Is the GOP rigging the electoral college?

Sep 21, 2011

Post opinion writer Harold Meyerson wrote how he thinks the GOP is rigging the electoral college for the 2012 presidential election by changing the way electoral votes are counted, making it harder for certain groups of citizens, like minorities and young people, to vote, and more.

Luis Fuentes-Rohwer discussed election laws, voting rights and how the GOP is changing the outlook of the 2012 presidential election, if at all.

Good afternoon, everyone.  I am really excited to talk about Pennsylvania, voting rights, and the electoral college.  We might even get a little bit of history by the time we are done!

Any chance the mounting evidence of premeditated tampering with the Electoral College motivates states to sign on to the popular vote plan that California has signed?

I am not sure what you mean by "mounting evidence of tampering."  If you are referring to the reform measures that Pennsylvania is presently debating, I am not sure that it will lead states to sign onto the National Popular Vote bill.  maybe. But I suspect that instead it will lead other states to emulate Pennsylvania.

Thanks for the good article. I'm a voter in Texas who leans heavily Democratic, and thanks to redistricting, am in one of the crazy maps that is designed so that a Democratic candidate never has a chance to win an election. Obviously I'm frustrated to the point of feeling like there's no point in voting (which, of course, was the purpose of drawing the map as it is now!). But more, I'm angry that this practice is allowed. This practice of allowing a partisan legislative body to drawn partisan maps is absurdly illogical. What can individual voters do to ensure that fair maps are drawn?

Your frustration is shared by many.  As for what individual voters can do, there is really not much.  This is why the practice endures.  This is also what makes it so frustrating.  Some refer to redistricting as the legislators selecting their constituents, rather than the other way around.  There is much truth to that.

what pa. is doing and what gov. jerry brown did signing a law that says california will award all their electoral to the candidate that carries the most popular vote...

Well, what Pennsylvania is doing is trying to break up the winner-take-all quality of the electoral college within its own state.  This is a curious thing for a party to do when it already controls the governorship and both houses of the legislature.  they are looking to the future and betting that this will benefit them.  But what makes them think that the future will not reflect current electoral realities?

In contrast, what California just did was sign on to the National Popular Vote bill, which simply ensures that the electoral college votes within a state will all go to the candidate who wins the national popular vote.  This is very different.

What, in your opinion, is the best possible configuration of voting for electing a president?

This is actually a really hard question!  Did you know that since the time of the constitutional convention in 1787, there have been from 500 to 700 proposals to amend the Electoral College?  The framers struggled with this question more than any other, and for good reason.

I read that Nebraska which currently awards electoral votes by congressional district is going to switch to a winner take all system because Obama won the Omaha district in 2008 and was awarded one electoral vote. It seems that the Republican strategy is to change the system after every election to do what will give them the most votes.

This is what concerns many people about changes to electoral rules.  These are changes initiated by the major parties and their elected officials, which leads to the criticism that they are simply seeking to rig the rules of the game to their advantage.  Instead, if they want to pass these kinds of laws, they should make them applicable years into the future, as to avoid this criticism.  But you sure don't see that very often.

That is a very good article. I did some checking and my state of Maryland actually requires a birth certificate to obtain photo ID (but that is not through the State Legislature or the governor--it is actually a law adapted by Homeland Security years ago). Republicans are taking advantage of security laws to keep the lower classes from voting. My birth state of Texas charges $45 for a birth certificate and then it is another $25 for a state ID card. That is a total of $70! That is an outrageous amount for a low-income person. You said in your article that this is essentially a poll tax and that it is legal. My question is, how can this possibly be legal? Thank you...

Hi.  To be clear, I did not write the article, but I can answer your question!  These arguments were raised by the plaintiffs in the Crawford litigation, and the Supreme Court, in a 6-3 majority authored by Justice Stevens ruled that these laws were constitutional.  The Court, as did the Seventh Circuit, pointed to the fact that the record did not reflect that any person had not been able to vote because of lacking an id and not being able to afford one.  Justice Stevens left the door open on this question, but I have not seen a new challenge since.

