Playing Constitutional Hardball with the Electoral College

Republicans are playing Constitutional hardball again. It’s a dangerous game.

The GOP may attempt to rig the Electoral College by changing the electoral vote allocation in GOP-controlled states which voted for Barack Obama. The idea would be to shift from the normal winner-take-all plan to something that would split the votes in those states. Ideally, from the Republican point of view, every Republican state would be winner-take-all while all Democratic states would be split more or less evenly, making it almost impossible for a Democrat to win the White House. All of that, as obviously undemocratic as it is, would be perfectly Constitutional; the Constitution leaves every state in charge of how to choose its electors.

The idea should be not be seen as a stand-alone. Instead, it’s best thought of as one of a set of schemes Republicans have advanced over the last 20 years. It includes the establishment of the 60-vote Senate; mid-decade redistricting in Texas after Republicans took control of the legislature there; the “new nullification” of Republicans using the filibuster to prevent anyone at all from getting confirmed for some executive branch posts in an effort to prevent duly passed laws from getting carried out; recall elections to remove officials without any particular cause; and the impeachment of Bill Clinton for actions which had not traditionally been thought to fall into the category of “high crimes and misdemeanors.”

Oh, and one more, one that is closely tied to the latest plan: the threat, during the 2000 presidential recount fight, that the Florida legislature would simply toss the entire election out and pick the electors themselves.

What all these efforts have in common is that they are all perfectly legal,  and yet they all violate the norms of how American politics had been practiced for decades or even for centuries. All of them exploit some loophole in the law or the Constitution to give Republicans some immediate advantage in the basic ground rules of how political issues are contested.

The legal analysis Mark Tushnet of Harvard Law School calls such efforts “Constitutional Hardball,” and I think that’s a good name for them.

The question is how corrosive they are, and I think the answer is: very.

Much of the American political system actually runs on norms, not rules. It may seem strange to people—especially after 20 years of Republican-led Constitutional hardball—but that arrangement actually can work very nicely. Both parties, and beyond them most other politically active citizens, simply work within the de facto rules of the game and work for the best results under those rules.

The problem is that once a party in such a system starts looking for areas to exploit in the gap between written law and the way the law is practiced, they may find all sorts of small, temporary edges. And there’s really no particular reason for them to stop once it starts. In each case, the case for moving ahead is the same: why not use the rules to your advantage? For the other party, the incentive to fight fire with fire is overwhelming. Not only is sticking to outdated norms while your opponents don’t a sure recipe for losing, but in fact the very norm of following norms rapidly disappears and should be replaced by loophole-exploiting by everyone.

There’s a classic collective action problem here: everyone is far better off under a system in which the basic rules of the game are agreed to and respected than under a system in which the rules are constantly altered, but at any particular point in time anyone who figures out a gap to take advantage of can be better off.

More seriously, democracy itself is threatened by Constitutional hardball. Rapid rules changes are bad for democracy. Why? Because coalition building and complex bargaining—both of which are absolutely essential for large-policy democracy—only do that work when they are necessary. When the rules are up for grabs, those processes can become unnecessary—or at least it may appear that party hands can shortcut the process by bending the rules in favor of their own faction. The classic case of this was the reforms of the Democratic presidential nomination process after 1968, which produced factional nominees in 1972 and 1976 before everyone figured out the rules and candidates were once again forced to form coalitions in order to win.

Of course, sometimes rules change is necessary. Surely, for example, switching to direct election of senators or to an open presidential nomination process or to a system which destroyed the domination of the House of Representatives by a handful of committee chairs who happened to live in safe districts were all excellent ideas, even if they created short-term problems. The thing about Constitutional hardball, however, is that rules change happens not in order to find a better system—not even a little bit—but purely to find and exploit temporary advantages, no matter what happens after that.

Fortunately, it’s unlikely that Republicans will actually go ahead with their Electoral College rigging plan, because the incentives for state legislators who would have to vote for the plan most likely run counter to those of the national party. Even the suggestion of such Electoral College-tampering, however, further undermines the “norm of following norms” that helps keep a democracy polity stable. And unfortunately, no solution appears to be available.

The best hope is that the present generation of Republicans will maybe be replaced by a group who have a bit more restraint; after all, they do call themselves conservatives. But that’s probably just wishful thinking; the most likely outcome is a constant back-and-forth exploitation of the rules, with winners codifying their current positions in ever-more-detailed rules of the game that may or may not make any sense whatsoever beyond the short-term advantage for which they were adopted. Now, of course, plenty of our most cherished institutional arrangements (and also, you know, the United States Senate) have been influenced, at least in part, by the self-interest of the time. That’s politics. But Constitutional hardball is a step beyond that, and it’s deeply threatening to democracy.


