Wednesday, November 2, 2011


The latest from my native Grand Canyon State: Arizona went through a spasm of Good Government redesign a while ago, passing campaign finance and redistricting measures designed to take the politics out of politics, or something like that. Regular readers will know that I'm not generally a fan. But that's not the story here. The story is about their newish redistricting independent commission. It reported back a plan that failed to help Republicans, and the Republican Governor and the Republican State Senate responded by...sacking the (independent) chair of the commission. As Greg Sargent puts it, it's a "Scott Walker style power grab."

This gets back to the issue of "Constitutional hardball" -- efforts to exploit loopholes or ambiguities in the rules of the game in order to win short-term partisan gains. Constitutional hardball has simply become the norm for Republicans these days. Sometimes it's relatively harmless, such as the recall election of Gray Davis in California.  But it can also be high stakes and have major consequences. The current major example, other than the AZ redistricting thing, are the efforts to rig the electoral college for Republicans by changing Pennsylvania and Wisconsin to a districted electoral vote scheme instead of the traditional winner-take-all. That's a big deal and quite outrageous, in my view. 

But the one I'm really worried about is what would happen if the Democrats narrowly defeat a Republican candidate in the presidential election. Could Republicans accept it It seems unlikely, doesn't it? The nightmare scenario is that Democrats win the presidential election by a handful of Electoral Votes; Republicans allege fraud, but fail in attempts to overturn it in the courts; and then in one or more states that voted for the Democrat but have Republican state governments, the legislature nullifies the states' election and installs a slate of GOP electors. 

That could happen either in a state where fraud was alleged (as was threatened in Florida in 2000, although in that case it was a threat to overturn state judicial rulings, not about fraud in the voting per se), or it could happen in a completely unrelated state acting in sympathy with the supposed victims of corruption in a Dem-run state. Either way, it's hard to imagine the effects on US democracy. It's one thing to have an election turn on regular, if unusual, judicial proceedings; it would be quite another for the current incumbent party to essentially nullify an election. 

Could it happen? I'd have to say that at this point I'd almost expect it to, if the conditions allow it. Let's see...if there's a very close race, it's virtually certain that there will be accusations of fraud in one or more very close states, and that solid partisans will mostly believe those accusations (remember, many on the left believed, and probably still believe, that the 2004 election was stolen in Ohio, although the evidence does not support those claims). The question is what the losers would do about it. Take it to court? Of course; that's what Al Gore and George W. Bush did in 2000, and Richard Nixon did in 1960. But would they take the extra step to legislative nullification? That's the harder question. I believe it's likely, but there's no hard evidence one way or another.

Now, whether the opportunity would ever arise is another question. Elections that are close enough that a handful of electoral votes could make the difference are rare. And of course generally one would expect states with solid partisan legislatures to go the same way in presidential elections. Since you need enough electoral votes in the nullifying states to successfully flip the election, that narrows it further (depending, that is, on how close the national vote is); usually a New Hampshire isn't going to do the job. 

But if it did happen? Yeah, it's a nightmare, alright. And the more we see things such as the Arizona redistricting thing, the more likely it seems to me that the current crop of Republicans would do exactly that if the opportunity ever occurs.


  1. These kinds of concerns are frequently met with the suggestion that they would not arise under the National Popular Vote ("NPV") proposal. In fact, NPV would be far more susceptible to this kind of gaming, although it would take different forms.

  2. Alkali: Would be interested to hear you elaborate on that point.

  3. Gray Davis recall was not "relatively harmless." California is one of the world's largest economies and the country's most populous state. The specific "trigger" for the recall, after Enron speculation ran energy costs through the roof, was Davis raising the car tax, which as I recall would have added $4 billion to the budget. It was reversed by Schwarzenegger, who then went on to borrow more money in order to pay for the already borrowed money. If something so unthinkable as raising taxes and fees could have continued under Davis, California's fiscal mess might not be as enormous as it is now. Unemployment might be lower. Etc.

  4. Take a deep breath. If Obama (or some future Dem) were to win by a single state, the closest one would be a swing state (OH, PA, FL, VA), etc. With a divided electorate and the whole world watching, it's unlikely that that wouldn't boomerang upon the right-wing pettifoggers with sevenfold force (though 2000 showed that if an election is close enough, the side with the most will and muscle wins). But the odds get even longer if the insurgents have to flip multiple states to reverse the results.

