by scrivener76/Daily Kos
As we all know,one hot topic here over the last few weeks has been the planned Republican coup d'état of rigging the electoral vote system in Virginia, Wisconsin, Pennsylvania, Ohio, and Michigan such that votes will be apportioned by Congressional district and not statewide vote. And one comment I have seen repeatedly is that, if this is pulled off, it is plainly constitutional because of Article II, Section 1, Clause 2 of the Constitution:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.Every time I see this, I want to scream. Yes, the Constitution allows states to choose the method of selecting presidential electors. But the method they choose must otherwise comply with the Constitution, including the Equal Protection Clause. Don't believe me? Here's the majority decision in Bush v. Gore:
The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. . . . it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors.531 U.S. 98, 104-05 (2000). The Court cited for this proposition two earlier cases dealing with state elections: Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665 (1966) ("[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment") and Reynolds v. Sims, 377 U. S. 533, 555 (1964) ("the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.")When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. . . . The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise.
So let's get that out of the way. The fact that the Republican state legislators are allowed to select the method of electors is not the end of the story. They are still (for now) allowing people to vote; therefore, these plan must be consistent with equal protection.
There do not appear to be any precedents expressly dealing with a plan to divide electoral votes by congressional district instead of by statewide vote. The constitutionality of the Maine and Nebraska systems have never been addressed by the Supreme Court (or any appellate court for that matter), so their existence is not proof of the current plans' constitutionality.
After the jump, I'll discuss some basic law regarding equal protection principles (including one-person, one-vote) from Congressional gerrymandering cases which are relevant here. I'll also argue that the current Supreme Court likely has 5 votes that would agree that a political party's use of politically gerrymandered Congressional districts to entrench itself in the White House contrary to the popular will of each state's citizens is unconstitutional.