Republicans have only won the popular vote for president once in the last 25 years, a steep decline in their fortunes from the period from 1972 to 1988, when they won the popular vote every time but one--1976, the aftermath of Watergate. Add to that massive policy failures and demographic trends against them, and the motivations to cheat are overwhelming.
Voter suppression seemed promising at first—and it’s helpful in many downticket races—but it’s not going to be enough to secure the White House. So they’ve been working on another idea as well—make the popular vote totally irrelevant by leaving red states just as they are, with statewide winners getting all the electoral votes, while making electoral votes more or less proportional in as many blue states as possible—many of which the GOP controls at the state level. If they can rewrite the rules fast enough, they could even win in 2016, with no more votes than Mitt Romney received.
Republicans have been fiddling with various Electoral College schemes since at least 2011 (in Michigan and Pennsylvania), with an upsurge of interest in early 2013, following Romney’s disappointing loss. “How Romney Could Have Won: A changed system would mean changed results” was the title of a January 2013 National Review story, capturing the mood at the time. Romney needn’t have won a single additional popular vote, you see. Just divvy up Electoral College votes by congressional district, and voilà! President, President Romney, Mr. 47 Percent! “[F]or those frustrated over 2012’s results,” the story concluded, “it might be worth thinking about whether it’s time to overhaul the system itself.”
The buzz faded rather quickly, but now, post-midterm elections, it seems to be staging a modest comeback—and the GOP’s sheer desperation means it would be foolish to ignore this ongoing threat to our democracy. Renewed talk of rewrite schemes actually began even before the midterm election, according to a late-October story by Michigan political columnist Susan J. Demas, and a watered-down scheme emerged after the election, she reported, which would give most of the electoral votes to the statewide winner, but give some to the loser as well. “It's like a participation trophy in pre-school tee-ball,” Demas wrote, “only Michigan is trying to build up the self-esteem of Republican wannabe leaders of the free world.”
If that sounds like a comedown from electing President Romney, so be it. “Something is better than nothing,” Demas told Salon. “It would help Republicans more than they've been able to achieve since 1988, the last time the GOP took Michigan's EV votes.” It’s also something that could happen quite soon, as we’ll see below—and it might, in turn, help revive efforts in other states. But before we get into the particulars there, we need to spend some time reflecting on the broader view.
First, we should note how serious these Electoral College schemes are; they’re popular in many GOP circles—although not with everyone. RNC Chair Reince Priebus has endorsed it. "I think it's something that a lot of states that have been consistently blue that are fully controlled red ought to be looking at," he said in January 2013.
The next month, the Michigan Republican Party convention overwhelmingly endorsed a proposal for their state to allocate electoral votes by congressional district—the vote was 1,370-132. Outgoing Pennsylvania Governor Tom Corbett endorsed the idea as far back as September 2011, while others such as Wisconsin’s Scott Walker and Michigan’s Rick Snyder have danced back and forth, and the National Review has weighed in favorably as well, as already noted. Interest fizzled at the time, but just after the midterms, the National Review ran an even more gung-ho story pushing the scheme, “The Constitutional Idea that Could Guarantee a GOP Win in 2016.” A “Constitutional” idea to quash majority rule; who could argue with that?
Lots of people, obviously, which is a big part of why the idea fizzled in early 2013. And it wasn’t just Democrats or the “liberal media.” Mike Duncan, RNC chairman under George W. Bush, was “unimpressed,” Steve Benen noted. "This is not a viable pathway for the party to win nationally," Duncan opined. And it wasn’t just an establishment view. Benen also cited Virginia Attorney General Ken Cuccinelli telling Dave Weigel, "I don't like breaking up states," after a discussion sponsored by the National Review. "I think winner-take-all is part of how a state matters as a sovereign entity.... It makes the state, as a state, matter more."
More generally, state legislative leaders did not seem enthused, and they were the ones needed to make the whole plan go, since it requires getting bills through state legislatures. That doesn’t mean the plans are dead—only that the earlier rollout was premature. If you’re going to throw a couple hundred years of precedent out the window, you need to do some spadework first. Republicans have spent decades nurturing voter fraud myths, and developing narratives to rationalize voter suppression laws. Electoral College schemes are quite new, by comparison—they’re just getting started with them. Which is why Democrats should not be complacent about them. There’s still time for them to be implemented before the 2016 election, and the first such plan could be passed by New Year—although it’s a relatively muted alternative.
There are two very good reasons for Republicans to continue down this road—and thus for the rest of us to worry. First, it’s likely to be the only realistic shot they’ve got at winning the White House for a long time to come. Despite the GOP's midterm success, there’s little chance the presidential picture will change any time soon, a point made compellingly by conservative Republican Chris Ladd, writing for the Houston Chronicle, and quoted at length by MSNBC’s Lawrence O’Donnell. “Once again, Republicans are disappearing from the competitive landscape at the national level across the most heavily populated sections of the country while intensifying their hold on a declining electoral bloc of aging, white, rural voters,” Ladd wrote. “The 2014 election not only continued that doomed pattern, it doubled down on it.”
