"Virginia State Senate Moves Ahead on Electoral College-Rigging Bill."

What, exactly, makes this "rigging"?

Is Posner wrong about the value of letting swing state voters determine who will be President?

Jaltcoh thinks so, and I push back in the comments.

Richard Posner gives 5 reasons to keep the Electoral College.

In case you want to contemplate the unachievable goal of getting rid of it or you just want to learn to love what you can't avoid.

After the 2000 election, I read 3 books, published in 1971/1972, dealing with the inquiry into the Electoral College that grew out of the very close 1960 election. The great constitutional law scholar Alexander Bickel wrote one of the books, "Déjà vu: Reform and Continuity; The Electoral College, the Convention, and the Party System." Here's the PDF of the article I wrote about it.

Posner doesn't mention one benefit to the Electoral College that was considered very important back in the 1960s: the perpetuation of the 2-party system. From my article:

Although the electoral college does not eliminate third parties, it suppresses them. Only the geographically concentrated third party can gain electoral votes. If third parties have a role to play, one should argue that it is the third party that transcends state borders that is more likely to infuse the political debate with worthy new ideas; better a Henry Wallace than a George Wallace. Despite the disturbing ability of a third party candidate like George Wallace to make headway in the electoral college system by appealing to regional prejudice, that candidate did not succeed. The threat he posed within the electoral college system was overshadowed, at least for some observers, by the potential under the direct vote system for multiple candidates to jockey for position in a runoff or to seek to provoke a runoff and then bargain with candidates who might need to make deals or concessions to win in the runoff. Withdrawing the need to win a plurality in a state to acquire votes would energize third parties who tapped national popular issues. More candidates would enter the field, creating a greater likelihood of a runoff election and lowering the percentage necessary to qualify for the runoff. What if moderate candidates cancelled each other out, resulting in a runoff between two ideologues or extremists? What would stop major party candidates who failed to win their party's nomination from routinely joining the race? Instead of opening the democratic process to greater participation, one might end up with a small crowd of “demagogues, quick-cure medicine men, and ... fascists of left and right” who would collude among themselves.

The perceived need to preserve the 2-party system led the ABA to identify 6 other reasons why it would continue without the Electoral College:

... (1) the tendency of an existing form to persist; (2) the use of plurality votes to determine the winners of single member districts; (3) public consensus; (4) a supposed American cultural homogeneity; (5) political maturity; and (6) the natural tendency toward dualism. 

Yeah, I know: what?! But that's what they said. You may wonder what's so damned good about the 2-party system. But a key point was: You can't amend the Constitution without the votes of the present members of Congress and the state legislatures, and these folks are all there as a consequence of the 2-party system. The argument they made out loud was that the 2-party system produced stability and moderation.

"Officials in New York, New Jersey, and Connecticut have asked power companies to concentrate on bringing electricity back to polling places first..."

"... but they aren't betting on that."

‘‘Some of the voting machines do have battery backup,’’ New York State Board of Elections spokesman Tom Connolly told the Associated Press. ‘‘We are also planning to get generators to polling sites, but it’s not like we have an unlimited supply of generators.’’ In New York City members of the Board of Elections have been assessing the damage to polling places, and Mayor Bloomberg said they might have to use alternative locations in some cases. The Daily News reports that in devastated areas like Breezy Point and the Rockaways, voting may take place in tents equipped with generators.

While Christie has been occupied by relief efforts, in New Jersey Secretary of State and Lt. Gov. Kim Guadagno said on Thursday that the state is planning to deploy military trucks to polling stations that have lost power. Guadagno said people at these locations will vote using a paper ballot....

Presumably, there will be a way for everyone who tries to vote to be able to vote, but fewer people will try. There's some complacency: "Since the states hit hardest are all solidly blue, lower voter turnout won't swing the presidential election...." The state gets the same number of electoral votes regardless of how many people actually vote. That means, however, that lower turnout concentrates the power of those who do vote. If enough of the "red" people in those blue states get out when the "blue" people stay home, the state — and all its electoral votes — could go to the "wrong" candidate. Or do you imagine that would only happen if the election ended up being a blowout for Romney anyway?

