This is the fourth essay in a five-part series.
This essay explains how lawmakers in swing states can contain local corruption in presidential elections: by changing how their states choose presidential electors.
This is the fourth in a five-part series on how to cleanse our presidential contests from the kind of irregularities we saw in 2020.
There is a long history of big-city Democratic Party machines corrupting American elections. When the political stars are aligned correctly, those machines can award the presidency to a candidate who really lost.
It is said that the classic script was written by Chicago Mayor Richard Daley in 1960. Most of Illinois voted for the Republican presidential candidate, Richard Nixon. One version of events says that Daley knew this was going to happen, so he allegedly held back Chicago’s vote totals until he saw how many votes the Democratic candidate, John F. Kennedy, needed to overcome Nixon’s statewide lead. Daley then released enough Democrat votes, real or fake, to swing all of Illinois’s electors to Kennedy.
Meanwhile, alleged corruption in South Texas (home of Kennedy’s running mate, Lyndon Johnson), secured all the Texas electors for Kennedy. Flipping Illinois and Texas proved enough to put the likely loser, Kennedy, in the White House.
This had enormous consequences. Kennedy proposed—and after Kennedy’s death Johnson pushed through—the massive “Great Society” programs that have proven such spectacular failures. These were the programs that rendered the federal government nearly omnipotent and now threaten to bankrupt the country.
Although Chicago is legendary for electoral corruption, the 2020 presidential election showed that Chicago is not alone: Dubious vote totals generated by big-city Democrat machines allegedly swung enough states to take the presidency away from Donald Trump and hand it to Joe Biden.
Why can the machines do this? They can because all but two states choose their presidential electors at large. Whatever candidate wins a bare plurality of the popular vote in the state takes all of that state’s electors.
For example: According to CNN, in 2020, Trump won 54 of Pennsylvania’s counties, mostly by large margins. Biden won only 13 counties, mostly by much narrower margins. However, Philadelphia County turned in an astonishing 81.4 percent for Biden, giving him all 20 of Pennsylvania’s presidential electors.
The Constitution doesn’t require that presidential electors be chosen statewide. Each state’s legislature decides that. The decision may be by law or simple resolution. A law generally requires the governor’s signature, but a resolution doesn’t.
The Supreme Court outlined this “plenary” legislative power over the choice of presidential electors in the famous case of McPherson v. Blacker (pdf)—probably the most important Electoral College decision ever issued. And while that case is more than a century old, it remains very good law: The Supreme Court re-affirmed this (pdf) last summer.
The court’s opinion in McPherson contains a lot of valuable guidance. But its specific ruling was that a state legislature may allow voters to choose electors by district. Maine and Nebraska do this now: Currently the people of Maine and Nebraska choose only two electors at large and elect the rest by congressional district.
Moreover, a state legislature doesn’t have to align presidential-elector districts with congressional districts. In the early republic, state legislatures sometimes drew them differently.
Why, therefore, do 48 states choose presidential electors at large? The usual reason is a belief that at-large election increases a state’s influence in the Electoral College. That’s fine for states such as Oklahoma, Idaho, or Hawaii. But it’s not fine for states with big-city machines able to smother the rest of the state’s voters.
To illustrate how district voting can de-fang corruption, let’s consider the 2020 election in the swing state of Georgia. In most of Georgia, the election was fair. But in Atlanta (and a few other places) the attested number of irregularities was appalling. Corrupt big-city ballots likely swamped other regions’ honest ballots, pulling all of Georgia’s 16 electoral votes away from Trump and toward Biden.
Suppose, however, the Georgia legislature had adopted the Maine–Nebraska electoral system. Biden would have won the two at-large electors and electors in a handful of congressional districts. But the rest of Georgia’s citizens would have awarded most of Georgia’s electors to Trump.
In the 2020 presidential election, six other swing states reportedly suffered from big-city vote inflation as well. They were Arizona, Michigan, Nevada, North Carolina, Pennsylvania, and Wisconsin.
In North Carolina, support for Trump was so strong that he overcame the irregularities and won the state. But the other six swing states reported Biden victories, generally by very narrow margins. Those margins were produced by big-city Democrat machines and university towns, and they delivered each state’s entire slate of presidential electors to Biden. If Trump had won any three of those states, he would have won the Electoral College. In a fully honest election, he may have taken all six.
Significantly, all of these swing states except Nevada have Republican legislatures. (This is another reason to suspect the Biden victories were fabricated.) Hopefully, their legislatures are motivated to correct the problem.
In Part 3 of this series, I explained that state legislatures should adopt election law reforms to address corruption. But this may not be sufficient. The Republican legislatures in Arizona, Georgia, Michigan, North Carolina, Pennsylvania, and Wisconsin should consider supplementing election law reform with a district method for choosing presidential electors.
District voting for presidential electors in those states would have the following effects:
- It would isolate corruption to particular electoral districts;
- It would reduce the incentives for corruption; and
- It would even the odds in the Electoral College.
We don’t yet have complete 2020 data on what presidential candidate won each congressional district. But an analysis based on 2016 data suggests that adopting a congressional district system in these swing states would have resulted in a 2020 Trump victory with about 282 electoral votes—12 more than needed.
In fact, Trump’s 2020 total might well have been more. If people know corruption can’t sway an election for them, they’re less likely to engage in it. That’s why in 2020 we didn’t witness serious irregularities in states such as California or Texas, where the results were known beforehand. Vote inflation and other irregularities occurred only in states where they made a difference.
For the same reason, districting in those six states also would have changed the popular vote totals. Reportedly, Biden edged Trump by around 7 million popular votes nationwide. But remove big-city machine vote inflation, and Trump may have won the popular as well as the electoral tally.
Proposal: The Republican-majority legislatures in Arizona, Georgia, Michigan, North Carolina, Pennsylvania, and Wisconsin should consider permitting their citizens to vote for presidential electors by district. The simplest solution is the congressional district approach of Maine and Nebraska. But perhaps an even better approach is to draw boundaries so as to isolate corruption in as few districts as possible, while preserving the “one person/one vote” rule mandated by the courts.
Next time: The fourth proposal: A convention of the states to propose corrective constitutional amendments.
Robert G. Natelson, a retired constitutional law professor, is a senior fellow in constitutional jurisprudence at the Independence Institute in Denver. He is the author of “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2014).
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.