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

Updated:
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

  • Ted Harvatin

    The first sentence of your article provides the key phrase to the true nature of your objection: being advanced by Republican elected officials. Who do you think you are fooling?

  • mvy

    And in Maine, the only other state beside Nebraska to use
    the district method, earlier this year, Republican leaders proposed and passed
    a constitutional amendment that, if passed at referendum, will require a 2/3rds
    vote in all future redistricting decisions. Now they want to pass a
    majority-only plan to make redistricting in their favor even easier.

    While I agree with most of this column, I do not agree that the current  48 state “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.”The current system of electing the president ensures that
    the candidates, after the primaries, do not reach out to all of the states and
    their voters. Candidates have no reason to poll, visit, advertise, organize,
    campaign, or care about the voter concerns in the dozens of states where they
    are safely ahead or hopelessly behind. The reason for this
    is the state-by-state winner-take-all method (not mentioned in the U.S.
    Constitution, but since enacted by 48 states), under which all of a state’s
    electoral votes are awarded to the candidate who gets the most votes in each
    separate state.

     

    Presidential candidates concentrate their
    attention on only the current handful of closely divided
    “battleground” states and their voters.  There is no incentive for them to bother to
    care about the majority of states where they are hopelessly behind or safely
    ahead to win.  9 of the original 13 states are considered “fly-over” now. In
    the 2012 election, pundits and campaign operatives agree already, that, at
    most, only 14 states and their voters will matter. None of the 10 most rural states will matter, as usual.  Almost 75% of the country will be
    ignored –including 19 of the 22 lowest population and medium-small states, and
    17 medium and big states like CA, GA, NY, and TX.  This will be more obscene than the 2008
    campaign, when candidates concentrated over 2/3rds of their campaign events and
    ad money in just 6 states, and 98% in just 15 states (CO, FL, IN, IA, MI, MN,
    MO, NV, NH, NM, NC, OH, PA, VA, and WI).  Over half (57%) of the events were in just 4
    states (OH, FL, PA, and VA).  In 2004,
    candidates concentrated over 2/3rds of their money and campaign visits in 5
    states; over 80% in 9 states; and over 99% of their money in 16 states. 

                                            

    2/3rds of the states and people have been merely spectators
    to the presidential election. That’s more than 85 million voters ignored. 

     

    Voter turnout in the “battleground” states has
    been 67%, while turnout in the “spectator” states was 61%.

                                  

    Policies important
    to the citizens of ‘flyover’ states are not as highly prioritized as policies
    important to ‘battleground’ states when it comes to governing.

    • Dylan Hamilton

      By the current approach being eminently reasonable, I presume he only meant for those states who (without a winner take all approach–granting electors based on district votes, for example) would be deemed as largely insignificant by presidential candidates.  Michigan, for example, has very few districts that are clearly Democrat-leaning districts despite the state’s popular vote having gone for Obama in 2008.  

      Therefore, in 2008, it is possible that if Michigan had granted electors based on winning a majority (or plurality) vote in each congressional district, it is very possible that Obama (and, therefore, his opponent) would not have paid as much attention (and as many promises) to the state.  This is because Obama may have done the math and decided it was only feasible to win in the high-population density, democratic leaning districts (near Detroit and Lansing, for example), and lose a majority of the smaller or historically conservative districts (near Grand Rapids, the rest of the state, really).  Thus, Obama may have decided that splitting the districts in MI would have happened either way, and if he lost one or two by not being there, it would be largely insignificant.

      Hence, Michigan (as well as states like OH, FL, etc.) may see the current system as favoring them instead of CA/NY/TX, and they may see the current system as eminently reasonable because it garners them attention and promises.  At least that’s what I assume he meant.

  • mvy

    The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).Under National Popular Vote, every vote, everywhere, would be politically relevant and equal in every presidential election. Every vote would be included in the national count. The candidate with the most popular votes in all 50 states would get the 270+ electoral votes from the enacting states. That majority of electoral votes guarantees the candidate with the most popular votes in all 50 states wins the presidency.National Popular Vote would give a voice to the minority party voters in each state and district (in ME and NE). Now their votes are counted only for the candidate they did not vote for. Now they don’t matter to their candidate.With National Popular Vote, every vote, everywhere would be counted for and directly assist the candidate for whom it was cast.In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). A Washington Post, Kaiser Family Foundation, and Harvard University poll shows 72% support for direct nationwide election of the President. Support is strong among Republican voters, Democratic voters, and independent voters, as well as every demographic group surveyed in virtually every state surveyed in recent polls in closely divided Battleground states: CO– 68%, IA –75%, MI– 73%, MO– 70%, NH– 69%, NV– 72%, NM– 76%, NC– 74%, OH– 70%, PA — 78%, VA — 74%, and WI — 71%; in Small states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE –75%, ME — 77%, NE — 74%, NH –69%, NV — 72%, NM — 76%, RI — 74%, and VT — 75%; in Southern and Border states: AR –80%, KY — 80%, MS –77%, MO — 70%, NC — 74%, and VA — 74%; and in other states polled: CA — 70%, CT — 74% , MA — 73%, MN – 75%, NY — 79%, WA — 77%, and WV- 81%.Most voters don’t care whether their candidate wins or loses in their state or district… they care whether he/she wins the White House. Voters want to know, that even if they were on the losing side, their vote actually was directly and equally counted and mattered to their candidate. Most Americans consider the idea of the candidate with the most popular votes being declared a loser detestable.The bill has passed 31 state legislativ­e chambers, in 21 small, medium-sma­ll, medium, and large states, including one house in AR, CT, DE, DC, ME, MI, NV, NM, NY, NC, and OR, and both houses in CA, CO, HI, IL, NJ, MD, MA, RI, VT, and WA. The bill has been enacted by DC (3), HI (4), IL (19), NJ (14), MD (11), MA (10), CA (55), VT (3), and WA (13). These 9 jurisdicti­ons possess 132 electoral votes — 49% of the 270 necessary to bring the law into effect.NationalPo­pularVote

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  • Every system has its problems.  Even under the direct popular vote system, it is possible that a candidate could win all 50 states, get swamped in DC, and lose the election.Changing the Pennsylvania system could backfire on the GOP – Imagine the nominee having 252 Electors without PA and Obama having 266.  The GOP nominee wins PA, but loses 8 districts.  Instead of winning 272-266 under current rules, the nominee would lose 274-264.  Put it this way – they pushed the 22nd because of FDR and the first victim was Ike.