Jan. 28 (Bloomberg) -- Imagine if the 2012 elections had turned out this way: President Barack Obama won the popular vote by five million votes and almost 4 percent, taking seven of the eight largest states, as he did, yet the Republican candidate, former Massachusetts governor Mitt Romney, took the oath of office last week.
Such a scenario might not be far-fetched if some Republican politicians in state houses around the country get their way.
U.S. presidential elections are decided by the Electoral College. Each state gets electors based on the number of congressional districts it has, plus two for its senators. With the exception of two small states, Maine and Nebraska, electors are awarded on a winner-take-all basis; 270 out of a total of 538 are necessary to become president.
Individual states set the rules for these electors; the current system, by most accounts, has worked well. Three times - - twice in the 19th century and then in 2000 -- the Electoral College victor lost the popular vote.
Now, Republican state legislators in as many as a half-dozen states where they control the governmental machinery even though their state was carried by the Democratic candidate in the past couple presidential elections, want to change the system and tilt it decidedly in their party’s favor. They would do this by scrapping the winner-take-all rule and awarding electors by congressional districts.
“This would amount to a legal subversion of democracy to game the system for political advantage,” says the legal scholar Walter Dellinger, who served as U.S. solicitor general in the Bill Clinton administration.
That’s not a frivolous alarm. Republican legislators, with tacit support from their governors, in Pennsylvania, Michigan and Wisconsin are advocating this. The party’s national chairman, Reince Priebus, is keeping a low profile and signaling encouragement.
To gauge the potential effect, consider what would have happened if these states, along with Virginia, Florida and Ohio, where Republicans also control the state houses, had forced this through in the most recent presidential election. Obama carried all these states, sweeping 106 electoral votes. But Romney won two-thirds of the congressional districts; if all else were equal, the Republican would have carried the Electoral College, becoming the first president who was trounced in the popular vote.
Scratching your head? Some of this maneuvering is due to redistricting or gerrymandering of congressional districts, a process largely controlled by Republicans after their big victories in 2010. Also Democrats tend to congregate in the same districts while Republicans are more diffuse.
Two examples: Obama won Pennsylvania by five points and Michigan by nine points, clear cut by any standard. Yet Romney carried 13 of the 18 congressional districts in Pennsylvania and 10 of the 14 in Michigan, and would have won the lion’s share of delegates in both states that he lost decisively.
Allotting presidential electors by congressional district would increase the incentives for partisan gerrymandering, already a factor in congressional dysfunction.
There is a longstanding and substantive debate over whether presidents should be decided by the Electoral College or the popular vote. That flared anew when George W. Bush won the presidency 12 years ago even though Al Gore won the popular vote.
Supporters of a change say it would create a genuine national election. Last autumn, Obama and Romney focused almost all their resources and time in eight states, all carried by the president. In a general election, voters in Buffalo, New York, San Diego, California, Houston, Texas or New Orleans, only lay eyes on a candidate if they’re in town for a quick-hit fund-raiser.
Defenders of the Electoral College dismiss this argument, claiming the present system strikes a political balance between states and regions that the Founding Fathers envisioned. A direct popular election, they contend, would depersonalize the campaign, turning into nothing more than incessant money-grabbing and television advertising. The focus last time was on a handful of states; Romney and Obama had to spend considerable time meeting real voters in Columbus, Ohio, or the northern Virginia and Denver suburbs.
Either the current Electoral College or a decision by popular vote, if the prolonged ballot counting in some states could be remedied, would produce a winner with legitimacy. The controversy over Bush’s election in 2000 wasn’t related to the system but whether he really won Florida, which gave him the Electoral College victory.
Still, changing to a popular vote probably would require a constitutional amendment with approval by two-thirds of both houses of Congress and three-quarters of the states.
Presidential electors are specifically mentioned in the Constitution. It’s not going to happen.
What might stop these attempts at rigging is if smart Republicans realize how manipulative it looks, and that it could come back to bite them; that’s the view of the former party chairman and ex-Mississippi Governor Haley Barbour. And such a system would dilute the clout of the states that adopt it, which is why Governor Bob McDonnell of Virginia is opposing any change.
If this sort of political coup had been pulled off earlier, instead of celebrations on the streets of Washington during last week’s presidential Inauguration, there would have been violent protests.
(Albert R. Hunt is a Bloomberg View columnist. The opinions expressed are his own.)
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