    Not that I would put anything past the hard right, but something like that would just as likely blow up the Republican party in that state (splitting the moderates/uncrazy from the radicals) as actually overturn an election.

  5. Back in the 20th century, I used to think that a candidate winning the electoral college while losing the popular vote was the "nightmare scenario". I used to think that, in that situation, people would be so horrified by the insult to democracy that something would happen to confirm the popular vote result - say, a group of electors would vote for the pop vote winner, or a state legislature would choose a different slate of electors, or the popular vote winner would face enormous pressure to resign. And then the Consitution would rapidly be amended to get rid of the electoral college.

    Looking back, of course, my naivete was stunning (but, I'm pretty sure, widely shared). I didn't count on the Republicans' utter contempt for the norms of democracy, nor on the Democrats' abject eagerness to appease bullies.

    So Jonathan's scenario makes perfect sense to me. I think the outcome would be that Republicans would instantly seize the narrative ("brave state legislators stoutly defend country against voter fraud"), enormous media pressure would be brought to bear on Democrats to cave, "moderate" Democrats would side with Republicans, and the Democrats would cave.

    I'm not 100% sure this would be the outcome. Maybe things have changed since 2000 - witness the fighting spirit that some Dems showed in 2006 and 2008, and that the OWS types are showing now. But I'm 85% sure.

  6. Sorry, first paragraph should say "...or the popular vote loser would face pressure to resign."

  7. Look, I'm as down on the current GOP being purely power-hungry as the next guy.
    But I'm not sure it gets us anywhere to think about scenarios like this. It's a hypothetical situation that involves people behaving quite badly. As such, it's guaranteed to raise hackles, but unlikely to do much else. I don't think we're going to solve anything having thought about this scenario. Events will spin out of control with or without our thoughtful input. So, I'm inclined to consider a topic like this as more inflammatory than anything else. Fine for red meat. But it doesn't get us much of anywhere.

  8. The Republicans have figured out that the organs of the State exist to serve the Party, and not the other way round, for it is the Party, and not the State, that is the Vanguard of the Revolution.

    All power to the soviets of preachers and hedge-fund managers!

  9. Isn't the assumption that the Republicans would lose a Supreme Court challenge highly dubious given the current composition of the Court?

  10. There should be no concern about the hypothetical scenario in which a governor and legislature attempt, for partisan political advantage, to change a state’s method of awarding electoral votes after the people vote in November, but before the Electoral College meets in December.

    An attempt by a governor and legislature to change the “rules of the game” between Election Day in early November and the mid-December meeting of the Electoral College would be invalid because it would violate existing federal law.

    The U.S. Constitution (Article II, section 1, clause 4) grants Congress the power to choose the time for appointing presidential electors:
    “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” [Spelling as per original]

    Existing federal law (section 1 of title 3 of United States Code) specifies that presidential electors may only be appointed on one specific day in every four-year period, namely the Tuesday after the first Monday in November (Election Day).

    “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.”

    The legislature cannot appoint presidential electors after Election Day (i.e., after seeing the election results in its own state or other states).

    Any attempt to appoint presidential electors after the people vote in November:

    * would violate existing federal law requiring that presidential electors be appointed on a single designated day in every four-year period, namely the Tuesday after the first Monday in November (i.e., Election Day).

    * would invalidate the “conclusiveness” of that state’s results under existing federal law specifying that presidential electors must be appointed under “laws enacted prior” to the Tuesday after the first Monday in November (Election Day).

    * could only be contemplated, as a practical matter, in about three states because of the partisan division of most state governments, the significant time delay before new state laws take effect in most states, quorum requirements; and delays built into the legislative process by state constitutional provisions and legislative rules.

    * would be politically implausible in the real world.

  11. toto, you underestimate Justice Scalia if you think he can't find a way of invalidating those U.S. Code sections, and of reinterpreting Article II to permit whatever outcome benefits Republicans.

  12. @Chris: Under NPV, the popular vote winner is determined by the total of the state-by-state popular vote counts as reported by the Secretary of State of each of the states, which cannot be contested.

    Assume Smith is the secretary of state of an extremely partisan state (Vermont, or Wyoming). Nothing prevents Secretary of State Smith from reporting that his or her favored candidate received a trillion votes. Or the legislature could declare the day before the election that every citizen in the state gets a million votes.

  13. No legislature has delegated its power to select the manner of appointing the state’s presidential electors to the Secretary of State.
    The method of awarding electoral votes in each state is controlled by the state’s election law—not the personal political preferences of the Secretary of State. The role of the Secretary of State in certifying the winning slate of presidential electors is entirely ministerial—that is, the role of the Secretary of State is to execute state law.