I'm a lifelong Democrat, but aren't the Republicans just playing by the rules? The Constitution lets the States decide how they want to apportion their votes and that is what they are doing. If we Democrats don't like it, maybe we should try to win some more elections at the state level.

That's exactly the response from many, including Supreme Court justices who are not inclined to get the Court involved in these questions.

the plan proposed to apportion the electoral college votes, now proposed by Pileggi, sounds awfully similar to what many of the Democrats proposed after the 2000 election - no more winner take all for a state, but an electoral college vote result that is closer to the popular vote result. if it was a great idea back in winter of 2000, why is it a bad idea now?

Not sure, but I'll say this: this is not a new proposal.  It is crassly partisan, to be sure, but not new.

Are you aware of any states that currently use/have considered using non-partisan, binding redistricting plans? I'm thinking of Canada as an example (miles different, I know, but bear with), where a non-partisan draws the districts based on compactness, and it naturally behooves MPs to accept the redistricting, lest they be seen as too partisan.

Yes, some states do, such as Iowa and Arizona.  But even in those states, the process is hardly flawless.  That is the nature of the redistricting process.   The biggest problem lies in findign who this "non-partisan" is.  Not easy to find!  :-)

How is what the GOP is considering doing in PA any different than what Democrats are attempting to do with National Popular Vote? Popular vote tends to favor Democrats and congressional district apportionment favors Republicans.

Again, not sure.  If the question is getting at the partisan nature of all of this proposals, I have no quibble with that.  The one aspect of the popular vote proposal that lends it more legitimacy is the fact that it accords with notions of Democracy as majority rule.  It also dates back to debates in the convention in 1787.  Again, nothing new here.

Since we illustrate ever single week that we have the technology to do an actual popular vote, American Idol anyone? Why do we still have this antiquated technology be the basis of what will happen to one of the most, well kind of, powerful nations on the planet for the next 4-8 years? This isn't the 1700-1800s. It doesn't take a month to count all the votes. It can be done in minutes. If Simon Cowell can do it. America can do it.

Do we really want to follow Simon Cowell's lead on anything?  :-)

You seem to decry when Gore wins the popular vote but loses in the electoral college. But isn't counting electoral votes based on congressional district closer to your goal of a popular vote? You should be against winner take all on states votes, not arguing for the status quo while still complaining about the popular votes. Make up your mind.

Again, I did not write the original article.  But to be fair, I think what the article decries is the crass partisanship of the proposal.  As for the proposal itself, again, it is not new, and it is perfectly sensible.  It simply rearranges the electoral incentives for presidential candidates in a different way.

Have there been instances of states controlled by Democrats doing the same thing?

As I said before, proposals like this one abound and have been around since the framers settled on the Electoral College method.  I can't think of specific examples, but clearly, to your question, this is a systemic problem of politicians having control over the rules of the game, not a one-party problem.

"Rigging" by definition requires fraud or deceit. Nothing like that here, at least from what appears everything is in the open and legal. Myerson just doesn't like the possible result. P.S. No different from gerrymandering to isolate groups or squeeze out an incumbent (we saw that in MD-* where the Dems in Annapolis redistricted Connie Morella out of business).

If you are responding to my use of the term, I won't argue the semantics.  I will say instead that nobody debates that Pennsylvania is doing this as a "good government" measure.  Neither do Democrats when they are in charge. Indeed.

My fear is that every state's legislature will switch back and forth depending on whether the polls indicate that their candidate will take the popular vote. that would lead to nothing short of a crisis, don't you think?

I really don't think so, if for the fact that what Pennsylvania republicans are doing is taking bets on the future.  Other states may take different bets.  And also, having the power to do this requires total control of all branches of state government.  Not easy to do.