How far back do you need to scroll in the history of Electoral Maps to get to a year where New Jersey/New York/Connecticut picked the Republican? 1988 to get New Jersey and Connecticut. 1984 to get New Jersey and Connecticut and New York. 1984, of course, was a complete blowout for Reagan, with Mondale getting only his home state of Minnesota, but 1988 was pretty much of a blowout too.

A recent New Jersey poll — just before the hurricane hit — had Obama ahead by only 10 points. He won by 16 points in 2008, and older polls showed him with a bigger lead. It's not inconceivable that the state that elected Chris Christie could choose Romney even without a hurricane-depressed turnout.

Swing state tracking poll: Romney 51%, Obama 45%

Romney's up 6 in today's Rasmussen swing-state poll. The last time anyone was up 6 in this poll, it was October 4 and Obama. That means Romney has gained 12 points in 3 weeks.

Romney is up 4 in the regular tracking poll. You might think that because Romney is further ahead in swing states that he does not have a problem with the Electoral College, but he does:

The Rasmussen Reports Electoral College projections now show the president with 237 Electoral Votes and Romney 206. The magic number needed to win the White House is 270. Eight states with 95 Electoral College votes remain Toss-ups. In addition to Florida, the battleground states are Colorado, Iowa, Nevada, New Hampshire, Ohio, Virginia, and Wisconsin.

There are 8 state's Rasmussen is calling toss-ups, but the swing state poll covers 11 states. The additional states are Pennsylvania, Michigan, and North Carolina.

I hope we don't get another misalignment between the popular vote and the Electoral College, and I hope the election produces a clear winner, so we don't need to feel that the outcome might have been affected by fraud or vote suppression of any kind. Or do you think that it's better for the winner to know he barely made it and needs to be more appeasing/compromising/reaching-across-the-aisle with the other side? Or is your answer to that last question yes only if your guy loses?

I really wonder why Obama has been able to keep it as close as it is. With the economy so bad, the unpopularity of Obamacare, and what happened in Libya, he should have fallen far behind by now. If the American people don't see fit to reject him soundly, we will either have 4 more years of Obama or a Romney administration with a paltry mandate.

"Wisconsin: Obama 49%, Romney 49%"

New Rasmussen poll.

If Romney wins Wisconsin and New Hampshire, he'll win the Electoral College even without Ohio. Right?

"Wisconsin May Be the New Ohio."

Says Scott Rasmussen.

ADDED: Speaking of Rasmussen, the Rasmussen tracking poll today is the same as yesterday — Romney 50%, Obama 47% — which is interesting since today's poll includes — in its average of 3 days — 2 days of post-debate polling and yesterday's included only 1. That is, that last debate seems to have had little or no effect.

The distinct possibility of a 269 to 269 tie in the Electoral College.

Yesterday, I clicked my best guesses on the "Create Your Own" Electoral College map, and it came up 269 to 269! (In case you're wondering: I gave Obama Ohio, New Hampshire, Pennsylvania, and Wisconsin, and I gave Romney Iowa, Colorado, Nevada, and Florida.) I was shocked!

We talked about this topic 3 weeks ago, when Nate Silver speculated about it (and noted that the constitutional method for producing an outcome is quite likely to give the election to Romney). At the time, Silver said it was "quite unlikely":

Of the 25,001 simulations that we ran on Monday, a 269-269 tie came up in 152 model runs, or about 0.6 percent of the time.

Still, this probability has roughly doubled from a few weeks ago, when the chances had been hovering at about 0.3 percent instead.

I have no idea what the probability is now, but I'm sure Silver could run thousands of simulations and wow us with a very specific number. I'll just note that last night, using my intuition, it was the most likely outcome.

Here's what the 12th Amendment says about determining the winner:

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote...

Real Clear Politics Electoral College map has Romney ahead 206 to 201.

With 131 toss-up states. I don't remember seeing Romney on top in Electoral College votes before.

Michigan, Pennsylvania, and New Hampshire reclassified as "toss up" states...

