This is an other in a series of posts dealing with the Michigan Law Review symposium on Electoral College Reform. This post deals with the comments of Sam Hirsch, who was reacting to the plan offered in California to change the manner in which the largest state's electoral votes are allocated from a winner take all system to a district based system in which the winner in each congressional district would get an electoral vote and the overall statewide winner would get an additional two electoral votes. While most states use a winner take all system, Maine and Nebraska use a district based system.
Hirsch, currently an election law attorney in Washington, DC and a former Democratic political operative, objects to the California plan, largely based on the notion that the California plan would allocate some electoral votes to the Republicans. Indeed in almost every single one of the articles dealing with the California plan levels a similar criticism, that there is some partisan advantage. Of course, this is likely part of the motivation for the plan, but the partisan motivations of the California plan are undercut by Hirsch himself within the first page of his comments.
Hirsch notes early on in his comments that partisan voting patterns have changed enormously over time. Thus, Hirsch himself undercuts the very the premise he is arguing, that the district based allocation plan is a bad policy motive because there is a partisan advantage in the district based allocation. If the primary argument he makes is that the plan, which will benefit Republican presidential candiates as currently formulated, then it is quite likely that over time the beneficiary of the district based plan will change over time in California and indeed in any state. Thus, the "unfair partisan" advantage argument is not likely to hold water over time since the partisan advantage in any one state or even any one district may shift over time. Indeed just a generation ago, California was a bastion of support for Republican candidates.
Hirsch does point out, validly, that the current method of redistricting is poorly suited to the use of a congressional district form of electoral vote allocation. The drawing of district lines is an exercise in politics designed to either increase partisan advantage in the raw number of districts or to create a sweetheart gerrymander where the partisan balance does not change much but makes each individual district a little safer for the incumbent. The result of a district based allocation therefore, according to Hirsch and others, would be to shift the balance of electoral from a small number of states, to just a few districts within those states. For example, there are only between 2 and 5 competitive congressional districts in Ohio, Florida and Pennsylvania, depending upon how you define competitive. So the result would be that candidates would focus their time on those ditricts rather than the whole state. This is a valid point of contention, but one that can be overcome.
However, Hirsch's analysis does not take the next step, that is what can be done to make the district based allocation more palatable? Sure, the Repbublican leaning states could change to a district based system, but that still doesn't address the overriding problem--the partisan mismatch found in most congressional districts. What must be done is to change the manner in which districts are drawn. If the fault of the plan is that congressional districts, as they are currently formulated and drawn, is that they are poorly suited to electoral vote distribution, why not change the manner in which the districts are drawn.
If the California plan were couple with redistricting reform, in which districts are drawn to not only be geographically compact but to also be competitive to the extent practicable, then you might get to a better alignment between districting and electoral vote allocation. There are always going to be districts that are geographically compact and yet overwhelmingly partisan to one side or the other. But it is possible, particularly in larger states, for the majority of districts to be competitive for the parties.
Hirsch dismisses the district based system for its short term partisan bias. By short-term I mean that the partisan bias is likely to be transient rather than fixed. While the current redistricting process is poorly aligned to electoral vote allocation, that does not mean it is permanently so.