Donald Trump was the clear Electoral College winner in the 2016 election, despite losing the popular vote by a wide margin to Hillary Clinton. Anthony J. McGann, Charles Anthony Smith, Michael Latner and Alex Keena write that, unless the Supreme Court stops congressional gerrymandering, President Trump can guarantee re-election in 2020 – even if he loses by 6 percent

Keena, Alex

Latner, Michael

McGann, Anthony J.

Smith, Charles Anthony

LSE Research Online

2/8/2017Gerrymandering the Presidency: Why Trump could lose thepopular vote in 2020 by 6 percent and still win a second term.blogs.lse.ac.uk/usappblog/2017/02/08/gerrymandering-the-presidency-why-trump-could-lose-the-popular-vote-in-2020-by-6-percent-and-still-win-a-second-term/Donald Trump was the clear Electoral College winner in the 2016 election, despite losing thepopular vote by a wide margin to Hillary Clinton. Anthony J. McGann, Charles Anthony Smith,Michael Latner and Alex Keena write that, unless the Supreme Court stops congressionalgerrymandering, President Trump can guarantee re-election in 2020 – even if he loses by 6percent.When the US Supreme Court takes up the issue of partisan gerrymandering this year, they willdecide not only the fate of popular control in the House of Representatives and many statelegislatures, but quite possibly the Presidency as well. If four Republican controlled stategovernments (Pennsylvania, Michigan, Wisconsin and Florida) change the way they allocateElectoral College votes, President Trump could be re-elected in 2020, even if he loses the popularvote by 6 percentage points. All the states need do is to allocate Electoral College votes bycongressional district (like Nebraska and Maine), instead of giving all of the state’s electors to thestatewide winner.Of course, this strategy only works to the benefit of the Republicans because the congressionaldistricts in these states are heavily gerrymandered. As we argue in our book Gerrymandering inAmerica, the congressional districts in many states are drawn to advantage the Republican Party.For example, in Pennsylvania in 2012 the Republicans took 13 out of 18 House districts eventhough the Democrats received more votes. If this partisan gerrymandering were outlawed, thenallocating Electoral College votes by congressional district in the four states would actuallydisadvantage the Republican candidate for President.However, if the Supreme Court continues to allow partisan gerrymandering – as it has since itsdecision Vieth v. Jubelirer in 2004 – then the plan is highly effective and there is nothing that canstop the four states adopting it. Allocating Electors by congressional district is clearly legal –Nebraska and Maine already do it this way. Furthermore, the Republicans control the statelegislature and the governor’s mansion in all four states.How allocating Electors by congressional districts could benefit the RepublicancandidateSurprisingly, the strategy that is most effective for the Republicans is to change how Presidential Electors areallocated in certain states that voted for Trump in 2016.Of course, the Republicans would get an advantage by allocating Electors more proportionally in states that Clintonwon. The problem is that this would require the support of Democrats. For example, Republican legislators inVirginia and Minnesota have already proposed such measures, and Stephen Wolf describes this as an attempt to“gerrymander the electoral college”. The problem is that both these states have Democratic governors, who wouldsurely veto such proposals. Similarly Harry Enten at fivethirtyeight.com shows that if all states allocated Electors byCongressional districts, the Republicans could win the Presidency despite a 5 percent popular vote deficit. Again theproblem is that this would require Democratic controlled states to agree to such a system.However, in Pennsylvania, Wisconsin, Michigan and Florida, Republicans control both the state legislature and the1/5governorship. They can change how Presidential Electors are allocated in these states.But how would making changes in states that already voted for Trump further benefit him? In 2016 allPennsylvania’s 20 Electors went to Trump. If Pennsylvania’s allocated its Electors by Congressional districts, Trumpwould only have received 14 of them. However, a swing of less than 1 percent would have given all 20 PennsylvaniaElectors to Clinton. By going to allocation by Congressional district, the Republicans can ensure they receive most ofPennsylvania’s Electors, even if they get fewer votes than the Democrats. This amounts to taking out insuranceagainst a swing to the Democrats.We can consider the effect of changing the allocation of Presidential Electors in the four states (Pennsylvania,Michigan, Wisconsin and Florida) compared to the current system. We do this using the data for the presidentialvote by congressional district compiled by Stephen Wolf at Daily Kos, and assume that any vote swing is uniformacross the districts.As you can see in Figure 1 below, in 2016 Clinton received 51.1 percent of the two-party vote and was allocated 232Electors. However, a very small swing would have changed all that – if she had won 51.6 percent of the vote, shewould have reached the 270 Electors required to become President.Figure 1 – Democratic Presidential Electors if six states (ME, NE, PA, MI, WI, FL) allocated electors bycongressional districtThings would be very different if the four states allocated Electors by Congressional district. Clinton would havereceived 258 Electors for the 51.1 percent of the vote she won. However, she would need to reach 53.1 percent ofthe popular vote to reach the 270 Electoral College votes needed to win the Presidency. That is, she could have wonthe vote by 6 percent and still not been elected President.This would not