The statements at issue:

“[The court] took the case and decided it at a time when it was still a big election issue. Maybe the court should have said, ‘We’re not going to take it, goodbye.’ … Obviously the court did reach a decision and thought it had to reach a decision. It turned out that the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”

– Retired Justice Sandra Day O’Connor, in remarks April 26 to the editorial board of the The Chicago Tribune, as reported in an article that day by Tribune writer Dahleen Glanton.

“We do know that she sided with the majority in the actual decision, which stopped the recounting in Florida and gave a one-vote majority in the Electoral College to the man who lost the national popular vote.  The ruling was a huge stain on the court’s reputation because it appeared to be—may well have been—blatantly partisan.”

– Andrew Rosenthal, editorial page editor of  The New York Times, commenting on Justice O’Connor’s statement, in an online column, “Taking Note,” on April 29.

We checked the Constitution, and…

Because the First Amendment provides a wide berth for free speech, especially about the way the government works, pundits—and even former judges—are entitled to rewrite history if they have a mind to do that. Both Justice O’Connor and the Times’ Andrew Rosenthal have done some of that in their comments about the Supreme Court’s decision in 2000 in Bush v. Gore, putting a constitutional end to that year’s presidential election.

Recall the factual situation on the morning after the November election: Democrat Al Gore stood to receive 267 electoral votes and George W. Bush, 246, with the 25 electoral votes in Florida undecided. To win, one candidate had to get at least 270 electoral votes. If Gore won Florida, he would have 292; if Bush won that state, he would have 271—one more than enough.

Gore had 48.4 percent of the popular vote nationwide, and Bush 47.9 percent (that total doesn’t add to 100 percent because there were four minor candidates). The uncertainty over who had won Florida’s popular vote (and thus all 25 of its electoral votes, under the winner-take-all formula) lingered for 36 days, until the Supreme Court issued its decision on the night of December 12, 2000.

When the Supreme Court ruled that further recounts of the vote could not proceed, Bush was ahead in the Florida popular vote, and when the official canvass was completed, Bush had 537 more votes than Gore—out of nearly 6 million total Florida votes between them.

Although Bush v. Gore will be debated for a long time to come, the reality is that election outcomes are decided under rules of law that govern vote-counting, and those rules routinely come into play when election-night counts turn out to be very close. No one can argue persuasively that the 2000 election was going to be settled by anything other than a legal decision. If it wasn’t to be made by the Supreme Court, it would be made by lower courts. (The only chance for a political, not a legal decision, would have been if the electoral vote count had ended in a tie and the House of Representatives would settle it; given the numbers with Florida’s 25 in play, there was no chance of a tie.)

If, as Justice O’Connor has suggested, the Supreme Court had said that it was not going to take the case, at that point rulings by the Florida Supreme Court or by a federal appeals court would have settled it, probably by allowing further recounting in Florida. It is impossible to imagine that America would have been content to let a lower court resolve what had become, for all intents and purposes, a constitutional crisis with time running out. In that circumstance, that is why there is a Supreme Court to settle constitutional meaning.

It is not clear what Justice O’Connor meant by saying that the court may have “added to the problem,” but that is a political assessment, not a judicial one. The court does get into political trouble when it makes controversial decisions, particularly on an issue as momentous as how to decide the legalities of a presidential election contest. The court’s decision did bring an end to the crisis, and however controversial that was then or may be in retrospect, Americans quickly learned to live with it.

And, whatever one may make of the presidency of George W. Bush, that history was not caused by the Supreme Court.

Many critics, including most recently Rosenthal, have suggested that Bush v. Gore stained the court’s reputation because it might have been ”blatantly partisan.” The claim of a stain is much exaggerated; the kinds of decisions that actually do sully the court’s good name are decisions that preserved slavery, saved racially segregated schools and other public facilities, and allowed imprisonment of citizens during wartime on no basis other than rampant bias and fear. Bush v. Gore does not come close to belonging in that group.