    In the unlikely and unprecedented event that a Secretary of State were to attempt to certify an election using a method of awarding electoral votes different from the one specified by state law, a state court would immediately prevent the Secretary of State from violating a law’s provisions (by injunction) and compel the Secretary of State to execute the provisions of the law (by mandamus).

    The hypothetical scenario would not work in practice because of practical reasons, including the partisan division in most state governments, and the time delay before new state laws take effect in most states. The minority in most state legislatures can delay the enactment of new legislation through various parliamentary tactics (e.g., offering endless amendments, insisting that no action occur until pending amendments are printed, refusing to waive various notice and scheduling requirements that are ordinarily waived routinely, or filibusters). A protest referendum petition could be circulated to suspend the action of the state legislature. The filing of a protest referendum petition automatically and unconditionally suspends the effectiveness of any new state law passed by the legislature until a subsequent statewide election. Protest referendum petitions generally require only a modest number of signatures. The aggrieved political party could, almost certainly, quickly acquire the requisite number of signatures. There would, of course, be no time to hold the referendum in the short five-week period between Election Day in early November and the meeting of the Electoral College in mid-December.

  14. Are you still whimpering about your evil Faux News enemies' evil political manipulations, Mr. Bernstein?

    I guess I'll have to remind you of the Massachusetts' state legislature's musical chairs re senatorial succession, swapping out law about every 15 minutes or so, to keep the evil Faux News types from possibly subverting the legislature's angelic will as to who and how will succeed to US Senate seats.

    I realize you lefties have to whimper about your evil enemies, how they're dastardly and obviously don't comport with your sainted ways. But pardon the rest of us if we have a good larf about that. We know better, afterall.

    And after we've all stared at House districts shaped like Rohrschact tests, for decades now, all lefty approved, let's not bother whimpering about redistricting, or anybody's manipulations of same. The rest of us know better in this case, as well.

  15. @toto: The scenario I described explicitly assumes a state dominated by one political party, where the Secretary's (or the legislature's) action could be abetted by the other branches of government.

    In this scenario, a Secretary of State would not be designating a different candidate's slate of electors, but simply reporting a different popular vote allocation in favor of that candidate.

    Your suggestion that state legislatures could not act on a limited timetable is speculative. Most state legislatures do not have a filibuster, and most states do not have a process by which legislative action may be halted by a referendum petition.

  16. Practical difficulties can be appreciated by visualizing what would have happened if the hypothesized partisan maneuver had been attempted for the nation’s most recent presidential election (2008).

    In three states (Texas, Oregon, and Indiana), there is a two-thirds quorum requirement for a meeting of the legislature. Although partisan control changes from year to year in particular states, in 2008, no political party had two-thirds control of both houses of the legislature in any of these three states. Thus, it would be impossible even to contemplate executing the hypothetical partisan maneuver in these three states because the minority party would simply boycott the legislative session.

    As a general rule, no political party is in control of the governorship and both houses of the legislature in about half of the states at any given moment. In 2008, for example, no political party controlled a majority of both houses of the legislature plus the governorship (or had a veto-proof legislative majority in both houses) in 21 states (in addition to the above group of three). Thus, it would be impossible even to contemplate this kind of partisan maneuver in this additional group of 21 states (i.e., a total of 24 states in 2008) because partisan deadlock would have prevented enacting an alternative procedure.

    In 13 additional states, there are state constitutional provisions that significantly delay the time before any newly-passed state law takes effect. In these 13 additional states, a new state law does not take effect for 60 days (and, in most cases, considerably more than 60 days) after the governor’s signature. There are only about 35 days between Election Day in November and the mid-December meeting of the Electoral College. Thus, the Electoral College would have met and voted under pre-existing state law long before the politically motivated law could even take effect. In fact, the new President would have been inaugurated before the politically motivated repeal law could take effect in most of these states. The only available exception to these constitutionally-specified delays is to pass the new law as an “emergency bill.” However, emergency bills in these states require super-majorities (two-thirds, three-quarters, or four-fifths, depending on the state). In 2008, no political party had the super-majorities required to pass an emergency bill in this group of states. Because of this reality, it would be impossible to even contemplate the hypothetical scenario in this group of states.