Looking forward just two years, Ladd noted a “blue wall” of states no Republican could hope to win, and counted 257 electoral votes—out of 270 needed to win, a number that rose to 270, if you included Virginia, where “Democrats won the Senate seat there without campaigning in a year when hardly anyone but Republicans showed up to vote and the GOP enjoyed its largest wave in modern history.” With a future that bleak, Republicans have no choice but to look for another way.
The second reason for trying to rewire the Electoral College is that Republicans already have a template for doing it—their successful gerrymandering based in seven key states identified by Mother Jones just after the 2012 election—Florida, Michigan, North Carolina, Ohio, Pennsylvania, Virginia and Wisconsin. These seven midsized-to-large states, which Obama won in 2008, sent more than a 2-1 GOP majority to the House of Representatives in 2012, following their GOP-controlled reapportionment in their states, resulting in the most widespread partisan gerrymandering effort in U.S. history.
Despite a nearly even split in the popular House vote in these states, and the fact that Obama again won six of the states, and only narrowly lost the seventh, the GOP captured a massive 73-34 advantage in House seats in these states. Meanwhile, in the rest of the country the Democrats held a narrow 167-161 advantage. The extreme gerrymandering in this small handful of states was a main cause of to the gridlock of the past two years. Those congressional districts could also be key to winning the White House without a popular majority as well, if those states were to apportion electoral votes by congressional district—which is why the gerrymander serves as a template for GOP’s Electoral College schemes.
The GOP’s House gerrymander gives them an enormous amount of anti-democratic power on which to build, but it also helps to set a precedent. Much like the acceptance of filibustering everything in sight in the Senate, the political establishment has accepted and normalized the House gerrymander, which means it's now a part of political landscape on which other things can be based, so it’s worth taking a moment to take a closer look at it.
There’s a popular notion that the GOP advantage in the House is due to Democratic clustering in cities--it's even supported by the academic community (see posts in the original Monkey Cage blog here, here and here, for example). While there’s clearly some real clustering effect, Sam Wong, of the Princeton Election Consortium, has made a compelling case, employing large-scale election simulations, that nationwide clustering is not the primary culprit, narrowly targeted gerrymandering in a small number of states is. [See “Gerrymanders, Part 1” and “Part 2” from his blog and his New York Times op-ed presenting his work to a larger audience.]
Wang’s point is further supported just by comparing what’s happened between 2008 and 2012 in the handful of states highlighted by Mother Jones with what’s happened in the rest of the nation. From 2007 to 2012, the Democrats' share of popular votes in these states dropped 6.3%, compared to 10.3 percent in the rest of the country. But the share of seats they won in those states dropped 44.8%, compared to 19.6% in the rest of the country. They lost House seats in those seven states at more than 3½ times the rate they lost them in the rest of the country, for the same decline in popular vote share. Clearly, the effects of gerrymandering were dramatically large.
Moreover, in January 2013, a report from the Republican State Leadership Committee, “How a Strategy of Targeting State Legislative Races in 2010 Led to a Republican U.S. House Majority in 2013,” boasted about its success in gerrymandering, using $30 million to target Democratic-held state legislature races in blue states like Pennsylvania, Ohio, Michigan and Wisconsin.
Of course, gerrymandering has a long, ignoble history, so even a gerrymander of unprecedented scope has a good deal of lesser precedents to call upon. But rewiring the Electoral College to subvert majority rule is something else again—which helps to explain why it hasn’t gone as smoothly as the gerrymander has. There are, in fact, two different sorts of problems that the Republicans face. First, they’re trying to do something that flies in the face of deep social norms—deliberatively crafting a strategy to defeat majority rule in the highest office in the land. They’re actually pretty good at this sort of thing, having done it rather often in the last couple of decades, as we’ll see below. But to succeed, they first need to solve the second sorts of problems they face—problems involving intra-party conflicts of various sorts.
This is where it pays to pick up the current thread in Michigan again. As noted above, a watered-down proposal—one that would give a few electoral votes to the loser—is something that could happen soon in Michigan. “I think it's more likely we'll see action in Michigan than the other states that mulled the idea in 2012,” Demas said, using the last lame duck session as precedent:
We had a very controversial, conservative lame duck with Right to Work, anti-abortion legislation and a new Emergency Manager law (just weeks after voters dumped it). Republicans paid zero political price, as Gov. Rick Snyder was just re-elected and Republicans added to their majorities in the Legislature. So a lot of Republican activists are urging them to go for it. No one pays attention in lame duck. And the main proponent, Rep. Pete Lund, is term-limited and wants to be the next state GOP chair.
Lund first introduced his bill in 2011, and has never stopped pushing. “It's more representative of the people," Lund said in late 2012, even though his plan would have given Romney more electoral votes than Obama in a state that he lost by 450,000 votes. As already noted, in February 2013, the state party endorsed his plan overwhelmingly, by 1,370-132 margin, just a few weeks after Governor Snyder came out against it—at least at that time. So it’s clearly popular with party activists, even as professional politicians tend to be more wary.
