-By Lyle Denniston

January 29, 2013- Can anyone sue to stop an effort to change how electoral votes are allocated in swing states? Lyle Denniston examines the constitutional arguments about a contentious issue.

The statement at issue:

“We have been documenting…what appears to be a coordinated effort by Republicans in a number of key states to change the rules for electing a president. To change the rules so essentially Democrats running for president cannot win….Virginia Republicans are using the same maps they have gerrymandered for a permanent Republican advantage at the state level to also distribute Virginia’s Electoral College votes when it comes to voting for president….The action in Virginia is the first of its kind in the nation. What we have been covering is Republicans making noises about doing this across the country wherever they can…not just in Virginia, but in Wisconsin and Michigan and Ohio and Pennsylvania.”

– Rachel Maddow, a liberal broadcast personality, on her MSNBC cable network broadcast on January 23.

We checked the Constitution, and…

Forty-eight states (all but Maine and Nebraska) for years have been using a system in presidential elections under which the winner of their statewide popular votes gets all of their allotted votes in the Electoral College system. It is the closest thing to a direct popular vote method of choosing presidents, without getting rid of the Electoral College altogether. But, under the Constitution, it seems pretty clear that the states don’t have to do it that way, or so the Supreme Court has said.

What MSNBC’s Rachel Maddow has come across is a budding effort by Republican-controlled legislatures in a number of states that often figure as “battleground states” in the presidential campaign, to switch from winner-take-all to winner-by-congressional-district in picking presidential electors. That’s the method Maine and Nebraska now use.

What difference would it make?

Maddow makes this point: “If the system Virginia Republicans are pushing now had been in place in 2012, Barack Obama would still have received 150,000 more votes than Mitt Romney in 2012 in Virginia, but the Electoral College vote from Virginia would have been four votes for Barack Obama and nine votes for Mitt Romney.”



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