    Summarizing the above three points, the hypothetical partisan maneuver could not even be contemplated in 39 states. There would not be any special session of the legislature because it would be self-evident that there would be no possibility of action in the brief period of time available between Election Day in November and the meeting of the Electoral College in mid-December.

    That leaves 13 states where the hypothetical partisan maneuver would have been theoretically possible in 2008 (Arkansas, Colorado, Connecticut, Florida, Georgia, Hawaii, Iowa, New Hampshire, North Carolina, Rhode Island, South Carolina, West Virginia, and Wyoming). These are states without high quorums, without significant delays before new laws take effect, and where one political party was in total control (either by controlling both houses of the legislature and governorship or veto-proof super-majorities in both houses of the legislature).

    However, this remaining group of 13 states is illusory.

    The hypothetical scenario would be irrelevant if the states where the political party in control happened to coincide with the winner "as is". We might assume about half of the states will be satisfied, this second factor would eliminate about half of this group.

    The hypothetical scenario in this winnowed-down group probably could not work in practice, in the limited time involved, because this winnowed-down group of states would not probably possess enough electoral votes to affect the outcome in the Electoral College.

  17. @Anonymous at 5:52 pm:

    Both parties are guilty of the "Rohrschact" districts, so don't pretend that it is one or the other party.

    The problem in Arizona is that they wisely decided to eliminate partisan redistricting. Now the state legislature and Governor have decided for purely short-term partisan interests to revoke non-partisan redistricting.

    This does not serve the interest of the general electorate, it only serves the interest of partisans.

  18. This does not serve the interest of the general electorate, it only serves the interest of partisans.

    The interest of the Party is identical in every instance with the interest of the People.

  19. Matt,

    I'm defending myself, here. I do think that there's something off the rails about the current Nixon/Newt/DeLay GOP, and I think it's very much worthwhile to be aware of that. Is a speculative approach appropriate? Why not?

    On all the technical stuff...interesting, but it seems to me that Congress, not the Supremes, would be the eventual arbiter of any contested electors and their votes, and I'm again fairly confident that a Republican Congress would uphold any rogue state that saved the nation from ACORN or the New Black Panthers or whatever stealing the election.

  20. dave,

    I disagree on the merits of the AZ system; I mostly have no objection to partisan or other political goals in districting. I do think, however, that whatever its merits the AZ system was legally in place, and going back and eliminating it because the results didn't come out right counts as Constitutional hardball to me.

  21. @toto: That leaves 13 states where the hypothetical partisan maneuver would have been theoretically possible in 2008 (Arkansas, Colorado, Connecticut, Florida, Georgia, Hawaii, Iowa, New Hampshire, North Carolina, Rhode Island, South Carolina, West Virginia, and Wyoming). ... The hypothetical scenario would be irrelevant if the states where the political party in control happened to coincide with the winner "as is". ... [T]his winnowed-down group of states would not probably possess enough electoral votes to affect the outcome in the Electoral College.

    The point of the scenario is that under NPV, an individual state -- regardless of the number of electoral votes it controls -- can misreport the margin of victory for the candidate favored by that state in order to shift the national popular vote.

    Suppose there were three states of equal size, A, B, and C. A is dominated by the Up party, C is dominated by the Down party, and B is split. A and B (but not C) have agreed to the national popular vote compact, thereby committing themselves to choose the elector slate of the candidate that wins of the national popular vote, regardless of which candidate wins the popular vote in that particular state.

    Election day comes:

    A correctly reports 7,000 votes for Up and 3,000 for Down.

    B correctly reports 5,100 votes for Up and 4,900 for Down.

    C arbitrarily discards 1,000 votes for Up as "fraudulent," and reports 2,000 votes for Up and 7,000 votes for Down.

    A and B have committed to vote their electors for the popular vote winner as determined by the states' self-reporting. Down is the popular vote winner (14,900 to 14,100) by that standard. C's manipulation of its own popular vote totals has shifted the national popular vote balance and therefore the election.

  22. Jonathan:

    The scenario you describe is not all that far off from what happened in 1876, although I suppose the GOP had a more viable claim to vote fraud then than they would under your scenario.

    But still, the resolution in 1876 was more or less accepted by the Democrats, despite them being a party that had walked away from the Union just 15 years earlier.

    My point being that it is very easy to overestimate how a losing party/constituency would deal with such an outcome. It could be very dangerous for American democracy, but I also think it could be very Bush-2000ish, in which there is a lot of rhetoric that colors politics, but not much that fundamentally shakes the republic.