And there is no proof whatsoever that the justices who voted in the majority in the 2000 decision did so with the specific intent of assuring that a Republican would win. If they got it wrong, they got it wrong for legal reasons.

The constitutional and legal issues were fully aired, every step of the way, based on legal documents that were on full public display and on public hearings that were entirely open and were focused on the law. An accusation that a judge votes his or her political preferences is a very serious allegation, and for a federal judge might be, if proven, a valid basis for impeachment. Such a claim should not be offered as loose conjecture in an attempt to revise history.

If one is looking seriously for a real scapegoat in 2000, perhaps the constitutional culprit is the Electoral College itself.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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Mark Sanford

In case you missed it, Sanford, South Carolina’s former governor, is running against the sister of comedian Stephen Colbert to fill a vacant House seat. Sanford left office after acknowledging an extramarital affair while he was governor, which included a trip while in office to Argentina to see his mistress.

Colbert Busch is a university administrator and first-time candidate running as a Democrat, running against Sanford in a heavily Republican area.  The contest is happening because former representative Tim Scott moved to the Senate, to replace Tea Party icon Jim DeMint. Article 1, Section 2, of the Constitution specifies that special elections are held to fill vacant House seats.

The election race has already had some odd moments—here’s how it compares, so far, to other unusual elections.

1. Mark Sanford takes on a life-sized Pelosi cutout

Sanford’s unconventional strategy includes hitting the campaign trail with a huge cutout figure of House minority leader Nancy Pelosi and debating the paper Pelosi at campaign stops. Then, at the one debate between Sanford and Colbert Busch, the former governor pretended to not hear a reference by Colbert Busch to his extramarital affair—drawing catcalls from the audience. In another odd twist, Hustler publisher Larry Flynt has endorsed Sanford in the race.

2. The Terminator becomes governor

The gold standard of odd political races is the 2003 California governor’s recall election that saw actor Arnold Schwarzenegger win office. Schwarzenegger announced his candidacy on The Tonight Show. After litigation, drama, and more drama, voters recalled Gray Davis and picked Schwarzenegger from a list that included the then-Lieutenant Governor Cruz Bustamante, independent Arianna Huffington (who dropped from the race after a debate), Hustler publisher Larry Flynt, former child star Gary Coleman, porn star Mary Carey, and the comedian Gallagher.

3. Ulysses S. Grant defeats a dead candidate for president

President Grant faced a major problem as he ran for re-election in 1872: a major split within his own political party. The breakaway Liberal Republicans nominated a celebrity in his own day, Horace Greeley, to oppose Grant. The Democrats decided to also nominate Greeley.

But the campaign was a disaster; Greeley was a poor public speaker and his running mate, Benjamin Gratz Brown, may have had a public drinking problem. Grant won the election easily, and then Greeley died in a sanitarium before the Electoral College counted the votes.

4. A dead candidate wins a U.S. Senate seat

Missouri Governor Mel Carnahan was engaged in a tight campaign for the U.S. Senate against John Ashcroft, the former U.S. attorney general in 2000. Three weeks before the election, Carnahan died in a plane crash a day before a scheduled debate against Ashcroft.

The state’s law would not allow for Carnahan’s name to be removed from the ballot, and the campaign continued on. Voters selected Carnahan over Ashcroft, and Carnahan’s wife was named by the state’s acting governor to serve until a special election could be held.

5. A pro wrestler becomes governor, too

Jesse “The Body” Ventura was a former professional wrestler who also served as the mayor of Brooklyn Park, a city of 70,000 people near Minneapolis. Ventura shook up the 1998 Minnesota governor’s race by running as a candidate for the Reform Party (which was founded in 1995 by Ross Perot).

Ventura was seen as a novelty candidate, but he used a small budget and several high-profile appearances to boost his chances against frontrunners Norm Coleman and Hubert Humphrey III. The Body had the last laugh as he passed Coleman and won a narrow victory.

