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
The Majority Leader of the Pennsylvania Senate wants to change the way that the state allocates its electoral votes in presidential elections. Instead of the typical "winner-take-all" approach, he would like to adopt the system used by Maine and Nebraska, where the winner of each congressional district gets the electoral vote of that district. If such a change were implemented, then it would probably shift about 10 electoral votes to the Republicans. No Republican has carried Pennsylvania since 1988 (George H.W. Bush), but the GOP always wins many congressional districts in the state. In a happy coincidence, both houses of the State Legislature are controlled by the Republicans. And the Governor is a Republican. So this change may well happen.
Now there is nothing wrong with changing the way that a state awards electoral votes. Moreover, there is a good argument that the Maine/Nebraska system is more equitable. The problem is that changing the rules when you know which party will benefit is not fair. Of course, it is possible that the Republican candidate will win Pennsylvania in 2012 and that any attempt by the state party to game the system will backfire. But this move could set off an effort in other states that reliably vote one way for President but a different way at the state level to change to a proportional electoral vote system. And then maybe they will change back a few years later when party control in the state changes. It's not a pretty picture. Posted
by Gerard N. Magliocca [link]
And the word out of Nebraska is that it is now considering a change to winner-take-all. The common thread: It, too, is run by Republicans. And Pres. Obama won the electoral vote in NE-2 in 2008.
Gerard:Now there is nothing wrong with changing the way that a state awards electoral votes. Moreover, there is a good argument that the Maine/Nebraska system is more equitable. The problem is that changing the rules when you know which party will benefit is not fair.
Say again? Any time you change election rules, one party is likely to gain over the other. Either the rule change is or is not equitable.
The Dems have no equitable basis to challenge the PA change from a first past the post system to a proportional system based upon congressional district because they have been championing this system in NE and ME and a similar plan to proportionally divide up electoral votes according to the national popular vote.
FWIW, I personally prefer the traditional first past the post system and the electoral college because it forces presidential candidates to pay attention to smaller states like my Colorado.
The GOP plan may be too clever by half. The plan is being considered not only in PA, but also in several midwest states, all of which Obama is currently losing on the way to a Carter-level wipeout. The GOP plan may give Obama a bit less than half of the EVs in these states.
If the electoral vote was proportional then sure it would be pretty fair, except for rounding errors, and if every state did it. but this isn't that. Then again at this late date what difference does it make who the president is beyond tone and style?
I suppose it depends about what you think about gerrymandering more generally. If you say, "Well, that is just a part of politics that has a long pedigree," then what Pennsylvania wants to do is fine. But if you think gerrymandering is a problem, then you would take the opposite view. I guess my view is that at a minimum we should not be expanding that practice to the Electoral College.
If the electoral votes were proportional to the amount of popular votes, that would be laudable. Having it linked to congressional districts, however, is an awful idea and anti-democratic (small d, this system would probably benefit the Democrats in my very gerrymandered state). The sooner we elect the President by nationwide popular vote, the better.
I am not at all sure that gerrymandering congressional districts necessarily translates into gerrymandering for the presidential race under the GOP plan as there is no direct correlation between the two types of races. There has been a great deal of ticket splitting between Congress and the President over the past generation.
It would be interesting to learn if the PA GOP legislature is taking both kinds of races into account in drawing their redistricting maps.
This appears to me to be a step away from gerrymandering, or anyway something similar to it. Granted, it's a step away taken at a time when it appears the gerrymandering analogue benefits the other party, but it's still a step in the right direction.
Maybe when the parties swap control it would be changed back. That would be an appropriate time to complain. Not now. They're doing the right thing, and not even for the wrong reason; The victim of an injustice is entitled to act to remedy it.
If it's about justice, divide the electoral votes proportional to the popular vote in the state. Making anything dependent upon congressional districts lets local interests block the will of the people entirely just by redrawing lines. We need less political gaming in the election process, not more.
Actually, if you look at the maps you'll notice that Democrats are much more packed together than Republicans, in part because of the 1982 amendments to the voting rights act and in part because of a more urban tilt. There are very few Republican districts above 65%, and quite a few Democratic ones. The Maine-Nebraska plan, if it had been applied to every state, would have resulted in Republicans winning the electoral college while losing the popular vote in 1960, 1976, and 2000. The 1976 case is a particularly egregious case, since Carter won the national popular vote by 2 percentage points. I'd need to check the math, but I believe that in every election since the 1960's it would increase the number of electoral college votes going to the Republican.
This appears to me to be a step away from gerrymandering, or anyway something similar to it.
Uh, no. Under the current system, the partisan process by which district lines are drawn is completely irrelevant to the Presidential election process. This change would make those partisan gerrymanders extremely significant.
The Electoral College is at least defensible on the basis that states are sovereign units. But congressional districts are just arbitrary divisions created through a political process.
I agree that the demographics of the Dem Party and current voting rights law makes it easier for the GOP to gerrymander. The Dems are primarily an urban party disproportionately made up of ethnic and racial minority groups. The GOP can then make urban and minority majority districts without engaging in really egregious map making while accomplishing the voting rights mandates to create racial electoral ghettos.
I'd like to add another variable to the mix. To the extent that proportional allocation of electoral votes would make third party or independent candidacies more effective, it would thereby increase the odds that no candidate gets a majority of the electoral votes. That would leave the election of the President up to the House of Representatives voting by unit rule.
The part about weakening the two party duopoly is a very, very good thing. But the part about unit rule in the House completely undoes that advantage. It's the exact opposite of proportionality.
What's the population of Maine and Nebraska? What's the pop. of PA? The result of the proposed change is the neutering of the PA vote. The odds of a republican winning the electoral college and losing the popular vote would go up, a lot.
No it would not be equitable, it would simply be legal.
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