Three Strategies to Block the Gerrymandering of the Electoral College

2. ENGAGE IN THE DEBATE AND OFFER A POPULAR-VOTE ALTERNATIVE

Priebus and his allies will claim that assigning electoral votes via gerrymandered congressional districts gives more Americans a voice in the process -- even though that "voice" could allow a minority to claim a state and the presidency.

The right response is to highlight the anti-democratic character of the Electoral College and to push for a national popular vote. This will require a constitutional amendment. That takes work. But the process is in play. States across the country have endorsed plans to respect the popular vote that are advanced by FairVote: The Center for Voting and Democracy.

"The very fact that a scenario [in which a rigged Electoral College allows a popular-vote loser to become president] is even legally possible should give us all pause," argues FairVote's Rob Richie. "Election of the president should be a fair process where all American voters should have an equal ability to hold their president accountable. It's time for the nation to embrace one-person, one-vote elections and the 'fair fight' represented by a national popular vote. Let's forever dismiss the potential of such electoral hooliganism and finally do what the overwhelming majorities of Americans have consistently preferred: make every vote equal with a national popular vote for president."

Understanding, talking about and promoting the National Popular Vote campaign is an essential response to every proposal to rig the Electoral College. It pulls the debate out of the weeds of partisanship and appeals to a sense of fairness in Democrats, independents and responsible Republicans.

3. MAKE GERRYMANDERING AN ISSUE

The assignment of electoral votes based on congressional district lines is not unheard of. Two smaller states -- Nebraska and Maine -- have done it for years. But this approach with gerrymandering schemes that draw district lines to favor one party has the potential to dismantle democracy at the national level.

The courts have criticized gerrymandering, and even suggested that there may be instances where it is unconstitutional. But they have been shamefully lax in their approach to the issue -- at least in part out of deference to the authority extended to individual states when it comes to drawing district lines. But when gerrymandering threatens the integrity of national elections and the governing of the country, this opens a new avenue for challenging what remains the most common tool for rigging elections.

It is time for state attorneys general who have track records of supporting democracy initiatives, such as New York's Eric Schneiderman, and state elections officials, such as Minnesota's Mark Ritchie, to start looking at legal strategies to challenging the Priebus plan in particular and gerrymandering as it influences national elections. This really is an assault on the one-person, one-vote premise of the American experiment. And retired Supreme Court Justice John Paul Stevens, among others, is advocating for a renewed push on behalf of fair elections.

"[It] goes back to the fundamental equal protection principle that government has the duty to be impartial. When it's engaged in districting it should be impartial," Stevens explained in a recent interview. "Nowadays, the political parties acknowledge that they are deliberately trying to gerrymander the districts in a way that will help the majority."

This, argues Stevens, is "outrageously unconstitutional in my judgment. The government cannot gerrymander for the purpose of helping the majority party; the government should be redistricting for the purpose of creating appropriate legislative districts. And the government ought to start with the notion that districts should be compact and contiguous as statutes used to require."

Stevens says the courts, which often intervene on voting rights cases involving minority representation, and in cases where states with divided government cannot settle on new district lines, should engage with the purpose of countering gerrymandering.

"If the Court followed neutral principles in whatever rules they adopted, the rules would apply equally to the Republicans and Democrats," says the retired Justice, a key player on voting and democracy issues during his 35-year tenure on the High Court. "I think that line of cases would generate a body of law such as the one-person, one-vote cases that would be administered in a neutral way. This is one of my major disappointments in my entire career: that I was so totally unsuccessful in persuading the Court on something so obviously correct. Indeed, I think that the Court's failure to act in this area is one of the things that has contributed to the much greater partisanship in legislative bodies..."

Justice Stevens is right. That partisanship has moved from gerrymandering the state lines and US House lines to gerrymandering the presidential vote. The moment is ripe for a constitutional intervention.

Read John Nichols's primer on the GOP's vote-rigging shenanigans, "GOP Version2013."