two parties.

Nor is Pennsylvania the only place where partisan shenanigans seem to be at play.  In Nebraska today, Republican officials are proposing that their state change its rules (which currently embrace a district-by-district approach, as discussed above) to move into the mainstream of other states and allocate its five electors on a winner-take-all basis.  That is, Nebraska Republicans want their state to move in the opposite direction from the Pennsylvania proposal!

If the motive for this move were simply to maximize the voice of the State of Nebraska, and to do what almost all other states have found to be rational, that would be one thing.  But the timing and other circumstances surrounding the proposed Nebraska change suggest that it is, in fact, an effort to deprive President Obama of the one elector he is likely to gain in the state, for winning the Omaha congressional district.  Nebraska is a very Red state, one in which Obama is almost certain to lose the statewide vote.  And some Republicans in state government object to the fact that he might win one of the state’s five electors, as he did in 2008.

One thing these partisan maneuverings suggests is that changes in electoral college allocations that are done by some but not all states, and ones that are done to take effect in the short run (when their partisan ramifications can be known) rather than implemented only down the road (when the implications for the two parties are harder to predict) are particularly dangerous.

Bad Business, But Not Illegal?

None of this suggests, of course, that what Republicans seek to do in Pennsylvania and Nebraska is unconstitutional.  Unfair, manipulative, and even sleazy does not equate to unconstitutional.

Article II of the Constitution gives states wide latitude to select and allocate their presidential electors in any manner their state legislatures determine.  True, in Bush v. Gore, the Supreme Court said that if a state chooses to have a citizen election to pick electors, then it has to treat all voters in the state equally to comply with the Fourteenth Amendment.  But no one thinks that allocating electors on a district-by-district basis invariably violates Bush v. Gore.  In other words, there don’t seem to be strong arguments that current practice in Maine and Nebraska violates the Fourteenth Amendment.

One could plausibly argue, however, that the real message of Bush v. Gore is that a state cannot treat its voters differently from each other when the reasons for the differential treatment are partisan.  That is why the disuniformity in the judicial recount rules being used in various counties in Florida in 2000 caused constitutional problems, but the different kinds of ballots and voting machines used in the various counties in that same election did not; the differential recount rules arguably were being manipulated for partisan reasons, whereas the differential equipment and ballots across the state were simply products of historical development and funding constraints.

If this is, indeed, the right way to read Bush v. Gore, then one might argue that it is constitutionally problematic for Pennsylvania to treat persons differently depending on which congressional district they live, if the reason for adopting the district-by-district approach is partisan.

But I myself have been somewhat critical of the reasoning in Bush v. Gore, and have cautioned against reading it too broadly (in the context of the California gubernatorial recall election in 2003), and so I think the best thing to do with Bush v. Gore is to let it lie (and hopefully wither).  This seems especially prudent given that a majority of the current Supreme Court is unlikely to read Bush v. Gore in the way I suggest above.

Thus, there may be no federal “court” in which the Pennsylvania proposal can be invalidated.  (Remember, too, that many Justices on the Supreme Court found no problem with the aggressively partisan way Pennsylvania drew its federal legislative districts in an equal protection challenge in 2004, in part because Congress has oversight power with respect to congressional districts.)

All Americans Have an Interest in What Happens in Pennsylvania

But there is, of course, also a court of public opinion.  And the Pennsylvania proposal should be getting hammered in that forum, by fair-minded people of both parties.  And not only by folks in Pennsylvania.

Just as Arizona’s immigration policies have national implications (and thus have generated national support, criticism, and calls for boycotts), so too Pennsylvania’s (and Nebraska’s) electoral college policies have spillover effects for the rest of us, and so are properly a target of national conversation and reaction.

Finally, machinations like the ones we are witnessing these days should and may add steam to the National Popular Vote Compact movement (see here for more background).  If the party in control in each state is tempted every four years to consider rewriting election laws with an eye to the likely effects on the next presidential election, then a system in which in voters across the country are guaranteed to be treated identically would seem to look better and better.

Posted in: Election Law