Three Strategies to Block the Gerrymandering of the Electoral College
As Republican National Committee chairman Reince Priebus promotes one of the most blatant assaults on democracy in modern times—a scheme to gerrymander the Electoral College so that the loser of the popular vote could win key states and the presidency—the number-one question from frustrated citizens is: What can we do about it?
After so many assaults on voting rights and the electoral process itself have been advanced, it is easy to imagine that Priebus, Karl Rove and their team could get away even with so audacious an initiative as the rigging of presidential elections.
Priebus is counting on precisely that cynicism, as well as the neglect of the story by major media, to enable the plan to have Republican legislatures and governors in key swing states—Florida, Michigan, Ohio, Pennsylvania, Virginia and Wisconsin—arrange for the distribution of electoral votes not to winners of the popular vote statewide but to the winners of individual congressional districts. Because of the gerrymandering of congressional district lines, the scheme would in 2012 have shifted the circumstance so that, in Pennsylvania for instance, the losing candidate, Republican Mitt Romney, would have won the overwhelming majority of the state’s electoral votes.
Under at least one scenario entertained by Priebus and his minions, Romney’s 5 million–vote loss of the popular vote nationally still would not have prevented him from assuming the presidency.
Impossible? Hardly. Because of gerrymandering and the concentration of Democratic votes in urban areas and college towns, a 1.4-million vote majority for Democrats in congressional races nationwide in 2012 was converted into Republican control of the US House and gridlocked government.
So can Priebus be stopped? It’s possible. But democracy advocates need to move fast, and smart.
What to do?
1. “NAME AND SHAME” THOSE WHO WOULD RIG ELECTIONS
Because election rules are often arcane, those who write them have an advantage. If they move quickly and quietly, they can “fix” the system to their advantage.
Priebus made a mistake several weeks ago when he spoke openly about the Electoral College scheme, announcing: “I think it’s something that a lot of states that have been consistently blue [Democratic in presidential politics] that are fully controlled red [in the statehouse] ought to be considering.”
When The Nation began writing several weeks ago about the Priebus plan, and specific efforts in swing states, the stories went viral. Social media matters in this struggle. So, too, does the attention coming from television and radio hosts such as MSNBC’s Ed Schultz, Democracy Now!’s Amy Goodman and Thom Hartmann.
The attention “names and shames” Republicans who are implementing the Priebus plan in states such as Virginia. But it also puts pressure on Republicans who are considering doing so. Significantly, when Florida legislative leaders were asked by The Miami Herald about the proposal, the biggest swing state’s most powerful Republicans scrambled to distance themselves from the anti-democratic initiative. Florida House Speaker Will Weatherford said, “To me, that’s like saying in a football game, ‘We should have only three quarters, because we were winning after three quarters and the beat us in the fourth. I don’t think we need to change the rules of the game, I think we need to get better.”
Florida Senate President Don Gaetz was similarly dismissive. “I think we should abolish the Electoral College but nobody in Washington has called to ask for my opinion,” said Gaetz. “If James Madison had asked me, and I had been there, I would have said a popular vote is a better way to do it.”
2. ENGAGE IN THE DEBATE AND OFFER A POPULAR-VOTE ALTERNATIVE
Priebus and his allies will claim that assigning electoral votes via gerrymandered congressional districts gives more Americans a voice in the process—even though that “voice” could allow a minority to claim a state and the presidency.
The right response is to highlight the anti-democratic character of the Electoral College and to push for a national popular vote. This will require a constitutional amendment. That takes work. But the process is in play. States across the country have endorsed plans to respect the popular vote that are advanced by FairVote: The Center for Voting and Democracy.
“The very fact that a scenario [in which a rigged Electoral College allows a popular-vote loser to become president] is even legally possible should give us all pause,” argues FairVote’s Rob Richie. “Election of the president should be a fair process where all American voters should have an equal ability to hold their president accountable. It’s time for the nation to embrace one-person, one-vote elections and the ‘fair fight’ represented by a national popular vote. Let’s forever dismiss the potential of such electoral hooliganism and finally do what the overwhelming majorities of Americans have consistently preferred: make every vote equal with a national popular vote for president.”
Understanding, talking about and promoting the National Popular Vote campaign is an essential response to every proposal to rig the Electoral College. It pulls the debate out of the weeds of partisanship and appeals to a sense of fairness in Democrats, independents and responsible Republicans.
3. MAKE GERRYMANDERING AN ISSUE
The assignment of electoral votes based on congressional district lines is not unheard of. Two smaller states—Nebraska and Maine—have done it for years. But this approach with gerrymandering schemes that draw district lines to favor one party has the potential to dismantle democracy at the national level.
The courts have criticized gerrymandering, and even suggested that there may be instances where it is unconstitutional. But they have been shamefully lax in their approach to the issue—at least in part out of deference to the authority extended to individual states when it comes to drawing district lines. But when gerrymandering threatens the integrity of national elections and the governing of the country, this opens a new avenue for challenging what remains the most common tool for rigging elections.
It is time for state attorneys general who have track records of supporting democracy initiatives, such as New York’s Eric Schneiderman, and state elections officials, such as Minnesota’s Mark Ritchie, to start looking at legal strategies to challenging the Priebus plan in particular and gerrymandering as it influences national elections. This really is an assault on the one-person, one-vote premise of the American experiment. And retired Supreme Court Justice John Paul Stevens, among others, is advocating for a renewed push on behalf of fair elections.
“[It] goes back to the fundamental equal protection principle that government has the duty to be impartial. When it’s engaged in districting it should be impartial,” Stevens explained in a recent interview. “Nowadays, the political parties acknowledge that they are deliberately trying to gerrymander the districts in a way that will help the majority.”
This, argues Stevens, is “outrageously unconstitutional in my judgment. The government cannot gerrymander for the purpose of helping the majority party; the government should be redistricting for the purpose of creating appropriate legislative districts. And the government ought to start with the notion that districts should be compact and contiguous as statutes used to require.”
Stevens says the courts, which often intervene on voting rights cases involving minority representation, and in cases where states with divided government cannot settle on new district lines, should engage with the purpose of countering gerrymandering.
“If the Court followed neutral principles in whatever rules they adopted, the rules would apply equally to the Republicans and Democrats,” says the retired Justice, a key player on voting and democracy issues during his thirty-five-year tenure on the High Court. “I think that line of cases would generate a body of law such as the one-person, one-vote cases that would be administered in a neutral way. This is one of my major disappointments in my entire career: that I was so totally unsuccessful in persuading the Court on something so obviously correct. Indeed, I think that the Court’s failure to act in this area is one of the things that has contributed to the much greater partisanship in legislative bodies…”
Justice Stevens is right. That partisanship has moved from gerrymandering the state lines and US House lines to gerrymandering the presidential vote. The moment is ripe for a constitutional intervention.
© 2012 The Nation