Republicans in many states are pursuing two avenues to tilt elections their way—changing the electoral college rules in the middle of the game and using laws and regulations to block likely Democratic voters from exercising their legitimate franchise. Both ploys demand new thinking to enhance our elections, not constrain them in partisan ways.
The former effort is led by Pennsylvania Republican lawmakers and their governor, who are moving to alter the way Pennsylvania counts its electoral votes. Pennsylvania, it almost goes without saying, typically votes Democratic in presidential elections. If the Republican plan succeeds, Pennsylvania will move from its standard of winner-take-all for its 20 electoral votes to a system where 18 of those votes would be allocated by the winner of each congressional district—meaning, with the gerrymandered districts created by the Republicans, that 12 of the electoral votes would probably go to the G.O.P. nominee, even if Barack Obama carried the state.
"Instead of having way too many incentives for states and parties to conspire to keep voters from voting, it is time to think about ways to create incentives to expand voting."
This could create a crisis of legitimacy in 2012 that would make the disputed 2000 election look like a minor fracas. Imagine if Barack Obama won the national popular vote, and the statewide vote in Pennsylvania, and was denied reelection only because of a partisan law enacted with the clear purpose of thwarting the voters’ will.
It is true that Pennsylvania, like all states, has the right to decide how to count its electoral votes. Two states, Maine and Nebraska, have long used the formula Pennsylvania is considering, one giving two electoral votes to the statewide popular vote winner and allocating the rest by congressional district. It is also true that Nebraska, a reliably Republican state, has considered moving to the norm of winner-take-all, only because Obama won one electoral vote in 2008 from a Democratic congressional district.
It is also true that many opponents of the electoral college, pessimistic about the chances of a constitutional amendment abolishing the college, have pushed to get all states to change to the Maine/Nebraska formula—but that means every state, not ones moving selectively for purely partisan purposes. As for those who say that the Pennsylvania change could cut the other way—hurting the Republican if he or she won the state popular vote—that is far-fetched. If Obama cannot carry Pennsylvania, he is unlikely to prevail in general.
The second avenue is multiple efforts in the past two years by a large number of states to narrow the franchise for partisan political gain. These states have moved to alter their voting rules, both by instituting tough voter ID laws and by using other ploys like disenfranchising previously legitimate former felons, eliminating same-day voter registration and cutting back on early voting in areas where Democrats have taken advantage of the opportunities—including, for example, Florida, which has eliminated early voting on Sunday, a clear slap at African-Americans whose churches have mobilized major get-out-the-vote efforts.
A new study reported by the Associated Press in South Carolina shows that it is African-American voters who are disproportionately hurt by the state’s new voter ID law; in Texas, the political intent of its voter ID law is made clear by the fact that voters can use a concealed weapon permit to vote—but not a student ID. In New Hampshire, the Republican House speaker was caught telling a Tea Party gathering that he supported the law because it would decrease student voting, and “They’re foolish. Voting as a liberal, that’s what kids do.”
Efforts to alter voting rules are not new, although concerted efforts to raise roadblocks for voting, instead of trying to make it easier and expand the franchise, haven’t been this evident since the days of the poll tax. Perhaps there is a new way, though, to consider changing incentives for parties and election officials to expand voting rather than to contract it.
The 538 electoral votes that select our president are allocated to states by population, calculated by giving each state one electoral vote per congressional district and two for its senators (with three, the same as small-population states like Alaska and South Dakota, for the District of Columbia.) One way to counter the Pennsylvania ploy is to add a bonus of 10 or 20 electoral votes to the nationwide popular vote winner. This is not a new idea; it has been bandied about for years. But it might have more credence when juxtaposed with efforts like Pennsylvania’s to tilt the system.
Here is a new idea to complement it: create the electoral equivalent of education’s “Race to the Top” program—a competition for excellence with both rewards for success and punishment for failure. Suppose we keep the basic electoral formula, but take 10 (or 20) electoral votes and allocate them in a different way. The 10 states that end up with the lowest turnout rates compared to the overall national turnout (based on percentage of all voters in the state, not percentage of registered voters) each lose one or two electoral votes, and the 10 states that have the highest turnout rates get a bonus electoral vote or two.
The determination and allocation could be done either by the Election Assistance Commission, the Census Bureau or by a new nonpartisan panel of experts. All of a sudden, officials in each state, large and small, would have very different incentives in presidential election years. Efforts to disenfranchise or discourage targeted voter groups, or to make it harder for voters to get IDs, register, or turn out, whether early or on Election Day, would have a serious potential penalty.
One or two electoral votes may not sound like much, but when you look at the effort states put in to securing an extra one when reapportionment occurs every 10 years, you can see that it means a lot to them. Pennsylvania, for example, lost one this time around. In a close presidential election, each electoral vote can matter—and a small state that is likely to end up on top of the turnout list can have greater leverage to attract presidential candidates’ attention and time. Then of course there is the prestige of winning and the ignominy of ending up at the bottom in a democracy contest. Efforts to maximize turnout, by expanding registration efforts, enhancing voting opportunities and the voting experience, and engaging in vigorous get-out-the-vote drives, would bring a significant increase in the state’s clout.
Of course, implementing a bonus plan of this sort would not be simple. Making sure states did not use chicanery or trickery to inflate their turnout would take some effort. In a few elections, determining actual turnout, given the number of provisional and contested ballots, might take days or weeks, potentially throwing election outcomes into limbo. One would not want to encourage more states to expand voting by mail to enable people to vote many weeks or months before an election, exacerbating the problem of people voting without full information. And, at least in theory, a minority party in a state might decide to discourage its adherents from voting to reduce the electoral count when the presidential winner in the state is certain to be from the other party. That is unlikely, however, because the failure to vote would mean losing other down-ballot races, for Congress and state and local positions.
But these potential difficulties or roadblocks can be overcome. Instead of having way too many incentives for states and parties to conspire to keep voters from voting, it is time to think about ways to create incentives to expand voting. A voter participation bonus maintains the electoral college and the incentives for candidates to campaign in small states as well as the big population centers. That should reduce the resistance to the necessary constitutional amendment.
Add in a new electoral Race to the Top and we have a win for voters and a win for democracy itself.
The vote is the single most direct connection people have to their political system; many died or were beaten during the civil rights era to protect and expand the right to vote. Make that vote count even more by adding a bonus and enhancing the legitimacy of the winner, and it strengthens our democracy.
Norman J. Ornstein is a resident scholar at AEI