Is It Time for a Legal Challenge to the Electoral College?

Leading up to the Election night, I saw a couple of comments on the Electoral College.  There were the usual comments, i.e., why did we still have such an antiquated system? How do you explain it to kids?  How do you explain it to adults sometimes?

Of course, the Electoral College is here to stay at least until such time as a Constitutional Amendment is proposed, passed by 2/3 of Congress and then ratified by 3/4 of the states.  That is a tall order and I am not sure it would pass the first hurdle.  Of course, the states could hold constitutional conventions and propose the change themselves, then get ratification.  But that is not likely to happen.  However, there could be a mechanism to blunt some of what people see as the worst features of how the Electoral College works.

I saw a comment on my Facebook feed about how the population centers dominate the results in so many states.  Florida is a prime example.  The major population centers in Tampa, Miami, Jacksonville and Orlando (and to a lesser extent Tallahassee) were deeply Democratic in their voting.  But if you look at the remainder of the state, it is Republican or at least leans Republican.  The same goes for states like Ohio, where the margin of victory by President Obama in a few counties drove a state that looks very red in most places into a win for the President (see this map by the Washington Post which does a good job of showing how counties voted as well as giving a rough approximation of how big the margin of victories per county were).  As you can see, the country, county by county, is pretty red.  But the population centers are pretty blue.  So that leads to an interesting problem, is the Electoral College too skewed to the population centers? the answer would appear to be yes, because the population centers counteract the remainder of the state, particularly if the statewide, rural/urban areas do not contain massive numbers of voters where an urban county could number in the millions and even a 10 percent margin can completely wipe out any collective margin in the rest of the state.  Again, Florida, indeed most battleground states are like that.

The manner in which Electoral College votes are won and divided up is a matter of state law.  In most states, it is a winner take all system.  For example, Virginia is like most states.  In 2012 the President won Virginia with 50.8% of the vote to Governor Romeny's 47.8%.  Virginia has 13 electoral votes.  By the rules, the President gets all 13 electoral votes, despite winning just over 50% of the vote.  Florida is even more difficult, with neither candidate actually winning a majority of the votes, yet because the President won more popular votes, 46,039 more out of 8,283,630 cast, a margin of victory of 0.5%.  Yet, because of the fact that President Obama won more votes, even just one more than Governor Romney, he gets all 29 electoral votes and Governor Romney gets 0.

In a society in which we, at least nominally believe in fairness, how is that fair?  (Disclosure, I voted for Governor Romney, but live in Maryland which is so heavily Democratic that it is almost pointless to cast a vote for a Republican candidate).

But not every state has a winner take all system.  Maine and Nebraska do things differently.  Instead of a system where the state wide winner gets all the Electoral votes, in those two states, the candidate who wins the statewide race gets two electoral votes (for the state's two electoral votes from Senate representation) and then the candidate who wins teh popular vote in each Congressional District gets the electoral vote for that electoral district.  Thus, in Nebraska it would have been possible for one candidate to get three electoral votes (statewide electoral votes and one Congressional district).  Maine has a similar procedure as Nebraska, but while Nebraska is reliably Republican in over all state voting patterns, Maine is reliably Democratic (or at least left-leaning independents).

So the question most people might ask is why are Nebraska and Maine different that the rest of the country, save for those states with just three electoral votes.  Well, the answer is, they choose to be and it is up to each state to determine how electoral votes would be won in the presidential election.  A state could say, "we are going to divide the electoral votes up in a manner in proportion to the vote."  So if, a candidate won say 55% of the popular vote, that person would get 55% of the electoral votes.  In the case of a divided electoral vote, the state could round up to the winner.  So if a state like New York, which has 29 Electoral Votes was won by a candidate with 55% of the vote, which if you do the math, 55% of 29 is 15.95, so the results would round up to 16 electoral votes for the winner and 13 for the loser(s).

Alternatively, states could adopt a system like Maine and Nebraska.

But how to make that happen.  Well, there is some precedent for it in case law from the Supreme Court to be found in the reapportionment cases of the early 1960's.  In 1962, the Supreme Court decided the case of Baker v. Carr, 369 U.S. 186, in which the Supreme Court stated that reapportionment and redistricting cases could be decided by the courts (previously they were considered a "political question" which the courts could not decide).  In essence, what was happening prior to Baker v. Carr is that rural districts tended to be over represented because the populations of the Congressional districts tended to be quite unequal in terms of population.  The Plaintiff, Baker, noted that Tennessee had not changed its districts in 60 years and that the county he live in, Shelby which is home to Memphis, was now 10 times as populated as it was 60 years ago.  As a result the rural districts carried more weight politically.  Baker argued that he was being denied equal protection of the laws.

