an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Presidential Gerrymandering: The Problem and the Meta-Problem
Following up on Gerard’s post, I agree that there is nothing wrong with states changing the way they allocate their electoral votes in presidential elections. But the problem of partisans switching the rules around for short-term political reasons is only the beginning of what is problematic about the plan now being floated in Pennsylvania to allocate electoral votes by Congressional district.
Thomas Jefferson wrote in a letter in 1800 that allocating electoral college votes by states would be fine, and doing it by congressional districts would be as good or better—“it is merely a question whether we will divide the United States into sixteen or one hundred and thirty-seven districts” (today, that’s 50 or 435)—but that a mix of the two would be a problem. It would “give a result very different from what would be the sentiment of the whole people of the United States, were they assembled together.” These comments reflect a complete innocence of the technologies of modern partisan gerrymandering. Today, presidential races conducted only in “swing” states are narrow and exclusive enough. Presidential races conducted only in the even narrower confines of “swing” Congressional districts would be even worse, particularly in races like 2012 that immediately follow a redistricting cycle, when Congressional districts are as gerrymandered as they will be for a decade. (Population shifts generally leave more districts competitive by the end of a decade than at the start.)
Even so, Jefferson was right that a hybrid electoral college mixing statewide-winner-take-all with congressional-district-based rules—i.e. what we would have as more states go the way of Maine and Nebraska—almost certainly increases the chances of an undemocratic result, defined in his terms (“a result very different from what would be the sentiment of the whole people of the United States”). Specifically it almost certainly increases the chances that even in a two-candidate race, most Americans could vote for one candidate, and the winner would be the other.
And this leads me to the more concerning meta-problem that this Pennsylvania initiative reflects. Before the 2000 election, there was a great deal of disagreement about whether the electoral college favored one party or the other, in comparison to the obvious democratic baseline, a national popular vote. In those more innocent days, some pundits theorized that Bush was likely to win the popular vote and lose the electoral college—the reverse of how things turned out. (Some suggested that Gore might not be a legitimate leader if he were to win under such circumstances; there were many questions.) Uncertainty about the direction, if any, of the partisan tilt of the electoral college allowed members of both parties, for a time, to agree with Jefferson that the point of a Presidential election, in the end, is to produce a result that reflects the sentiment of “the whole people of the United States.” Now we are living through a different and more partisan time. Regardless of the merits of the Pennsylvania plan, the very fact that the majority leader of the Pennsylvania state senate would propose it reflects a different configuration of political sentiments and democratic norms: no longer do we all agree that the national popular vote confers legitimacy. Instead, some openly propose moves to shore up their party’s chances of winning the electoral vote regardless of the popular vote. If this change is real, it suggests that the idea that the President is there to represent all the people of the United States may be in trouble. And that could make serious discussions about electoral college reform very difficult. Posted
by Joey Fishkin [link]
Now that we have the technological capability to figure out "the sentiment of the whole people of the United States" there is no reason - behind the veil of ignorance - not to do so.
Not only is this troubling because it will make electoral college reform more difficult, but this observation should really cause us to question the very existence of a Presidentialist system. If we're so partisan that it is impossible for one person to represent all the people, as seems likely for the (foreseeable) future, then perhaps it's time to reform our system to reflect that. Of course, this idea won't get much farther than a comment on a blog, but oh well.
Incidentally, on a practical note, I do think you're right that it makes electoral college reform more difficult, but normatively, I think it immensely strengthens the case for the National Popular Vote Compact (which I've supported anyway for a long time).
I see the Pennsylvania Republicans' suggestion as a sort of quantum theory, or aliquot postulate. If the net effect of the innovation PA Reppublicans are promoting would follow in the spirit of Reynolds' principle of 1-person, 1-vote; I would support it. However, as a commenter in the prior thread illustrated, the quantized tranches only engage in some of the most egregious offenses against the Reynolds standard, the sort which Scotus has dispatched with disdain since Reynolds was argued in the zenith of the early modern civil rights litigation era, 1964. The PA ploy is a partisan move to dilute Democratic party registration advantage.
