How to Win Elections Without Really Winning!

By now a lot of Americans (I would estimate at least 35 of us–maybe even more!) are aware that the Republicans wound up controlling the House of Representatives despite losing the overall vote for House seats by about a million and a half votes, or 1.4%.  This is largely the result of aggressively gerrymandered House districts after the 2010 elections (and I’ll acknowledge in advance that the Democrats would likely have done exactly the same thing given a similar opportunity, but that seems largely beside the point–this isn’t really about Republican skullduggery, it’s about a threat to true representation and democracy).

For people in my home state, Pennsylvania, this translates into a sort of bizarro-world legislature in which Republicans control 13 of the 18 state legislative districts in a state that went fairly decisively for Barack Obama.  This is true in other swing states. Ohio, for instance, voted for Obama but Democrats control only 4 of 16 state legislative districts.

It’s possible that most Americans think that state and US Congressional districts are determined by some sort of impartial, logical, automatic system, but that is far from the case and it never has been the case.  The term Gerrymandering, which we all learn about in high school, is actually named for revolutionary-era Massachusetts politician Elbridge Gerry who, as governor, created a legislative district map so odd in its shape that critics said it resembled a salamander, giving birth to one of the more enduring and colorful terms in US politics.

The current situation is a little like hurricane Sandy–a confluence of conditions that combined to create a sort of superstorm of legislative manipulation:  first came the GOP midterm landslide in 2010, which happened to be a census year.  After a census, US congressional districts have to be redrawn to reflect the redistribution of our population.  Add to this ever-more deft computer programs that can slice votes by street and create incumbent-safe districts more effectively than even the cleverest back-room dealers and you have a Republican House majority that is basically secure from the voters for a decade.  In fact, as Dana Milbank points out in the Washington Post, the Democrats would have had to have won the House elections by a total of over 7% just to earn a slim majority in the House.  Somethin’ don’t smell right.

The same thing is true at the state level. In almost all of the “purple” or swing states that went for Obama (and all but NC did), Republicans enjoy a solid majority in the state legislatures, and the implications for all of this are potentially alarming.

First, it’s going to be very difficult, given the current intransigence of a large portion of the GOP House caucus, to get things done in Congress at a time when the country urgently needs things to get done.  The tired refrain from some pundits that the voters chose divided government doesn’t hold up:  they chose Democrats, and this choice was reflected in the results in the presidential and senatorial elections, but not the house elections.

Second, Republicans have not been dissuaded by the failure of their voter-suppression efforts in 2010.  They are still looking for alternate routes to the White House that don’t involve winning a majority, which looks for the moment, apparently, like just too steep a hill to climb, so bills have been put forward in all of the swing states controlled by Republicans to change the way these states assign their electoral votes.  Instead of giving all of their votes to the winner of the popular election in their state (which is what everybody but Maine and Nebraska now do), the idea would be to assign a vote for each congressional district a candidate won.  Had this been the case in the last election, Mitt Romney would have lost PA, VA, OH, WI and MI, but he would have won a clear majority of those states’ electoral votes and he would have won the election.

Like the voter ID laws that passed in so many states, this proposal seems reasonable to some people on its surface, and I think this starts with another case of voter ignorance.  Just as Americans don’t know how their congressional districts are drawn, I think many assume the winner-take-all method is mandated by the Constitution.  It isn’t.  States can apportion their electoral votes however they want to.  Technically, they can have their state legislatures vote for the president directly (that’s how we used to pick senators, by the way).  Nothing in the Constitution even says they have to hold an election, though it seems likely to me that failing to do so would be in violation of the voters’ 14th amendment rights).

So not knowing how it’s done in the first place leaves a voter, I think, more vulnerable to greasily reasonable-sounding arguments.  This fall in discussing the voter ID laws, I had many otherwise liberal friends say to me, echoing GOP talking points, “but you need an ID for everything these days.  What’s the big deal?”  The fact that a) buying liquor or renting a car is not a constitutional right at the bedrock of our democracy and b) that studies consistently showed that the voter ID movement was a solution in search of a problem–that essentially NO in-person voter fraud existed in US presidential elections–made very little impact.  To a reasonable person without a full understanding of the system and how it works (or doesn’t), this sounds like a reasonable proposal.

I worry that the same will be true of these measures to change the way electoral votes are awarded.  The message fits with the overall GOP message:  government that is closer to home is better.  Why have your votes thrown into a big pot with everyone else in your state when you could have the fairer and more precise system of awarding the votes by Congressional districts?  Even typing it, it sounds okay to me.

