Posted August 17, 2007 by J. Gerald Hebert and Jesse Grauman

Electoral College "Reforms" Deserve A Failing Grade

Over the past few weeks, members of both political parties have made efforts to tilt the scales in the 2008 elections by gaming the Electoral College.  First Democrats, and then Republicans, sought to change the way electoral votes are allocated in certain states in order to give their parties an advantage.  Both major parties owe it to themselves, and to the nation, to distance themselves from these shenanigans and to commit to opposing any such efforts.

Democrats in North Carolina fired the first salvo in this ill-advised battle.  Less than two weeks ago, its Democratic-controlled legislature was on the verge of passing a bill to allocate one electoral vote for President to the winner of each of the state’s 13 congressional districts, with the two remaining votes going to the winner of the state, rather than the winner-take-all system that is currently in place in all but two states.  North Carolina last gave its electoral votes to a Democrat when it voted for Jimmy Carter in 1976, and prognosticators place it squarely in the “safe Republican” column for 2008.  Had the legislation passed, it would have essentially guaranteed Democrats a few of the state’s electoral votes, making it slightly easier for the party to win the White House. 

The North Carolina scheme, though, was nothing compared to what Republican lawyer Thomas Hitalchik has planned in California.  Hitalchik is the founder of “Californians for Equal Representation,” a name that would make Orwell proud.  As first reported in the New Yorker by Hendrik Hertzberg, Hitalchik recently filed papers indicating that he is planning a ballot initiative to allocate California’s 55 electoral votes by Congressional district.  If it were to succeed, such a proposal would have a seismic effect on the election, forcing Democrats to pull off a near-clean sweep of the “battleground states” in order to win the presidency.

There are, in fact, two states – Maine and Nebraska – that divide their electoral voters by Congressional district.  However, in every election since they have adopted those systems, the presidential candidate who won the state also won each district, so the system has had no practical effect.  In addition, Maine and Nebraska have only nine electoral votes between them and are unlikely to affect the national outcome.

Reportedly, North Carolina Democrats pulled their bill after national Democrats feared they would face accusations of hypocrisy when opposing Hitalchik’s California plan.  If so, it’s the second time in less than four years that Democrats have abandoned an Electoral College scheme for less than pure reasons.  In 2004, Colorado Democrats supported a ballot referendum to divide the state’s nine electoral votes in proportion to its popular vote – but withdrew their support when it looked like John Kerry had a chance to win the state.  The California plan, on the other hand, is still very much on the table.  And its prospects are scary enough that Democrats have been forced to enlist the help of financial heavyweights like Thomas Steyer, a top hedge fund manager, and Steve Bing, a film producer. 

It should not take such a brazen attempt to make political actors realize that gaming the Electoral College is wrong.  The Electoral College has its defenders and detractors.  Those who favor it argue that it preserves federalism and ensures that Presidential candidates appeal to rural as well as urban voters, small states as well as large ones.  On the other hand, critics argue that it is a relic from bygone times, that it gives a disproportionate amount of clout to smaller states, and that a President with the power to send the nation’s troops into battle should be one who is guaranteed to have been elected by a popular majority.

One thing, though, is clear – Electoral College reform cannot occur in a piecemeal fashion.  If Electoral College reform is going to take place at all, it needs to be done across the board – nationally – or not at all.  Initiatives like those in North Carolina and California risk turning our electoral system into a farce.

Imagining the Possibilities

The Constitution explicitly grants each state the power to choose the method by which it picks presidential electors.  That’s what would enable states to enact these proposed changes.  There are questions as to whether the California plan would be constitutional, since the Constitution specifically grants state legislatures the power to choose the method of appointing electors, and the proposed change in California would be done by ballot initiative.  It is also possible that the California plan might violate the Voting Rights Act by diluting minority votes and by causing a retrogression in minority voting power, since minority voters in California overwhelmingly support Democrats, who would be hurt by a switch to a district-based Electoral College.  It’s unclear, though, whether the Voting Rights Act could trump a state’s constitutional power to choose its electors. 

But let’s assume that the California plan would pass constitutional muster.  How might Democrats answer?

One response would be for North Carolina to enact its plan to divvy up the state’s electoral votes by district.  But it could go one step further – to offset the effects of California, the North Carolina legislature could pass a law giving itself the power to choose presidential electors.  Such a law would almost certainly be constitutional; in our nation’s infancy, a number of states chose electors this way.  For good measure, Democrats might be able to do the same thing in Louisiana, another state whose electoral votes (9) are expected to go to a Republican in 2008 but that currently has both a Democratic governor and majority in its House and Senate.  Republicans, who currently don’t hold a legislative majority in any “safe” Democratic states, could respond by trying to pass a California-style ballot initiative in another Democratic stronghold – Massachusetts with its 12 electoral votes – though they would not be able to do it in time for the 2008 election because of Massachusetts’ laws regarding ballot initiatives.  (In addition, such an initiative would have to be for a popular-vote division of electoral votes, like the Colorado proposal, since Democrats hold a reliable majority in all of Massachusetts’ districts.)  Democrats could fire back with initiatives in states like Idaho (4 votes), Montana (3 votes), North Dakota (3 votes), Oklahoma (7 votes), South Dakota (3 votes), and Utah (5 votes).  (In case Democrats were wondering, Texas, with its 34 reliably Republican electoral votes, does not have a ballot initiative process, and its majority-Republican legislature is not about to approve changes to its electoral vote allocation any time soon.)