It would not have been constitutional during the 2000 presidential recount fight, for the Florida legislature to simply toss the entire election out and pick the electors themselves.

Federal law (section 1 of Title 3 of the United States Code) requires presidential electors to be appointed on one specific day in every four-year period namely, the Tuesday after the first Monday in November (Election Day).
“The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.”.

Any attempt to appoint presidential electors after the people vote in November would be politically preposterous in the real world because it would not be "perfectly constitutionally legal.
Any attempt to appoint presidential electors after the people vote in November would be unconstitutional on its face because the Constitution gives Congress the power to establish the day for appointing presidential electors and existing federal law allows presidential electors to be appointed on only one specific day in each four-year period (namely, the Tuesday after the first Monday in November).

No state may appoint its presidential electors after “the results of an election become known.”.

If a state legislature decides that it is going to appoint presidential electors itself, it must make the appointments on the specific single day established by Congress (the Tuesday next after the first Monday in November). In particular, a state legislature cannot appoint presidential electors after Election Day (e.g., after seeing the election results in its own state or other states).

Obvious partisan machinations like the newest proposals should add support for the National Popular Vote movement. If the party in control in each state is tempted every 2, 4, or 10 years (post-census) to consider rewriting election laws and redistrict with an eye to the likely politically beneficial effects for their party in the next presidential election, then the National Popular Vote system, in which all voters across the country are guaranteed to be politically relevant and treated equally, looks better and better.

The National Popular Vote bill would change current state winner-take-all laws that award all of a state’s electoral votes to the candidate who get the most popular votes in each separate state (not mentioned in the U.S. Constitution, but since enacted by 48 states), to a system guaranteeing the majority of Electoral College votes for, and the Presidency to, the candidate getting the most popular votes in the entire United States.

The bill preserves the constitutionally mandated Electoral College and state control of elections. It ensures that every vote is equal, every voter will matter, in every state, in every presidential election, and the candidate with the most votes wins, as in virtually every other election in the country.

Under National Popular Vote, every vote, everywhere, would be politically relevant and equal in every presidential election. Every vote would be included in the state counts and national count. The candidate with the most popular votes in all 50 states and DC would get the needed 270+ electoral votes from the enacting states. The bill would thus guarantee the Presidency to the candidate who receives the most popular votes.

National Popular Vote would give a voice to the minority party voters in each state. Now their votes are counted only for the candidate they did not vote for. Now they don't matter to their candidate.

And now votes, beyond the one needed to get the most votes in the state, for winning in a state are wasted and don't matter to candidates. Utah (5 electoral votes) alone generated a margin of 385,000 "wasted" votes for Bush in 2004. 8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).

With National Popular Vote, elections wouldn't be about winning states. No more distorting and divisive red and blue state maps. Every vote, everywhere would be counted equally for, and directly assist, the candidate for whom it was cast.

Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states. The political reality would be that when every vote is equal, the campaign must be run in every part of the country.

When and where voters matter, then so are the issues they care about most.

The presidential election system that we have today was not designed, anticipated, or favored by the Founding Fathers but, instead, is the product of decades of evolutionary change precipitated by the emergence of political parties and enactment by 48 states of winner-take-all laws, not mentioned, much less endorsed, in the Constitution.

The bill uses the power given to each state by the Founding Fathers in the Constitution to change how they award their electoral votes for President. Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have come about by state legislative action.

In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state's electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). Support for a national popular vote is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in virtually every state surveyed in recent polls in recent closely divided Battleground states: CO – 68%, FL – 78%, IA 75%, MI – 73%, MO – 70%, NH – 69%, NV – 72%, NM– 76%, NC – 74%, OH – 70%, PA – 78%, VA – 74%, and WI – 71%; in Small states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE – 75%, ID – 77%, ME – 77%, MT – 72%, NE 74%, NH – 69%, NV – 72%, NM – 76%, OK – 81%, RI – 74%, SD – 71%, UT – 70%, VT – 75%, WV – 81%, and WY – 69%; in Southern and Border states: AR – 80%, KY- 80%, MS – 77%, MO – 70%, NC – 74%, OK – 81%, SC – 71%, TN – 83%, VA – 74%, and WV – 81%; and in other states polled: AZ – 67%, CA – 70%, CT – 74%, MA – 73%, MN – 75%, NY – 79%, OR – 76%, and WA – 77%. Americans believe that the candidate who receives the most votes should win.

The bill has passed 31 state legislative chambers in 21 states with 243 electoral votes. The bill has been enacted by 9 jurisdictions with 132 electoral votes - 49% of the 270 necessary to go into effect.

Follow National Popular Vote on Facebook via NationalPopularVoteInc

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