Here is how it works:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
That’s Article II, Section 1, Clause 2 of the Constitution. They key phrase: “in such Manner as the Legislature thereof may direct.” In theory, one can suppose that electors can be chosen any way the legislature wants, even if it defies the actual votes of the people in that state. This is where the letter can be exploited to corrupt the spirit of the law as well as the spirit of the nation.
And that perversion is exactly what Republicans are beginning to carry out this day. Not plan for in the future, not consider as a possibility: they are doing this as we speak.
The exploit is as follows: change the way states assign electoral votes so that gerrymandering allows a losing candidate to win more electoral votes, just as it does with House representatives.
Most states currently have a winner-take-all approach to the electoral college; if a candidate wins a majority of a state’s votes, then all votes are counted towards that candidate.
Two states, Maine and Nebraska, buck this trend, distributing electoral votes by district, with the two senatorial votes going to the winner of the state’s popular vote. If districts in a state are fairly drawn, then this plan is not much better or worse than the winner-take-all strategy, just with opposing votes given to the other candidate in smaller chunks.
However, there’s a way this system can be abused: the gerrymander. If you stack the deck, as Republicans have been doing furiously in many states for the past decade or so, then the number of opposing votes given to the other candidate is maximized, and instead of less than half a state’s votes going to the candidate not voted for, a potentially much larger number could be subverted.
And since this plan is to only institute this system in key states where Democrats often win but Republicans control the state government, it would not balance out over the whole country.
Taking it even further, the latest GOP plan is to have the two electoral votes based on Senate seats in these states go to the candidate who wins the most districts, actually magnifying the effect of the gerrymander.
Look at the chart below. The plan at the far right is the one Republicans are trying to enact in battleground states where they control both houses of the legislature and the governor’s office.
If this plan had been in effect last year, in the six key states listed above, Obama would have won by 5% of the popular vote in these states, 52% to 47%, but he would have lost the electoral vote, 30% to 70%—a 40% margin!
One could argue that winner-take-all subverted 48% of the votes, an even greater amount. However, this ignores the larger picture. These are only states where Obama won. Add the states where Romney was the winner, and things balance out somewhat. For all its flaws, winner-take-all is a more random system, is more or less impervious to corruption, and has worked fairly well over time in that only twice has a president won the electoral college while losing the popular vote.
And that’s the key point: in our country, we all support the idea wherein the candidate with the most votes wins. That’s the basic assumption.
The new Republican plan topples that system. Look at Michigan; Romney wins less than 45% of the votes, but gets 69% of the electors. In Ohio, he wins 48% of the vote, but gets 78% of the electors.
With the new Republican plan in effect, Republican candidates would start winning presidential elections almost no matter how many votes they won or lost. It would take what is now considered a landslide to overcome this stacked deck. It would be a violation of our principles because it is specifically designed to overcome the popular vote in favor of one party.
Obviously, a system of assigning electoral votes designed to win one party an election no matter what is a clear corruption of Democracy. One problem: gerrymandering is a long-standing tradition of legal corruption which acts as the camel’s nose under the tent. Going back to the 18th century, gerrymandering has been limited (it cannot, for example, be used to intentionally deprive racial groups of due representation), but is generally allowed freely for purely partisan purposes.
While the Supreme Court ruled in 1986 that partisan gerrymandering was unconstitutional and could be challenged in court, it set such a high standard of proof that it made legal challenges of such districts extremely difficult. Since then, the Court has remained divided on whether there is any viable way to set a judicial standard for what makes a given district an illegal gerrymander.
While it is possible that a Supreme Court challenge could upset plans to subvert the electoral college, it is not likely, especially with so many conservatives whose judicial philosophy is centered around ignoring the spirit of the law in favor of interpreting the letter to best suit their political leanings.
Like the filibuster, gerrymandering is a system that has been tolerated because it had never been abused to the point of being a ludicrous mockery of our system of government; but like the filibuster, Republicans have seized on it as a tool to corrupt on the largest of scales.
So, why don’t we just do what is fair, and change the system so that gerrymandering is illegal, states’ districts are drawn by random assignment, and a president is chosen by the popular vote?
Because it would take a constitutional amendment to make such a change, and Republicans would easily block it. Republicans would find some sham reason to object, and since it would require 2/3rds majorities in both houses to even get an amendment started, the idea would die right there.
Another route to amendment has never been used, and would be just as hopeless: legislatures in 2/3rds of the states would have to call a Constitutional Convention, then pass a proposed amendment, and then 3/4ths of all states would have to approve. Again, Republicans would kill such a movement in its cradle, as they control too many state legislatures.
So, there is no constitutional route to stopping this and imposing fairness, and the Supreme Court is most likely going to add its stamp of approval to the virtual coup d’état.
It is happening now. Virginia is the first to move, with the plan already moving through the legislature. While there is a glimmer of hope as one Republican in the legislature is against the idea, this will not matter long; Republicans in Virginia managed to ram through a non-majority, non-census-cycle gerrymander, meaning in two years, Republicans will have a clear path anyway. The Republican governor has hinted he would not go along with it, but Republican governors opposing their party’s moves in other states have caved in and gone ahead with stridently partisan moves before (e.g., the Michigan law designed to gut unions).
Even if it does not pass in Virginia, Republicans in Pennsylvania have already started moving on their own version, and conservatives in Ohio and Wisconsin are showing signs of moving as well. RNC head Reince Priebus is behind the measures.
With Democrats being weak-kneed and ineffectual, the only thing with a hope of stopping this is the occasional Republican with the slightest shred of moral fiber challenging their political interests.
In other words, we’re screwed.
It is entirely possible that in 2016, Hillary Clinton faces someone like Marco Rubio, wins by 10 million votes—and loses the election.
Any conservative who is in favor of this clearly has no respect for Democracy, no respect for the spirit and values our nation is founded upon, and favors winning by any means possible over the voice of the people at large.
Which is pretty exactly where most conservatives these days appear to stand.
There’s a word for a system of governing where the voice of the people is ignored, and one faction grabs power and imposes their will upon the majority.
It is, ironically, the same system that conservatives have been screaming insanely against for the past several years.
And they are getting very close to implementing it.