be possible if Congressional districts were not gerrymandered. We can show what would happen ifthe four states changed how they allocated their Presidential Electors, but are not allowed to district in a wayadvantages one party over the other. As Figure 2 illustrates, we find that if the Democrats win 51.3 percent of the2/5vote, they receive the 270 Electoral College votes required to win the Presidency. Without gerrymandered districts,changing how Electors are allocated in the four states actually hurts the Republicans.Figure 2 – Democratic Presidential Electors if six states (ME, NE, PA, MI, WI, FL) allocated electors bycongressional district, but Congressional gerrymandering is not allowedWhen we consider an individual state, we can see why allocating Electors by Congressional districts is soadvantageous to the Republicans. Pennsylvania has four districts that are overwhelmingly Democratic, which soaksup much of the Democratic vote and allows the Republicans to win nearly all the remaining districts. In 2016 Trumpwon the state, with Clinton receiving 49.6 percent of the two-party vote. As Figure 2 shows, if Electors were allocatedby Congressional district, this would have given the Republicans 14 out of the 20 Pennsylvania Electors. A smallswing to the Republicans would have given them 16 out of 20. However, even if Clinton had won 53 percent of thevote, the Republicans would still have got 11 out 20 electors. Indeed even if Clinton had won by 19 points, she wouldstill only have got 12 electors out of 20.Figure 3 – Democratic Presidential electors from Pennsylvania, if electors allocated by congressionaldistrict3/5The Choice facing the Supreme CourtThis is why the position the Supreme Court takes on partisan gerrymandering is so important. If the Court continuesto allow partisan gerrymandering, then President Trump could be re-elected in 2020, even if he loses the popularvote by 6 percent. All it takes is for four Republican controlled states – Pennsylvania, Wisconsin, Michigan andFlorida – to allocate Presidential Electors by congressional district, as Maine and Nebraska do now.If, however, the Court decides that partisan gerrymandering is unconstitutional, this plan doesn’t help theRepublicans at all. It only works because the congressional districts in the four states have been drawn to stronglyadvantage the Republicans.The Supreme Court is likely to consider the appeal of Whitford v. Gill later this year. A federal court has decided thatthe districts for the Wisconsin State Legislature were an unconstitutional partisan gerrymander.However, since its decision in Vieth v. Jubelirer (2004), the Supreme Court has found that the courts should notintervene in partisan gerrymandering cases, arguing that there does not exist a legal standard for judging them. Thisjudgment set the stage for the current gerrymandering of the House of Representatives. In our book, we show thatpartisan bias tripled in the redistricting cycle following the Vieth judgment. State governments did not have to fearjudicial reprimand, so they were free to push partisan gerrymandering to the limit. As a result, we argue that theRepublicans will retain control of the House until at least 2022.If the Supreme Court takes the same line it did in Vieth v. Jubelirer and overturns the Federal Court’s decision inWhitford v. Gill, then not only will the partisan gerrymandering of Congress continue, but there is nothing to stop thisgerrymandering from determining control of the Presidency as well. This is what is at stake when we considerPresident Trump’s nominee to the Supreme Court.This article is based on the authors’ new book, Gerrymandering in America (Cambridge, 2016). Featured image credit: Truthout.org (Flickr, CC-BY-NC-SA-2.0) 4/5Please read our comments policy before commenting.           Note:  This article gives the views of the author, and not the position of USAPP – American Politics and Policy, northe London School of Economics.Shortened URL for this post: http://bit.ly/2kN9LUG _________________________________About the authors Anthony J.McGann – University of StrathclydeAnthony McGann is a Professor at the School of Government and Public Policy in at the Universityof Strathclyde.  He is currently affiliated with the Institute for Mathematical Behavioral Sciences andthe Center for the Study of Democracy at the University of California, Irvine.  From 2008-2009 hewas the co-director of the University of Essex Summer School in Social Science Data Analysis andCollection.Charles Anthony Smith – University of California, IrvineCharles Anthony Smith is an Associate Professor of Political Science at UC Irvine. His research isgrounded in the American judiciary and focuses on how institutions and the strategic interaction ofpolitical actors relate to the contestation over rights. He is the author of The Rise and Fall of WarCrimes Trials from Charles I to Bush II (Cambridge University Press 2012) and the recipient of the2011 Bailey Award for the best paper on gay and lesbian politics for the paper “Gay Rights andLegislative Wrongs: Representation of Gays and Lesbians,” which he coauthored with Benjamin G.Bishin.Michael Latner – California Polytechnic State UniversityMichael Latner is an Associate Professor of Political Science and Director of the Masters in PublicPolicy Program at California Polytechnic State University. His teaching and research interestsinclude political participation, representation, and civic technology. Alex Keena– University of California, IrvineAlex Keena is a PhD student at the School of Social Science at the University of California, Irvine.CC BY-NC 3.0 2015 LSE USAPP5/5

Gerrymandering the Presidency: Why Trump could lose the popular vote in 2020 by 6 percent and still win a second term.

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