Our goal is not to offer suggestions to the political parties on how they might game the Electoral College system for political gain.  It is to illustrate that once any party seeks to tilt an election by changing the rules, it opens a Pandora’s box of nefarious tricks, schemes, and machinations that threaten to undermine our democracy.

With Florida’s election controversy in 2000 still casting a large shadow over the upcoming elections, imagine the outrage if a partisan Electoral College scheme caused a candidate to lose an election that he or she would have otherwise won.  In 2000, while some Americans believed the election was “stolen,” there were no serious questions as to President Bush’s legitimacy or authority to govern.  But if a President is elected as a result of an unfairly fixed Electoral College, America could very well have its own Orange Revolution.

Why a District-Based Electoral College Makes No Sense

It’s also worth noting that even if a district-based system were enacted nationally, it would hardly be an improvement over our current system.  A comprehensive analysis [see pp. 176-185] by National Popular Vote Inc. outlines several reasons why: 

First, an electoral-vote-by-district system would simply replace battleground states with battleground districts.  Most districts would remain noncompetitive, due in large part to systematic gerrymandering.  Thus, Presidential candidates might campaign in a wider geographical area than they do now, but most of their campaigning would be illusory, since only battleground district voters would matter.  California is a striking example of this phenomenon: in 2004, a grand total of 5 districts out of 53 were decided by less than 10 percent in the Presidential vote tally.  Only those districts, not the entire state, would receive attention under a district-based allocation of electoral votes.  Thus, while supporters of the district-based system claim that it would give Californians a greater voice in the Presidential race, in reality, only a small fraction of the state would demand the attention of the candidates.  Indeed, because the distribution of most of the state’s electoral votes would be a foregone conclusion, California itself would be far less important to Presidential candidates – and to Presidents – under the proposed system than it is today.

Second, dividing votes by districts would not necessarily approximate the nationwide popular vote any better than the current system.  In fact, in 2000, when Al Gore won the popular vote but lost in the Electoral College, President Bush would have received 17 more electoral votes in a district-based system than he did under the winner-take-all system.

Finally, a district-based system would give states even more of an incentive to gerrymander than they already have.  As it is, both parties have sought to increase their odds of success in Congress and in state legislatures by drawing district lines to their advantage.  In 2004, only 23 Congressional races – 5% of the total – were decided by less than 10 percent.  Even in 2006 – a year of tremendous voter discontent – only 59 House races – 14% – fell within that margin.  If House districts determine who wins the White House, state legislatures would likely abandon any and all restraints when it comes to gerrymandering, and the nascent movement for redistricting reform would suffer a severe blow.

What the Parties Need to Do

At this point, though, broad arguments about nationwide changes to the Electoral College are beside the point.  The North Carolina and California plans were not hatched out of a desire to launch a widespread movement for reform; they were designed for partisan gain.  That’s why state and national leaders need to oppose any piecemeal attempts to change the way America selects its president.  

In North Carolina, Governor Mike Easley regrettably endorsed the Democrats’ plan before it was withdrawn.  In California, Governor Arnold Schwarzenegger’s office has said only that he is not connected to Hitalchik’s proposal.  The citizens of both states deserve better.  Now that the implications of the proposals have become clear, both governors should firmly denounce any attempts to game the system.

In addition, both DNC Chairman Howard Dean and RNC Chairman Mike Duncan should condemn the plans, and should pledge to jointly oppose – financially, if necessary – any attempts to change the method of Electoral College selection on a state-by-state basis.  It is unfortunate that some state party entities, such as the North Carolina Democratic Party, have been shortsighted in their support of politically motivated plans.  National party leaders, who have the benefit of a broader perspective, should choose a different path.

Finally, for reformers who truly want to change the Electoral College system so it more accurately reflects the national popular vote, there are much fairer ways to do it.  There is, of course, the very difficult route of a constitutional amendment.  There is also a creative solution involving an interstate compact to grant the electoral votes of all states in the compact to the winner of the national popular vote.  The compact would only take effect when passed by enough states to comprise a majority of the Electoral College, thus preventing the partisan, piecemeal approach used in North Carolina and California.  Legislation to join the compact has been adopted in Maryland and is being considered in numerous other states.

Right now, however, the pressing concern is how to deal with partisan power grabs in the guise of reforms.  If both parties are serious about fair elections, they should respond by using their influence to put an end to these games and put the long-term health of our democracy before short-term partisan gains.