... at Real Clear Politics.

"New Polls Raise Chance of Electoral College Tie."

Says Nate Silver, speculating about something that would require "a deterioration in his polls between now and Nov. 6 — or that the polls have overestimated his standing across the board." (Overestimated? Do you think?)

Mitt Romney would probably win such an election, because Republicans will probably control a majority of state delegations in the incoming House of Representatives.

"The white margin to watch: 61-39. That’s the rough break-even point."

"Obama likely needs more than 39 percent of whites to assure re-election. Romney likely needs at least 61 percent of whites to assure Obama’s defeat (or 60.5 in some scenerios). These are estimates based on an electorate that matches the diversity of 2008 or is slightly less white. It presumes the Electoral College outcome does not diverge from the winner of the popular vote (loose talk aside, it’s only happened four times in U.S. history)."

The "white margin to watch"... is that the way we talk now? I find that pretty unpleasant, and it's also odd to be talking with such specificity — 61-39! — while rejecting the powerfully specific mechanism that is the Electoral College. Once you tip to a plurality in a state, it doesn't matter how many white or nonwhite voters go this way or that (except in Maine and Nebraska). So polling that ignores the Electoral College is inherently inaccurate in a close election.

The campaigns are designed around winning the Electoral College. George Bush explained it well, when challenged about his 2000 win that lacked a popular vote majority. (Despite what it says at the link, that interview took place on Dec. 5, 2000.)

You know... had this been an election on who got the most popular votes I suspect we might have had a little different strategy. 

Typical Bush humor. Of course, he means he would have had a completely different strategy.

For example, I might have spent more time in my own home state of maximizing the vote here. One of the reasons why the Electoral College is in place, is it forces candidates like me to go and spend time in some of the smaller states that candidates might ignore. And so I-I-you know, I understand the results. But my whole strategy was based on securing enough electoral votes to become the president. 

As I wrote in a law review article on the Electoral College (“Electoral College Reform: Déjà Vu,” 95 Northwestern University Law Review 993 (2001)):

Who will not admit that George W. Bush could have stirred up another half million votes by campaigning hard in Texas, a state he knew he would win, and in southern California and upstate New York, states with large numbers of voters where he could not expect to achieve a plurality?

But there's no equivalent safeguard precluding a racial strategy. You can concentrate efforts on winning huge majorities of particular groups. There's something unpleasant about that, so there is something of a safeguard in the way Americans rebel against racializing politics. You can't go too far without losing the good opinion of people whose votes you need.

But you can go kind of far. Obama only needs 39% of the white vote. Supposedly. Ignoring the Electoral College, which does complicate matters, but I assume the Obama (and Romney) strategists are doing the appropriate calculations — for example, in Wisconsin, a swing state with a relatively low percentage of black and Hispanic voters. If winning Wisconsin is determinative, 39% is not the key number. But surely they know about the real, complicated game of racial politics in the United States.

"The Romney Campaign's 'Route to 270' Doesn't Get to 270."

The Atlantic's Molly Ball asserts.

So I did the math: If Romney flips those six states [Arizona, Colorado, Florida, Iowa, Nevada, Ohio, and Virginia] and no others, how many electoral votes would he end up with? Romney starts from a baseline of 179 electoral votes -- McCain actually won 173 electoral votes, but Census-based reapportionment has added electoral votes to red states and subtracted them from blue states. Add to that Colorado's 9 votes, Florida's 29 votes, Iowa's 6 votes, Nevada's 6 votes, Ohio's 18 votes and Virginia's 13 votes, and you get 260. 

So you need 10 more electoral votes? Hmmm.... can we think of a state that has 10 electoral votes? Let me think really hard, because for the last year and a half, I've just been so distracted by....

Wisconsin.

By the way, do we usually shift over to talking in Electoral College terms this early in the election season? It seems to me that June 7th is really early for ruminating over how the challenger to the incumbent gets to 270.

The interplay between the Wisconsin recall and the November elections.