I know you're not Mr. Meyerson, but after reading his opinion piece I was hoping you could answer - why shouldn't 1) Early voting be curtailed? 2) I have to show an ID to vote? 3) States change from winner take all?

Not sure I follow.  Why curtail early voting?  The arguments I have seen are usually along party lines.  Same with voter Id.  The argument is that in order to burden the right to vote, states should at least have some evidence that they are burdening it for a good reason.  Deterring fraud would qualify, for example.  But instances of fraud are not many, and usually found in cases of absentee votee.  Incidentally, these are the cases that voter ID laws can't -- and don't -- cover. 

Why shouldn't states change from winner take all?  As an abstract question, I agree.  Constitutionally, they have much leeway.

There is significant talk of a roll back in voting rights - for young, minorities and the poor - though changes in state laws around early voting, voter IDs, etc. Combined with the currnt conservative legal effort to undermine the 1965 Voting Rights Act, is this national effort as unprecedented in US history as it seems?

I think the answer is no, and it is not even close.  The late ninetenth century witnesses a far greater and explicit effort to disenfranchise minorities.  This effort lasted, as you note, until the 1965 Voting Rights Act.

Are you really arguing for no forms of ID whatsoever? You really think requiring a government issued ID is a poll tax? Don't you want to eliminate any fraud at all? This is where you just lose moderate Democrats and Republicans with your whining about a poll tax. Should we reimburse voters for the gas they use getting to the polling station? Isn't that a poll tax?

The argument is that IDs are not free, and voting should be.  Here's the question to consider: how much can we burden a person's right to vote?  You say that an ID is not much of a burden, and the Supreme Court agreed.  But clearly there are limits, and the Supreme Court in Crawford left the door slightly open for plaintiffs to test those limits.

Many readers are exercised over redistricting in Texas that benefits Republicans, but seem perfectly happy with the tortuous redistricting in California and Illinois which does the same for Democrats. What do you think could be done to make districts aligned more realistically, and less politically, or is that an oxymoron?

That's actually a great question.  But it is one for which answers are hard.  So long as we have legislators in charge, the system is not likely to change.  Maybe we could turn to proportionality? But again, doing so has attendant costs and benefits.  There is no easy answer.

What do you think would be the effect on America and Americans if state and national popular vote victories were increasingly overturned by electoral college reversals? Is there a problem of "representation" if people repeatedly fail to elect who they voted for?

This would actually be a crisis, the way you present it.  It has happened three times in our history -- 1876, 1888, and 2000.  The system would likely implode, I imagine.

Then who would you like to have control over the rules of the game? You?

The point was slightly different.  When politicians are in control of the rules of the game, they behave as we expect politicians to behave. 

How do you know if there is no fraud if no one checks ID? Someday, someone is going to be shocked, shocked that there is fraud going on in elections. And not just in Chicago.

The point is that there is no evidence of fraud.  The best the Supreme Court could come up with in upholding the Indiana identification law was a few scattered cases outside of Indiana.  Curious, no?

Sorry I could not get to all of your questions. This was a very interesting discussion.  Thank you for taking part!

In This Chat
Luis Fuentes-Rohwer
Luis Fuentes-Rohwer is a professor at Indiana University Maurer School of Law. Professor Fuentes-Rohwer's scholarship focuses on the intersection of race and democratic theory, as reflected in the law of democracy in general and the Voting Rights Act in particular. Fuentes-Rohwer is interested in the way that institutions - and especially courts - are asked to craft and implement the ground rules of American politics. His dissertation, entitled The Rise of a Concept: Judicial Independence in the American National Context, 1787-1833, examines the way that the concept of judicial independent gained traction soon after the U.S. Constitution came into being as a necessary counterpoint to the rise of political parties. His most recent work focuses on the political and constitutional status of the commonwealth of Puerto Rico under American rule.
Recent Chats
  • Next: