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August 23, 2014, 1:17 pm

GOP Electoral strategy devious, yet legal

Republicans’ move to change voting process only one of several plans to derail Dems

 

As Republican state legislators, not only in Pennsylvania but across the country, gear up for the 2012 presidential election, it looks as if they have come up with an unprecedented assault on the U.S. Constitution by changing the Electoral College, which many scholars think could cost President Barack Obama the White House.

The reality is this — it would be completely legal.

Article 1, Section 2 of the Constitutions states: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

In other words, according to the U.S. Constitution the president and vice president are chosen by Electors, under a constitutional grant of authority delegated to the legislatures of the several states and the District of Columbia.

The constitution gives state legislatures the right to change the precise manner by which they create Electors to the will of the state legislatures. It does not define or delimit what process a state legislature may use to create its state college of Electors. Customarily, state legislatures have generally chosen to create Electors through an indirect popular vote, since the 1820s. But as the election year nears, state legislatures are contemplating loop holes.

“What’s going on in Pennsylvania is just a matter of saying … we want our state to help Republicans win the presidency,” said Kyle Scott political science professor at Duke University and author of “Federalism: A Normative Theory and its Practical Relevance.” “But the reason I don’t see it catching on as a natural phenomenon is because not every state has the political makeup of Pennsylvania.”

The problem for Obama is this, because of the Electoral College, the presidential election is a state-by-state struggle, and each state is worth a number of electoral votes equal to the size of the state’s congressional delegation. Keep in mind, the District of Columbia also gets three votes. There are 538 electoral votes up for grabs; the first person to win 270 wins the White House.

“If you implemented something like what’s happening in Pennsylvania in Texas, it would actually be less secure for the Republicans,” said Scott. “Because cities like Houston and San Antonio with large Hispanic populations would primarily vote Democrat. There may be states that transform a little bit, but even a swing state like Ohio wouldn’t advantage either party by adopting such a system.”

In a systematic campaign orchestrated by the American Legislative Exchange Council — and funded in part by David and Charles Koch, the billionaire brothers who bankrolled the tea party — 38 states introduced legislation this year designed to impede voters at every step of the electoral process.

All told, a dozen states have approved new obstacles to voting. Kansas and Alabama now require would-be voters to provide proof of citizenship before registering. Florida and Texas made it harder for groups like the League of Women Voters to register new voters. Maine repealed Election Day voter registration, which had been on the books since 1973.

Five states — Florida, Georgia, Ohio, Tennessee and West Virginia — cut short their early voting periods. Florida and Iowa barred all ex-felons from the polls, disenfranchising thousands of previously eligible voters. And six states controlled by Republican governors and legislatures — Alabama, Kansas, South Carolina, Tennessee, Texas and Wisconsin — will require voters to produce a government-issued ID before casting ballots.

More than 10 percent of U.S. citizens lack such identification, and the numbers are even higher among constituencies that traditionally lean Democratic — including 18 percent of young voters and 25 percent of African Americans.

Taken together, such measures could significantly dampen the Democratic turnout next year — perhaps enough to shift the outcome in favor of the GOP.

As it stands now, each state gets to determine how its electoral votes are allocated. Currently, 48 states and D.C. use a winner-take-all system in which the candidate who wins the popular vote in the state gets all of its electoral votes.

Congressional district maps are adjusted after every census, which are every 10 years. That means Pennsylvania Republicans, who control both the House and the Senate, will get to draw the boundaries of the state’s congressional districts without any input from Democrats. Some of the early maps have leaked to the public, and Democrats expect that the Pennsylvania congressional map for the 2012 elections will have 12 safe GOP seats compared to just 6 safe Democratic seats.

Nebraska and Maine already have the system the Pennsylvania GOP is pushing. So under the Republican plan, if the GOP presidential nominee carries the GOP-leaning districts but Obama carries the state, the GOP nominee would get 12 electoral votes out of Pennsylvania, but Obama would only get eight — six for winning the Democratic districts, and two (representing the state's two senators) for winning the state.

Since Obama would lose 12 electoral votes relative to the winner-take-all baseline, this would have an effect equivalent to flipping a medium-size winner-take-all state — say, Washington, which has 12 electoral votes — from blue to red. And Republicans wouldn’t even have to do any extra campaigning or spend any extra advertising dollars to do it.

“The two states’ (Nebraska and Maine) small electoral vote values mean it’s actually mathematically impossible for a candidate to win the popular vote there but lose the electoral vote” Akhil Reed Amar, a constitutional law professor at Yale University, said to MotherJones.com. “Pennsylvania, however, is a different story: “It might be very likely to happen in (Pennsylvania), and that’s what makes this something completely new under the sun. It’s something that no previous legislature in America since the Civil War has ever had the audacity to impose.”

If Obama has another landslide win, the GOP rule-tinkering might not change the outcome. But given the state of the economy and Obama’s low approval ratings; the election is likely to be close. If the president wins the states John Kerry won in 2004 plus Ohio — otherwise enough to give him a narrow win — changing the electoral vote rules in Pennsylvania alone would swing the election to the Republican nominee.

“This would effectively extend the effect of gerrymandering beyond Congress and to the Electoral College,” Amar said.

It doesn’t necessarily end there. After their epic sweep of state legislative and gubernatorial races in 2010, Republicans also have total political control of Michigan, Ohio and Wisconsin, three other big states that traditionally go Democratic and went for Obama in 2008.

Implementing a Pennsylvania-style system in those three places — in Ohio, for example, Democrats anticipate controlling just 4 or 5 of the state’s 16 congressional districts — could offset Obama wins in states where he has expanded the electoral map, like Colorado, New Mexico, North Carolina, or Virginia.

“If all these Rust Belt folks get together and make this happen, that could be really dramatic,” said Carolyn Fiddler, a spokeswoman for the Democratic Legislative Campaign Committee (DLCC), which coordinates state political races for the Dems.

Democrats would not be able to strike back. The only states that John McCain won where Dems control both houses of the state legislature are Arkansas and West Virginia. West Virginia is too small for splitting the electoral votes to have much effect. That leaves Arkansas, another small state — and one where McCain won every district handily in 2008.

Nor is there anything obviously illegal or unconstitutional about the GOP plan.

“The Constitution is pretty silent on how the electors are chosen in each state,” Karl Manheim, a law professor at Loyola University in Los Angeles, said to MotherJones.com. The Republicans’ strategy “would certainly increase the political advantage of politically gerrymandering your districts.”

So far, Democrats have been fighting back with the argument that switching to allocating electoral votes by congressional district would reduce Pennsylvania’s importance in the presidential race.

“Presidential elections are decided by ‘basically Pennsylvania, Michigan, Ohio and Florida,’ because each is a swing state with a large block of electoral votes up for grabs,” former Pennsylvania governor Ed Rendell said to the Pittsburgh Tribune-Review. That, Rendell said, gives Pennsylvania more pull with presidents of both parties.

But that argument “doesn’t hold much sway with state legislators,” Fiddler said. And if rule changes in Pennsylvania or other Rust Belt states put a Republican in the White House, the president might be more indebted to party leadership there, not less.

“The political solution, if there is one, is going to have to come from getting people outraged about this,” Amar said. “This is not American fair play; it’s a partisan steamroller changing the fundamental rules of the small-d democratic game for purely party advantage; trying to structure the world so that even the person who wins the state loses the state’s electoral vote: That is new under the sun. This is big.”

MotherJones.com and Rolling Stone Magazine contributed to this report.

 

Zack Burgess is an enterprise writer for The Tribune. He is a freelance writer and editor who covers culture, politics and sports. He can be contacted at zackburgess.com.