Business Insider has some analysis of a subject that deserves a lot of attention:

"It’s possible the recall elections will rally Wisconsin Democrats, spurring them to keep up the fight by heading to the polls in November. However, the recall election will not be cheap....

Democrats outside the state have expressed concern about sinking money into a statewide election so soon before the presidential race. There is also a chance that adding another hot contest to the year’s election calendar will induce voter fatigue, leaving would-be voters unwilling to summon the energy to make their way back to the polls again in November. In a state as evenly divided as Wisconsin, voter turnout is critical....

In the background, Wisconsin is also considering a proposal that would change the way it allots its Electoral College votes from a winner-take-all model to a representative one based on congressional districts. Maine and Nebraska are the only states that currently determine their Electoral College votes this way.... [I]f the proposal did somehow pass, it could deprive Obama of the last few votes he needs to win a close race, even if he narrowly carries Wisconsin.

"Ban Marriage?" is the title given to a Bloggingheads clip -- with Jack Balkin and me -- chosen for the NYT website.

Here.

The clip is also teased on the NYT front page like this:



We're sandwiched between teasers Jay Leno...

... Mr. Leno shocked the television world ... by agreeing to stay at NBC to create a new version of his show, tentatively titled “The Jay Leno Show,” at 10 every weeknight starting next September, moving from late night to prime time.

... and the presidential electors:

In a quadrennial ritual that has been criticized by some as an outdated part of the American political system, 538 electors, chosen for their party loyalty, cast their votes on Monday.... Electors are not legally bound to vote for the candidate to whom they are pledged, but they generally do.

So it's a NYT sandwich: Bloggingheads... on moldy old constitutional bread and Lenoaf. Yum!

Sending his text message at 3 a.m. — the time Hillary made emblematic — Obama picks Biden.

Here's the NYT report. I didn't stay up all night waiting to see the long-withheld news. Did you? I woke up naturally, and Obama's VP pick wasn't my first thought, but it was my third or fourth thought, and I picked up the iPhone and checked — no, not for a text message! — I wouldn't hand over my number — I checked Safari to see the news.

So it's Biden.

1. That's what we expected.

2. Why the hell did he drag it out so long?

3. Someone will be very happy and not just because I lost a bet to him.

4. Respect for Delaware, my home state, despite its piddling supply of electoral votes, instead of pandering to some better endowed, showier state.

5. Biden's a good guy, experienced.

6. Another senator, not a governor, all these senators.

7. McCain should pick a governor, and now McCain can pick Romney, because his somewhat awkward facial expressions will be fully balanced by Biden's — it's a wash, smile-wise.

8. He picked the guy who called him "clean" and "articulate," so maybe that means he's not as thin-skinned as he's seemed.

9. The man known for his orating powers has picked a man who loves to talk but is somewhat out-of-control in his speech — perhaps he sees him as some kind of counterpart, for Obama has plenty of verbal glitches when he's speaking spontaneously.

10. That 3 a.m. text-time will needle hold-out Hillary lovers.

11. What do I really think of Biden? I should go back over my old posts tagged "Biden" and see what I've said over the years. But that will be the next post. [Done here.]

"How will Barack Obama get to 270?"

In depth, serious analysis of what really matters: the Electoral College. — from Democratic pollster Paul Maslin:

States that strongly favor Obama ("strongly" in the context of close states, that is): Minnesota, New Jersey, Oregon, Washington. That's 43 electoral votes. Add that to the safe blue 157 votes in 11 states and D.C. and Obama is at 200.

States that slightly favor Obama: Iowa, Michigan, Pennsylvania, Wisconsin. Another 55 votes. He's now at 255

States that strongly favor McCain: Florida, North Carolina. Their 42 electoral votes are probably going to the Republicans.

States that slightly favor McCain: Colorado, 9 votes; Missouri, 11 votes; and Virginia, 13 votes. Obama's chances are better here.

Pure toss-ups: Nevada, 5 votes; New Hampshire, 4 votes; New Mexico, 5 votes; and Ohio, 20 votes.

