What Is A Constitution?

Pennsylvania Republicans, who control both Houses of the state legislature and the governorship, have a "bold Democrat-screwing electoral plan" to stop allocating their state's electoral votes on a winner-take-all basis. Instead, they would allocate eighteen of twenty on the basis of individual Congressional district-level results, and just two for the overall winner of the state. Throw in some aggressive gerrymandering, and Barack Obama could win Pennsylvania fairly handily and still have Rick Perry taking 12 of its 20 EV's. There are other Democratic-leaning states where Republicans are in a position to pull this same stunt if they want to. Add it all up and it could be a genuine though modest impediment to Obama's re-election efforts.

But let's go a step further. After all, the power of state legislatures to award their electoral votes is more or less unlimited (until they decide to hold an election to award the votes, in which case under Bush v. Gore's least controversial holding they are bound by the Equal Protection Clause). States with Republican legislatures could decide to award all of their votes to the Republican and just do away with the pesky election-having business. And, hey! Republicans control state legislatures in states with over 270 electoral votes. So those Republican state legislators could, if they wanted to, just declare victory in the Presidential election right now.

Or could they, I wonder? Suppose they tried this stunt. Would the result be that Rick Perry, after winning the Republican primaries next spring, just coasted to victory secure in the knowledge that, hey, he'd already won? I don't really think so. Most of the unwritten rules that Republicans have decided to just start ignoring over the past few decades are at a sub-constitutional level: you don't filibuster everything just because you can, you don't take the debt ceiling vote hostage just because you can, etc. But while most of our constitution is written, in a sense one of the most important provisions of it is just a UK-style tradition: holding a more-or-less direct election of our President. It's a tradition that only really started after the Civil War, prior to which South Carolina had never held an election for its electors, but since that time no state has ever allocated its EVs without holding an election whose result was binding. As a result we have a system in which we get to vote for our President; indeed, I think most people would mention this as one of the most prominent features of the American system of government. And it's an entirely unwritten rule, at the federal level at least.

So what if Republicans decided to defect from this tradition? I think there's a very real chance that on some level people would conclude that they didn't have the right or the power to do this. Who, in all honesty, would treat Rick Perry as the legitimate President if that was how he took office? Yes, it followed the written constitutional procedures, but it would violate all our notions of how this country has been run for a century and a half. And it's not like people elected these Republican legislators on a platform of "stop holding Presidential elections." I doubt that the EV-splitting scheme is quite radical enough to trigger this public withholding of legitimacy, but I'm pretty sure that if the Republicans start trying to just win the election by default, they won't get away with it.