Baker v. Carr laid down the test for political questions.  Cases that are political in nature are marked by:

1. "Textually demonstrable constitutional commitment of the issue to a coordinate political department;" as an example of this, "[Justice] Brennan cited issues of foreign affairs and executive war powers, arguing that cases involving such matters would be "political questions"
2. "A lack of judicially discoverable and manageable standards for resolving it;"
3. "The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;"
4. "The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;"
5. "An unusual need for unquestioning adherence to a political decision already made;"
6. "The potentiality of embarrassment from multifarious pronouncements by various departments on one question."

Baker v. Carr, did not actually lead to a decision about redistricting, but it set the stage, saying that plaintiffs could challenge the law.  Baker did lead to the case of Reynolds v. Simms, 377 U.S. 533, in which the Court dealing with state legislative districts found that urban areas (similar to the charge made by Baker) were seriously underrepresented in the legislatures.  The solution from the court was the doctrine of equipopulation, the standard best summarized as "one person, one vote," although such a summary is somewhat inaccurate.  Of course each person had only one vote, but under equipopulation, the goals was to make the weight of each vote as equal as possible.  Before the standard of equipopulation, a rural district with 20,000 voters had as much sway as a urban district with 200,000 voters.  With this example, a rural voter had 10 times more weight than an urban voter.  So, the Supreme Court ruled that in order to obviate the threat to the republican form of government, all state legislative districts had to have populations that were as equal as practicable.  Reynolds applied only to state legislative districts.  A different case, Westberry v. Sanders, 376 U.S. 1 (1964), extended the equipopulation principle to congressional districts.

So why all this jibberish about Supreme Court cases and equal population?  Well, I believe that it would form the basis for a very good legal challenge to the system of winner take all electoral votes allocation.  Take for example, Ohio (with a Congressional District Map located here) where in most of the state apparently voted for Governor Romney.  A comparison of the district map with the voting pattern map of the Washington Post shows that the urban areas around Lake Erie and around Cincinnati which voted heavily for the President resulted in a victory for the President in that state by less than a percentage point.  It can be easily argued that the current Electoral College system in most states concentrate the Electoral power into a few densely populated cities in each state.  Even a state as heavily Democratic as New York (with 27 electoral votes) is not uniformly in favor of President Obama (62.6%) as the electoral vote count would suggest.  

I have already described the two most likely alternatives, a Congressional district based system similar to Nebraska and Maine, or a proportional allocation discussed above.

So a legal challenge to the winner take all Electoral College system would have to proceed along the lines of the equal protection argument that was posited in Baker v. Carr, that the current system effectively disenfranchises voters in rural areas.  One of the more interesting likely benefits would that candidates would not longer be able to take certain big states for granted.  States like California (which is now assumed to be a Democratic stronghold) would become competitive again because at least some Electoral votes could be had.  The importance of battleground states would be diminished a little.  The division of the electorate in states like Florida would not lead to heated division or likely accusations of vote tampering, etc.

As far as the psychology of the electorate, that is of course, hard to define.  But for me, I believe that at least there is a genuine belief among voters today that distrust the manner in which our President is elected.  They see far too much importance on just a few key battleground states.  This in turn leads to a suppressive effect in non-battleground states (like my own Maryland or say Utah) in which voters of the minority party and some of the majority party are not likely to vote because effectively, their vote has little effect.  But in breaking down the competition to a lower level, to the Congressional district level, it is possible to recognize that individual votes do matter.  They would have a far greater impact.  

Of course, the concern would be that gerrymandering would be employed to make certain Congressional districts and therefore certain electoral votes, solidly one party of the other.  Of course, this is a concern, but frankly it happens now, and despite the gerrymandering that has occurred in the past, control of the House of Representatives does change, and thus, the impact of gerrymandering would change as well every 10 years.

The trouble with the current system in 48 states and the District of Columbia is that the winner take all system greatly skews both the Electoral College and the candidate's behavior.  If we all want to have a say in choosing the President (which I think is true of most voters), and the Electoral College is here to stay (which it is) then challenging the winner take all system in Court is probably the only way to do it.

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Could the Voting Rights Act Kill the National Popular Vote Plan?

I have never been a fan of the National Popular Vote Plan, where states agree to pledge their electoral votes to the winner of the national popular vote--no matter what their state electorate may have votes. California and Maryland have implemented the plan and if a group of states comprising a majority of the electoral votes implement the plan it will take effect. One perverse result might be that a state like Maryland, which generally votes Democratic could have their state results ignored if a Repubican wins the national popular vote. Put in real context, lets say Hillary Clinton/Barack Obama wins Maryland by 15 percentage points. but John McCain wins the national vote by one percentage point, under the National Popular Vote Plan, Maryland would cede all of its electoral votes to John McCain. Thus, the will of the people of Maryland would have been subverted by everyone else in the country.

Well, David Gringer, in a student note for the Columbia Law Review argues that Sections 2 and 5 of the Voting Rights Act may present a problem for the National Popular Vote plan. It is a pretty good article.

Hat Tip: Prof. Hasen.

Criticisms of the District Based Electoral College Reform

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.