Clearly, and I'm being cautious, I think it's going to be a close race. If Obama wins the 255 votes in the states where he's favored, then to get to 270 he needs to choose from the following menu: 1) Win Ohio, which takes him to 275; 2) win in the West -- Nevada, New Mexico and Colorado, for 274; 3) win the three N's (Nevada, New Mexico, New Hampshire) for 269, plus one other state; or 4) win two of the three N's and either Colorado or Virginia.

Much more at the link. I'd like to see a second article by Maslin applying the same analysis with Hillary as the Democratic candidate.

Hillary Clinton's best argument to the superdelegates.

Look at these Electoral College maps.

Bayh's test: Which candidate won the states with the most electoral votes?

I think it's a good idea for Obama and Clinton proponents to propose different measures for the purposes of argument to the superdelegates, like Bayh's test. But that test needs to be refined to focus on states that might go Republican in the fall. New York, California, and Massachusetts don't matter. You may think the fairest test really is the pledged delegates, because that is what the candidates were competing for. Bayh's test retroactively treats state primaries and caucuses as though they were winner-take-all, but if they were the candidates would have fought differently. But it's not clear to me that the candidates relied on something that the superdelegates have to respect.

The superdelegates should be using their power to choose the best candidate for the party, and there are many arguments that could refute the assumption that the candidate that collected the most delegates — but failed to lock the nomination — will do best in November. Since November is crucial, the Electoral College should be taken into account, but not in the crude way Bayh suggests, since the superdelegates shouldn't worry about marginal preferences for Obama or Clinton in states that will almost certainly give its electoral votes to whichever candidate the party nominates. Thus, Clinton's popularity in Ohio and Pennsylvania (and, face it, Florida) matters, but her popularity in New York and California doesn't.

If you think the superdelegates should support the candidate with the most total votes, do you know whether it is Clinton or Obama?

It's only Obama if you exclude Florida and Michigan. Then, Obama is ahead by 598,266. Impressive! But if you throw Florida and Michigan back in, Clinton wins by 30,657. But that's not really fair. Clinton had name recognition that counted for too much at that early point, especially when they weren't supposed to be campaigning, and Obama wasn't even on the ballot in Michigan. Now, there's talk of redoing Florida and Michigan so those states can have delegates, but it's important to see that they will also have an effect on the popular vote totals that will influence the superdelegates.

Another issue raised in the above-linked article (by Blake Fleetwood) is that the popular vote total undervalues the states that had caucuses, since a smaller portion of voters turn out for a caucus. And Obama did so much better in caucuses than in primaries.

I counted the difference:

Using the numbers here, I found that Obama has won 290 delegates in caucuses, and Clinton has won 154. That's 65% for Obama and 35% for Clinton. In the primaries, by stark contrast, Obama has won 1072 delegates, and Clinton has won 1058. (Actually, 1058.5 — she won 1.5 delegates in the Americans Abroad primary.) That's 50% to 50%. You need to go to decimals to show the Obama percentage lead in the primaries: 50.3% to 49.7%.

But if you want to use total popular vote as a basis for argument to the superdelegates, what do you do with this information? You can't say with confidence that Obama really should have more total votes, because it seems to be that Obama supporters are overrepresented among the kind of people who go to caucuses. We can think of some characteristics that may be shared by caucus-goers and Obama-supporters — notably youth and political fervor. So who was "cheated" out of popular votes in the caucus states? Obama or Clinton?

In any event, it's hard to assign value to the popular vote, since the candidates were not playing — at least not early on — for the popular vote. They campaigned for delegates, so they built their strategies on winning a percentage of the votes within any given state. This cumulative popular vote does matter quite a bit more than it does in the Electoral College system in the fall, because these were not winner-take-all states. With the Electoral College, the popular vote is completely skewed, given the huge numbers of people who know their vote won't tip their state one way or another, making the decision whether to vote in California completely different from the decision whether to vote in Ohio.

And yet, the accumulated popular vote seems very important, both in electing the President in the fall and, certainly, in the Clinton-Obama match-up now that we're pitching arguments to the superdelegates. That gives the last few states, including Michigan and Florida if they horn their way back into the process, a whole new dimension of power.