6. Gopher wins a congressional seat

Actor Fred Grandy raised eyebrows when the Love Boat star decided to run for a House seat in Iowa in 1986, even though most people knew him from his role as “Gopher” on the ABC TV show.

Grandy embraced his TV past, saying, “If there were no Gopher, there would be no Fred Grandy for Congress.” In fact, Grandy had impressive political credentials in the Republican Party. He was a former speechwriter and a Harvard grad.

Grandy served four terms in Congress and today remains active in politics.

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7. Cat wins mayoral race in Alaska

It’s been more than 15 years since Mayor Stubbs won office in Talkeetna, Alaska.  The part-manx cat has been a model mayor since running as a kitten. The 900 residents of the tourist town have promoted Stubbs as a must-see attraction, and he greets visitors daily—if he isn’t on Facebook with his 29,000 followers.

8. The Rent Is Too Damn High Party steals the debate

The 2010 gubernatorial race in New York saw Andrew Cuomo win a high-profile election that will be remembered for a wide-open debate.

Jimmy McMillan, the candidate of the Rent Is Too Damn High Party, stole the debate with a series of comments that went viral on the Internet. Cuomo won the election easily, but McMillian came in fifth—surpassing the vote total for the Anti-Prohibition Party candidate Kristin M. Davis (the former Manhattan Madam in the Eliot Spitzer scandal).

9. Ross Perot implodes on the campaign trail

In the 1992 presidential race, independent candidate Ross Perot led public opinion polls heading into the summer, outpacing President George W. Bush and Bill Clinton. Then everything came apart for Perot in July.

First, Perot’s popularity numbers started to fall. After a key adviser quit, Perot stunned supporters by quitting the race, claiming he didn’t want to throw it into the House of Representatives. Then, Perot jumped back into the race in the fall, saying the real reason he quit was that political opponents were planning to ruin his daughter’s wedding. A shaky debate performance by vice presidential candidate James Stockdale added to his woes.

10. Wilbur Mills wins despite stripper incident

Mills was the powerful head of the House Committee on Ways and Means. In October 1974, about a month before his re-election race, police found Mills in a car without its lights on. He appeared to be intoxicated. Then, Fanne Foxe, a local stripper, jumped out of the car and into the Tidal Basin. The scandal made national headlines.

Mills was able to win his election, despite the incident, with 60 percent of the vote. But after another incident, where Mills appeared at a press conference held in Foxe’s dressing room at a burlesque hall, he resigned his chairmanship. After leaving Congress, Mills became an advocate for programs to treat alcoholism.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

Students around the country can tune in online for an episode of Constitution Hall Pass, from April 2012, called “The Story of Earth Day.” In this exciting episode, find out all about the history of the environmental movement in the United States, and the origins of the holiday we know as Earth Day. We’ll find out why protecting our environment is so important, and take a look at some easy ways you can make your life more green every day! Join us as we look at ways to create a healthier environment and check out the video below!

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Today we celebrate the anniversary of the 17th Amendment (ratified April 8, 1913). Here’s what you need to know:

WHAT IT DOES

The 17th Amendment allowed senators to be directly elected by the people rather than by state legislatures. It also changed the system for filling vacancies in the Senate.

WHY IT WAS ADDED

The idea of directly electing senators had been floating around since the Constitutional Convention. The lone supporter of this measure was delegate James Wilson, who reasoned that “no government could long subsist without the confidence of the people.” He also said it gave too much power to the state legislatures. About a century later, Populist Party leaders led the way for reform, arguing that the election by state legislatures led to corruption and gridlock.

WORD-FOR-WORD

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

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WHAT IT DOES

The 23rd Amendment made it possible for residents of the District of Columbia to vote in presidential elections.

WHY IT WAS ADDED

The District of Columbia was established as the nation’s capital in accordance with Article I, section 8 of the Constitution. But the Constitution did not account for the voting rights of the district’s residents. The 23rd Amendment guaranteed them the right to vote in presidential elections. However, they still do not have voting representation in Congress.

