Sound the alarm! Democrats are on high alert! Josh Marshall calls it a big, big deal. Eric Kleefeld says if the blueprint were in place last November, the GOP would have “stolen 2012 for Mitt Romney.” Steve Benen of the Maddow Blog calls it a “democracy-crushing scheme” showing that “the will of the voters and the consent of the governed are now antiquated concepts that Republicans no longer value.” They’re all talking about potential plans to change the method for electing the president in states like Virginia, Wisconsin, and Pennsylvania—states that have Republican legislatures and governors but voted for Obama in 2012. Instead of awarding all of the state’s Electoral College votes to the presidential candidate getting the most votes in each of these states, under the proposed plans most of the Electoral College votes would be awarded to the winner in each congressional district—and thanks to Republican gerrymandering of those districts, such a scheme would be a windfall for Republicans. This plan would be deeply concerning if Republicans were really going to enact it. But the same self-interest that is leading Republicans to consider this move is also going to lead most of them to abandon it almost everywhere. The Great Democratic Freak-out is unjustified. But it is not without its usefulness, because it reminds wavering Republicans what they will face if they go down the road of unilateral Electoral College reform.
Let’s start with the basics. In just about every U.S. election, the candidate who gets the most votes in the general election wins. Presidential elections are, of course, different: Each state gets assigned a number of Electoral College votes equal to the number of representatives and senators from that state. Besides two senators, the number of representatives depends on population, with more populous states getting more members of Congress.
The U.S. Constitution’s Article II gives each state’s legislature the power to set the rules for choosing electors. In most states, the legislature has put in place a rule to give all of the state’s Electoral College votes to the presidential candidate getting the most votes statewide. In Maine and Nebraska, they assign two of their votes to the statewide winner, and the rest by district—the same kind of arrangement under consideration by this new wave of Republican-dominated states.
Article II gives the legislature very broad power to pick the rules for choosing presidential electors. These bodies could even take the right away from the voters and allocate the state’s Electoral College votes itself—something the Supreme Court reaffirmed in its controversial Bush v. Gore decision in 2000. So despite all the talk of Republicans “rigging” the system by possibly changing these rules, there’s nothing unconstitutional about switching to this method of choosing presidential electors. (In fact, a number of Democratic state legislatures, including California, have adopted the National Popular Vote plan, which would pledge all the participating states’ electors to the presidential candidate getting the most votes nationwide once enough other states adopt it.)
What’s going to stop these changes to the electoral system is not law, but politics. Republicans have a lot to lose by going down this road, which is why Florida’s legislative leaders have already balked at it. It’s also why you don’t see Republican legislatures simply reallocating Electoral College votes to themselves.