And it might be if Congressional districts were like states:  shaped largely by historical and geographic forces and somewhat organic in their composition.  Indiana, to chose an example, was not created for the benefit of any political party, and even if it had been, it was created more than 150 years ago.  Indianans today are likely to vote Republican, but that is not because a Republican consultant wielding a powerful computer program carved Indiana out of the map to guarantee that only Republicans could win there, but that is precisely what almost all of our Congressional districts now are.  They currently almost guarantee that the will of the electorate will not be represented in many states’ house delegations, and with a little legislative used-car salesmanship, they could do the same for the White House.

The lesson here?  Well, I think there are several.  First, it’s not okay not to know how these things work.  It’s more than just depressing that most Americans lack even a fundamental understanding of the workings of their government (a Newsweek survey here is both amusing and distressing in what it reveals about our collective civic ignorance); it’s actually dangerous. Second, much of what matters is decided at a lower level than most voters perceive.  In other words, the current battles in the House over fiscal matters were largely set in 2010 when Congressional districts were drawn.  Now that the representatives are there, most of the action is a foregone conclusion.

What to do, then?  First and foremost, I think, is to keep our eye on your legislature.  If you live in one of those purple states mentioned above, it’s not unlikely that you’re a Democrat represented by a Republican.  Make sure you let him/her know that you’re paying attention and will raise holy hell if the GOP messes with the winner-take-all system in your state.  Make sure you talk to your friends about this.  I believe that most voters in all the states, regardless of their political leanings, want elections to be fair and represent the will of the people.  While it may seem hopeless to try to influence locked-in GOP majorities in these purple state legislatures, they need to be reminded that many of the people who voted for them might lean Republican, but identify as independent, and part of the pride of that identification lies in a disdain for partisan game-playing and a desire for honest and fair politics.  Piss enough of them off and you’ll find out your safe seat is more wobbly than you thought.  It’s important to remember, too, that tidal shifts happen in politics and can happen quickly.  It would have taken a 7% overall margin for Democrats to flip the house, but that’s about the margin they had in 2006 and 2008.  A couple of elections like that and your representative could be back to working for a living (unlikely–he’ll just become a coal or gas lobbyist, but you get the idea), and eventually these districts will be redrawn.

Speaking of which, there are other ways that legislative districts can be shaped, and the Governator, Arnold Scwarzenegger, of all people, proposed a plan in California when he was first elected that would have mandated that districts be created by an impartial, bi-partisan panel of retired judges.  Of course, the Democrats blocked that idea in the Golden State, but that doesn’t make it a bad one.  Writing letters to your governor and state representative encouraging them to come up with a better, more fair and less partisan way of determining your representation is a good idea.

Finally, the whole messy business of electoral votes could be done away with entirely with a national popular vote.  This is another subject for another post, and it’s a controversial one.  There are cassandras who predict all sorts of political disaster if we were to do away with the electoral college, but I think the acid test for its worth comes from this question:  if we were starting this country tomorrow and had never heard of the electoral college, would anyone ever invent it?  I don’t think so.  The problem with getting rid of it isn’t in the consequences, I think, but in the actual doing of it.  It would require changing the Constitution, and that is hard, and it’s tough to foresee a circumstance when the many small states who benefit disproportionally from the system would give up their advantage.

But there’s a way around that.  There’s another route, and while it seems complicated, it’s actually pretty elegant:  As I said before, it’s up to the states how they apportion their votes.  Short of a coin-flip, the Constitution gives them lots of latitude, and several states have passed laws that would, if adopted by enough states, give the election to the winner of the national popular vote regardless of which candidate won their stateIt essentially amounts to a pact among states.  So far eight states and the District of Columbia have passed laws that will award all of their electoral votes to the winner of the national popular vote, but these laws will only take effect when states with electoral votes totalling 270 (a majority) have passed similar laws.  Right now, they’re at almost half the electoral votes they need.  Unlike an amendment, which would require 3/4 of the states (or 38 total), this pact could be passed by about a dozen and a half and the electoral college would, essentially, make itself irrelevant.

So, there are things we can do, and as much of a pain in the ass as it is, we have to pay attention, and not just every four years when the two sides will spend a couple billion to convince thirteen people in Ohio to vote for one guy or another for President.  We have to pay attention all the time because everybody has skin in the game, and the people trying to manipulate this system don’t wait for leap years to do their work.  They’re at it constantly, and if we’re not paying attention, they’ll steal our voices before we have a chance to open our mouths.