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A New Illegal VA Senate Bill: Electoral College Bill Violates Voting Rights Act

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( – promoted by lowkell)

by Paul Goldman

If the VA GOP would stay up nights figuring out how to develop a winning message, instead of coming up with backroom schemes to negate the results of our elections, they might be threats to win the governorship in 2013 and the presidency in 2016. But this would require actually trying to develop sensible solutions to real problems. As Governor McDonnell concedes, it would likely require eliminating inefficiencies in our laws to better balance the need for funds to do such things as fix a crumbling infrastructure, and potholes in our educational system.

But why fix a real problem when you can avoid responsibility by rigging the rules of the game in your favor?

The latest case in point: The Virginia Senate Republicans’ most radical power grab yet, an attempt to reverse the results of the 2016 presidential election. But you say: “Paul, get a grip, this is only 2013, even Virginia Senate Republicans don’t have that kind of pull with God.” I don’t know: Didn’t legendary Republican Jerry Falwell say God was a Republican?

But if they don’t have God’s ear, surely they have been given a sneak peak into UVA Virginia Professor Larry Sabato’s legendary crystal ball. What does it say? All things being equal, the 2016 GOP presidential candidate figures to lose Virginia once again. Without those crucial 13 electoral votes, the party’s chances of winning the White House are not likely to be any better than in 2012.

So what are the Republicans, beginning to look more and more like the Whigs of the 1850’s, to do? Surely not the hard work to get better grades from voters. Why not simply change the way they grade the test?

 

Enter then, the latest VA GOP Senate legislation, sponsored by Southwestern Republican State Senator Charlie Carrico. He claims the state’s long-standing “winner take all” system of allocating all of the state’s electoral college votes to the winner of the statewide popular balloting is unfair to his rural constituents.

But if that were true, then why isn’t he likewise trying to change the way we pick the governor? The same arguments apply. Why not do it by allocating votes per CD or House district? There is no federal Constitutional requirement mandating popular election of a governor.

Perhaps that’s next for Republicans. But right now, the boys club is focusing on changing the way Virginia allocates our 13 electoral votes in the 2016.

As Professor Mark Rozell of George Mason would point out, you don’t need to take his widely respected graduate school seminar to learn the political math.

This past November, President Barack Obama got all of Virginia’s 13 electoral votes by winning a narrow popular majority. Yet even the hapless Mitt Romney managed to carry 7 of the state’s 11 Congressional districts.

This is likely to happen again in 2016, all things being equal. Thus the GOP reasons: If VA’s electoral votes were instead allocated by the method used in Maine and Nebraska, the Republican candidate could “win” Virginia even while losing! Let me explain.

In those two states, the candidate getting the most popular votes statewide gets 2 electors. This equates to the state’s two U.S. Senators. All the rest are allocated based on which candidate wins the most popular votes in each congressional district irrespective of whether that candidate loses the overall statewide vote.

How would this math have worked in 2012 here in Virginia? Since Obama won only 4 Congressional districts, and Romney took the rest, this would radically alter the electoral college math as such: the GOP nominee would have been awarded 7 electoral votes, and the president only 6!

Meaning: Instead of Obama getting a net 13 electoral vote win in Virginia, the hapless Mr. Romney would have actually received a net 1 margin!

Or put another way: The inept Romney-Ryan campaign, despite incredible strategy mistakes, would have “won” Virginia.

To be sure, the Electoral College system of electing our president has long been controversial. Virginian James Madison, generally considered the “father” of the U.S. Constitution, personally preferred a direct popular vote if I remember correctly. The Electoral College system itself emerged as a compromise.

Folklore says the small states demanded the system, fearful any popular vote approach would give larger states too much power. However this is not the whole story. Small states like Delaware surely agreed with the folklore.

But what is forgotten 226 years later is the following: the use of the electoral college system enhanced the power of the slave states over the free states. The 3/5 clause in the Constitution is one of the document’s understudied parts. While slaves would not count in a popular vote scenario, they counted big time under the electoral college system because of the mathematical role the clause played in determining a state’s congressional delegation. The 3/5 clause counted a slave as 3/5 of a person for purposes of determining the state’s population when it came to dividing up the House of Representatives.

Thus the big losers in the Electoral College were the Northern free states: the big winners the small states and the slave states. Madison understood, as did Bostonian John Adams.

As a matter of personal belief, I would go to the direct election of the president, the way we elect our governor. However, there is no “right” way to elect a president in terms of pure theory. Why? Right now, the right to vote is controlled in large measure by individual state laws, both de jure and de facto. Thus, going to a “straight” popular vote for President doesn’t guarantee all Americans are treated equally.

Like it or not, whatever system a country chooses is a mixture of philosophy in its purest form and politics often in its rawest form. This is the practical reality.

So in that regard, it is neither “right” nor “wrong” to have a “winner take all” system as opposed to the type of math being proposed by Senator Carrico.

However, whatever your personal or philosophical choice, there is one constant: the law. As Justice Holmes said, it is the only thing between us and the jungle. It is also, in terms of changing Virginia’s allocation of electoral votes, the one thing Virginia Republicans appear to have forgotten.

Namely, the Voting Rights Act of 1965. The VRA is a major reason the state’s 11 congressional districts are gerrymandered in their current form. The same for the districts of the House of Delegates and State Senate.

Why? The VRA’s main purpose is to prevent backroom political schemes which “dilute” the power of the state’s minority voters. It does this by setting as a marker the state of Virginia’s electoral statutes and practices at the time of the passage of the VRA. Any change is not lawful if it runs afoul of the VRA’s mandate to prevent any “dilution.”

Even those of us who still count using our fingers can figure out the self-evident: minority voters supplied the margin of the President’s winning Virginia’s 13 electoral votes. Thus if you adopt the Carrico plan, the power to determine who gets these votes is hugely “diluted” from a net 13 win to a net 1 loss based on 2012. But even if you assume other vote patterns, there is one constant stat: any chance to the “winner take all” approach will reduce the power of minority voters at the presidential level in Virginia compared to the present.

Moreover, the VRA itself, by mandating the creation of a majority minority district (Bobby Scott’s 2nd district) has created this very situation. Thus it would be “Alice in Wonderland” for the VRA to mandate the current congressional districts, but at the same time be “jake” with using those CDs as the basis of a scheme to “dilute” minority vote power at the presidential level.

Whatever the merits of Mr. Carrico’s approach – I will leave you to debate this point – it is unlawful under the Voting Rights Act of 1965 as amended.

Again, if Republicans would put all that energy into fixing real problems, as opposed to creating new illegal ones, they might prove to be a threat in 2013 and 2016.

But Democrats can rest easy for now: the GOP wants to emulate the Whigs, the party Abraham Lincoln quit (before it folded), as opposed to the Republican Party he joined  – and led to victory.