    On the other hand, I think there are scenarios that are just as plausible but far more dangerous: for example, a winning candidate assassinated by a partisan prior to the electoral college casting votes. Something like that, I think, could be very, very dangerous.


  23. I have to admit that my knowledge of 1876 is barely beyond high school history level, but I thought that the Dems traded the presidency for, basically, one party apartheid in the South. No? That wouldn't be similar to an election that ends with a clear victory for one side.

    But: yes, I agree that it's possible that it could all fizzle out very quickly. I said that it would be hard to imagine the effects, and I'll stick with that.

  24. The National Popular Vote bill deals with the possible death of a winning candidate.

    Agreement Among the States to Elect the President by National Popular Vote

    “presidential slate” shall mean a slate of two persons, the first of whom has been nominated as a candidate for President of the United States and the second of whom has been nominated as a candidate for Vice President of the United States, or any legal successors to such persons, regardless of whether both names appear on the ballot presented to the voter in a particular state"

  25. The current state-by-state winner-take-all system of awarding electoral votes maximizes the incentive and opportunity for fraud. A very few people can change the national outcome by changing a small number of votes in one closely divided battleground state. With the current system all of a state's electoral votes are awarded to the candidate who receives a bare plurality of the votes in each state. The sheer magnitude of the national popular vote number, compared to individual state vote totals, is much more robust against manipulation.

    National Popular Vote would limit the benefits to be gained by fraud. One fraudulent vote would only win one vote in the return. In the current electoral system, one fraudulent vote could mean 55 electoral votes, or just enough electoral votes to win the presidency without having the most popular votes in the country.

    Hendrik Hertzberg wrote: "To steal the closest popular-vote election in American history, you'd have to steal more than a hundred thousand votes . . .To steal the closest electoral-vote election in American history, you'd have to steal around 500 votes, all in one state. . . .

    For a national popular vote election to be as easy to switch as 2000, it would have to be two hundred times closer than the 1960 election--and, in popular-vote terms, forty times closer than 2000 itself.

    Which, I ask you, is an easier mark for vote-stealers, the status quo or N.P.V.[National Popular Vote]? Which offers thieves a better shot at success for a smaller effort?"

  26. JB is correct that the election of 1876 was not really stolen. It was settled in a backroom deal that gave the Democrats (of that day) something they badly wanted, the withdrawal of federal supervision from the defeated Confederacy. Especially given the weaker presidency of the time, one-party rule over a third of the country, plus unrestricted power over a large share of that region's population (something the Supreme Court helped out with too), were pretty big rewards for something as minor as putting up with Rutherford B. Hayes for a few years.

  27. Both parties are guilty of the "Rohrschact" districts, so don't pretend that it is one or the other party.


    Well, far be it from me to take the side of either of these 2 stupid political parties, but the majority-minority business is at the root of most of the Rohrshact shaped districts, in most cases. Here in Michigan, certainly. And the Left is the prime driver behind that majority-minority business.

    Ditch that, and the districts flatten out, and I'd submit that the Left would be more competitive electorally. Right now, if you notice, the Left has jailed themselves up in urban bantustans, and are basically going extinct in rural districts. The Left holds the key to their own jail cell, and it'd probably be a good government move if they opened that cell for themselves.

    Half the Detroit political class has been sent to jail in recent years, including Conyers' wife. It is criminal that this guy is being handed a sinecure, election after election. And it's killing the Left that he is, as he's a waste of oxygen.

    But I'm sure your evil Faux News enemies will conspire with the incumbent D's in the Detroit area, and accept your decision, and keep frontloading that district into a near 70-30 split, so the incumbent can stick around forever. And the adjacent Rohrshact districts can be manipulated to advantage, at the same time.

    The fair place, the good government place, is to get those districts more competitive than current. You lefties have to participate in creating that place. You're not, currently. So don't cry about what your evil Faux Enemies are doing. You're equal participants, or worse.

  28. Here's my nightmare involving the GOP's constitutional hardball. Suppose the economy is bad enough that Obama loses. Suppose the GOP regains the Senate too, as seems likely, especially if Obama loses. Why should we expect the filibuster to be retained? Probably it is not a flat-out dismantling. But, considering that they had no qualms about using reconciliation to get the Bush tax cuts, I don't see any they will have any qualms about gutting the filibuster in order to get cuts as drastic as they feel like. Or anything else they want. Maybe Ryan's new plan is even worse than his 2012 one. How bad could it get with no filibuster? I suspect we're going to find out.


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