Pennsylvania proposes allocating electoral votes by Congressional distrct

[minionofmidas]

Given the coming GOP gerrymander in PA, they could lose the state, and still get three quarters of the electoral votes.

Frankly if I were on SCOTUS, I would rule such schemes unconstitutional. Take about disenfranchisement due to partisan mouses moving across a computer screen. No, just no.

They'd be more likely to rule partisan gerrymandering unconstitutional (with such a fishy definition that it could still be done in practice - just not the really disgusting-to-look-at specimens.) And even that's a stretch.

[minionofmidas]

Splitting EV's by CD is a good idea only when the Congressional map isn't gerrymandered to he'll.

And when it's mandated federally.

Sorry the State Legislatures are constitutionally responsible for selecting Electors (article II, section 1), there can never be a "federal mandate" to allocate Electoral Votes

But there can be for Congressional maps not being gerrymandered to hell: Article I, Section 4.

[minionofmidas]

The fact that minority voters are packed into overwhelmingly Democratic districts i think would make for a successful equal protection challenge.

Such a challenge would likely require an actual incidence, not a hypothetical, and in any case if Pennsylvania's electoral votes are disqualified in a close election the GOP will win anyway in the House of Representatives.

Nope. If electors are disqualified and not replaced, that changes the number of votes needed. Ie, it doesn't throw the election into the House.

[minionofmidas]

The fact that minority voters are packed into overwhelmingly Democratic districts i think would make for a successful equal protection challenge.

Such a challenge would likely require an actual incidence, not a hypothetical, and in any case if Pennsylvania's electoral votes are disqualified in a close election the GOP will win anyway in the House of Representatives.

Nope. If electors are disqualified and not replaced, that changes the number of votes needed. Ie, it doesn't throw the election into the House.

Hmph, I am going by this.

http://www.archives.gov/federal-register/electoral-college/faq.html

What happens if no presidential candidate gets 270 electoral votes?

If no candidate receives a majority of electoral votes, the House of Representatives elects the President from the 3 Presidential candidates who received the most electoral votes.



The text of the 12th amendment suggests a majority of electors appointed; in the event that Pennsylvania's electoral votes are not counted, they were of course still appointed.

Pennsylvania would (in the worst case) be deemed as not having appointed electors (by a constitutionally acceptable, valid process). The issue, after all, is with the method of selection of electors, not with the way they then cast their votes.
Otherwise, Republicans needn't have bothered to get the 2000 count stopped before a self-defined deadline - if no resolution in Florida before polling day had thrown the vote into the House rather than elected Al Gore, they could have very comfortably led that happen.
You notice that the answer you post above makes no mention to 270 votes, talking instead of "a majority".

[minionofmidas]

Proposing this right at the same time you need to propose new rigged-worse-than-ever congressional lines? Somehow doesn't strike me as a winner in the p.r. department.

[minionofmidas]

Just wondered, if they pass this first and the congressional districts after... it's a big huge black-and-red "strike me down and substitute whatever pleases you" mark on the CDs, but the splitting EVs principle might be safe from judicial review that way. Ie, the EVs are in the bag and the Congressional Delegation has just been shipped downriver. (Also, of course, the outcome wouldn't be too bad from a democracy in America pov.)

Probably not enough time left to make it work that way, I suppose?

[minionofmidas]

You have never heard me criticize NE or ME, and NE did benefit Obama. 

Only in a theoretical sense, and for his ego and Democratic bragging rights. It is 99.9% impossible for Nebraska's splitting its EV to be a deciding factor in a modern presidential election. (I suppose there is a highly unlikely, bizarre scenario where the race is close AND NE-2 is close.) It is quite conceivable that Pennsylvania doing the splitting would be a factor.

Well maybe a bunch of "f****ts" and persons of color and metrosexuals and the Godless, and all of Buffet's liberal friends will move to Omaha soon. Did you ever think of that? 

You have some inside information on Sam Spade's next career phase? Please illucidate.

[minionofmidas]

I see no constitutional issue with allocating electoral votes by Congressional district as such - provided that a scenario where someone not receiving the most votes cast in the state nonetheless receives the majority of its Electoral Votes is outlandishly unlikely (it's actually impossible in Nebraska as well as in Maine, given the two statewide winners' EVs.) You could even, theoretically, have electors elected in separate single-member districts existing only for that purpose. (IIRC some state did that for a few years before the civil war - Maryland?)
There clearly are constitutional issues with gerrymandering given, and although the court has always skirted well away from deeming "political" gerrymandering unconstitutional, it's pretty clear that your swing vote there Mr Kennedy is very uneasy about it.
Using heavily gerrymandered districts to elect electors? They'll find a way. I don't know what logic they'll use - there are several possible approaches, none of which a mythical genuine Originalist would sign on to - and what avenues for EV splitting they will leave open, but I'm as confident as Torie that they will strike it.

[minionofmidas]

If the electoral votes were allocated directly according to the proportion of the popular vote in the state i think maybe it could pass constitutional muster. The high probability of allowing someone who did not win the state to take the majority of the electoral votes I believe violates the one person one vote principle.

The Constitution accepts the fact that the winner of the electoral college might not have won the popular vote. Clearly, OMOV isn't an issue among the states. Why it should be an issue within a state?

Because there isn't an explicite exception for it as for the other issues.

That was too easy.

[minionofmidas]

Also, since Pennsylvania is not a voting rights state, the Voting Rights Act would not apply.

facepalm

[minionofmidas]

Also, since Pennsylvania is not a voting rights state, the Voting Rights Act would not apply.

facepalm

Sorry, it applies, at least to pre clearance, only to some specific states and some municipalities.

(...)

I'm afraid that "Voting Rights Act" is one of those terms that people toss around without understanding.

Your post being a textbook example. The VRA applies everywhere. The preclearance requirement (which is a reversal of burden of proof) applies only to specific states.

[minionofmidas]

But it does not deal with gerrymandering, so called.  What it prohibits is some type of "test" for voters and the requirement for per-approval of changes in some states, but not Pennsylvania.

It prohibits racially discriminative election procedures. Congressional district maps are changes to election procedures. That's why the VRA deals with gerrymandering despite not saying anything about the matter. Which is why all the details about what it may or may not prohibit are based on case law rather than the letter of the law... and why it is impossible to say what, exactly, is banned by it and what isn't.
The same is of course true of changes to electoral vote allocation rules. Though I indeed can't see a court striking the law on those grounds. (They might if a state was about 51% Black, and the White Party just barely, for once in a lifetime, won full legislative control before a presidential election but didn't expect to be able to carry the state at the next presidential election, and thus enacted such a proposal. But then such a state would be a preclearance state anyways.)