Other state political factors could line up as well, Demas explained:
There's also the factor that Snyder wants a road-funding bill and would likely be willing to trade the Electoral College change for it. And state House Speaker Jase Bolger (R-Marshall) has also told Democrats to go along with what he wants for lame duck, or they can expect the Electoral College bill to go through.
The bottom line is Republicans have the votes and Snyder is unlikely to veto. If they want to shove it through with brute force, they can.
It’s a complicated situation, not likely to replicated elsewhere in the short run, though the general contours of conflicting and coinciding concerns are the stuff of politics everywhere. Which is why it could have an ice-breaker effect. Once something’s been done to rewrite the rules in one state, Republicans in other states will have the beginnings of a playbook. It’s a long way to November 2016, so there’s plenty of time for other states to act and start radically changing the rules of the game.
To get a broader feel for the sorts of conflicting interests that may be involved, consider something Ian Millhiser of Think Progress wrote back in September 2011, describing the array of forces in another state:
So for those of you keeping track at home, here are the three factions within the Pennsylvania GOP.
- Just Rig The Election Already: Gov. Corbett and Sen. Pileggi fully support the plan. In Pileggi’s words, they have heard “nothing” indicating that this election rigging scheme “does not have the right objective.”
- Protect Me First: GOP Reps. Jim Gerlach, Pat Meehan and Mike Fitzpatrick care more about keeping their own jobs than they do about electing a president who will eliminate Medicare, so they oppose a plan which might endanger their ability to get reelected in what have traditionally been Democratic-leaning districts.
- Be More Coldly Calculating: Perhaps the most despicable faction is captured by Matthew Brann’s statement that Corbett should only rig the election if he is not sure the GOP can carry the state. This faction apparently believes that the biggest problem with Corbett’s election rigging scheme is that it could backfire and benefit the Democrats.
The “protect me first” group is particularly noteworthy. If congressional districts become the basis for winning electoral votes, then obviously much more effort will go into turning out voters in those districts, which will increase the chances that some otherwise safe House seats might flip. This is a very big deal for sitting congressmembers, but it could be offset by a combination of other factors, if institutional protections (and threats) could be put into place—career rewards for congressmembers who do fall prey, on the one hand, and primary challenges to those who stand in the way, for example.
In short, developing a more coherent and elaborate strategic plan should be expected to reduce some—but not all—of the internal conflicts. Which means that stumbling blocks which have prevented these plans from going forward in the past should not be counted on to always be there in the future. Instead, we ought to take this threat very seriously, simply because (a) the GOP really doesn’t have any other good options and (b) the GOP has tried similarly drastic measures in the past, which should inform how we deal with them now and in the future.
On this second point, a good deal of light was shed by Jonathan Bernstein during the early 2013 flurry of activity, in a piece titled “Playing Constitutional Hardball with the Electoral College.” The term “constitutional hardball” comes from Harvard Law professor Mark Tushnet, in a 2003 paper of the same name. In his abstract, Tushnet explains:
[Constitutional hardball] has three characteristics: it involves arguments and behavior by political actors (including judges, although their role is less interesting than that of other political actors) that are defensible -- though sometimes only barely so -- by standard constitutional doctrine; it is inconsistent with settled pre-constitutional understandings; and it involves extremely high stakes (control over the national government as a whole). I argue that constitutional hardball occurs when political actors see the chance for a permanent transformation of the constitutional order.
In his article, Bernstein characterizes what the GOP is aiming for thus: “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,” which he notes, is both “obviously undemocratic” and “perfectly Constitutional.” But it’s not an isolated example:
[I]t’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.
I would add two more of my own: the coordinated gerrymander of the House discussed above, and—being a native Californian—the purely political impeachment of Governor Gray Davis. No doubt there are others, equally justified. Bernstein adds:
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.
They also involve “extremely high stakes,” which is why they qualify as constitutional hardball. Constitutional hardball tears at the fabric of our constitutional order, which is bound up in those norms. This is not to say that norms never can or should change, but only that they play a very important role—as important, at least, as the written letter of the law—and therefore great care is required if one contemplates their overthrow. Once the practice of constitutional hardball is begun, it can be very difficult to stop. “[T]he incentive to fight fire with fire is overwhelming,” Bernstein points out. “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.”
This is where we are today, headed for complete destruction of our constitutional order, driven by people who claim a unique relationship with the Constitution, unwilling and unable to change in light of the fact that they cannot win national elections anymore—and therefore determined to destroy national elections, one way or another. Will they try to steal the 2016 election? They’re already working on it. But that’s only the symptom, not the disease.
We should not expect them to “return to normal,” if only we do this or that thing properly. We should not expect “the fever to break,” as Obama did during the 2012 election. We should only expect more of the same madness, using every last letter of the law to kill every last shred of its spirit..
It’s not constitutional hardball, actually. It’s constitutional beanball. Batter up?