I suppose that there is a way of viewing our government structure as a democratically ratified system of oligarchy, although the founding documents self-consciously circumvent addressing that fundamental verity.
During the Lulac v Perry cases which were brought to court following the 2000 TX gerrymander, I examined US Census bureau family income data for some of the most disputed redistricting boundaries. Even at the pecuniary stratum it was perhaps revealing that the households in many geographic areas which were contested harbored average median incomes of ~15k/year. Those are the chips in the gerrymander game, places where the poor dwell. Unemployment statistics like those discussed in reports just prior to labor day last week, painted a cheery image of average family incomes all over the US hovering in the $40,000.'s-$50,000.s. On the ground where the gerrymander boundaries artwork is drawn, the realities are much more stark.
I wonder, as a hypothetical, how the modern Democratic Party would fare in elections if, as in Jefferson's day, titled landholders were the only voters permitted to have a voter ID and vote. Or, taking the comparison beyond fair limits, whether only mortgage banking entities who hold homes' titles would be permitted to cast a vote in lieu of the nominal owner of property, given modern corporations' ascendancy in many legal spheres.
Today, presidential races conducted only in “swing” states are narrow and exclusive enough. Presidential races conducted only in the even narrower confines of “swing” Congressional districts would be even worse, particularly in races like 2012 that immediately follow a redistricting cycle, when Congressional districts are as gerrymandered as they will be for a decade.
Presidential campaigns have been conducted in swing localities within states since politicians could identify swing voters. Those localities are where the statewide races are decided.
Moving from a first past the post system to a congressional district system of allocating EVs in a state with gerrymandered districts may actually expand the number of swing localities in which a candidate must campaign.
Gerrymandering is drawing districts where the favored party has a narrow lead in many districts, while the opposition is herded into a few districts where they have heavy majorities.
The tradeoff with gerrymandering is that, the more districts in which the favored party attempts to create a partisan lead, the narrower that lead becomes as the voters for the favored party become increasingly diluted.
The reports of the proposed PA GOP redistricting maps suggest that the GOP is getting very aggressive and trying to create a 2:1 district advantage for themselves. This suggests that the advantage in those districts is narrow indeed the GOP may in fact be creating a series of GOP leaning swing districts.
Thus, the combination of the GOP gerrymander and their plan to allocate EVs by congressional district may in fact expand the number of swing localities i which the presidential candidates will campaign.
What would have been the electoral vote result in 2000, if one electoral vote was allocated to the winner of each Congressional district, with two votes to the winner of each state (Florida's 2votes to Bush)?
Isn't this a bit naive? There is a significant conservative plurality in the US who believe presidential elections often don't produce legitimate office holders and have zero problem using every possible means necessary to overcome that perceived flaw by any means necessary.
These people are obsessed with the meta-problem of future of The Nation. Anything less than an all powerful American nation is the only thing that matters and gerrymandering or any of the dozens of well worn tactics to suppress the vote are not a meta problem but simply a tactic to correct the meta problem they perceive which is an existential problem for The Nation and for some for all people of the world, under God.
You know Chris Matthews the erstwhile Democrat, or what passes for such now said before the 2000 election, "Al Gore, knowing him as we do, may have no problem taking the presidential oath after losing the popular vote to George W. Bush."
Politicians forget that politics is a pendulum. The PA plan will help the republicans... and if it does the Dems will try it too.
If this keeps up, opponents of the electoral college will get their wish since if electoral college results are doled out proportional to congressional representation, rather than statewide winner-take-all, we will have a system that will effectively also be proportional to the popular vote.
Sure, states might switch back and forth, but the political stars have to be aligned to get legislation signed as both the state house, senate, and governor have to be united. And once proportional representation is instituted, who is going to disenfranchise those districts to switch back to winner take all?