WORD-FOR-WORD

Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

William Seward.

For a brief time in the decade before the Civil War, the Democratic Party of Andrew Jackson and his descendants enjoyed a period of one-party rule.

The Democrats had battled the Whigs for power since 1836 and lost the presidency in 1848 to Zachary Taylor. But the Whig Party dramatically collapsed in the few short years after Taylor died in office in 1850.

By 1854, the battle between pro-slavery and anti-slavery forces ended the Whig party as a force in American politics. The Kansas-Nebraska Act was passed, allowing new territories and states to decide on their own if they would allow slavery. The act was a fatal blow to unity within the Whig Party.

There are at least three dates recognized for the birth of the Republican Party in 1854. The first is February 24, 1854, when a small group met in Ripon, Wisconsin, to discuss its opposition to the Kansas-Nebraska Act. The group called themselves Republicans in a reference to Thomas Jefferson’s Republican faction in the American republic’s early days.

The second meeting was larger, on March 20, 1854, in Ripon, to formally recognize and popularize the movement in Wisconsin. A third meeting in Jackson, Michigan, on June 6, 1854, was attended by about 10,000 people.

Horace Greeley, the newspaper publisher, had officially christened the group as Republicans in an editorial.

“We should not care much whether those thus united [against slavery] were designated ‘Whig,’ ‘Free Democrat’ or something else; though we think some simple name like ‘Republican’ would more fitly designate those who had united to restore the Union to its true mission of champion and promulgator of Liberty rather than propagandist of slavery,” he wrote.

The Republicans made quick inroads with their anti-slavery platform in the 1854 elections as a regional party, with its candidate becoming Michigan’s governor.

But the Republicans had rivals in other northern states popularly called the Know Nothings (or the Native American or American party). That rival party was loosely organized and campaigned on an anti-immigrant platform; it faded away after 1856, also divided over slavery.

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The Whig party also had a minimal presence in 1856. Former president and former Whig Millard Fillmore ran for president with the Know Nothing Party. But he finished third, and Democratic candidate James Buchanan became president.

In two short years, the Republicans had become a force in the North, and their 1856 candidate, John Fremont, won 114 electoral votes and finished second to Buchanan, despite the lack of any Republican presence in the South.

The Democrats’ popular vote total fell from 50 percent in 1852 to 45 percent in 1856.

Among the early leaders of the national Republican Party was William Seward, a former Whig and staunch enemy of slavery. Another former Whig, Abraham Lincoln, sought the party’s vice presidential nomination in 1856, but came in second at the party’s first convention in Philadelphia.

By 1858, Lincoln became a national figure after a series of debates with the architect of the Kansas-Nebraska Act, Senator Stephen Douglas. Lincoln lost the Senate race in Illinois to Douglas, but the debates made slavery and the Dred Scott decision a cause in the North.

In 1860, Lincoln gained an upset nomination over Seward at the Republican Convention and was able to win the presidency over a divided Democratic Party.

Lincoln’s win capped a startling six-year rise for the Republicans from obscurity to controlling the White House. And with the exception of a pair of terms served by a Democrat, Grover Cleveland, the Republicans controlled the White House from 1860 until 1912.

The Growth & Opportunity Project report was issued Monday, amid much publicity and internal criticism among the GOP, by a group of five veteran Republican operatives.

The term “tea party” was used once in the entire report, in a reference to Dick Armey, a former House majority leader.

Currently, several GOP senators with tea party connections, like Rand Paul and Ted Cruz, are playing high-profile roles in the latest legislative debates. But their viability as national candidates in 2016 could take a hit, some supporters fear, if the Republican party returns to an election system based in the Reagan and Bush eras.

In the 2012 election process, there were 20 primary debates, with the first debate in May 2011 and the final debate in February 2012. Two candidates without significant financial resources, Ron Paul and Rick Santorum, took part in every debate and used the national platforms as low-cost ways to reach a wide audience.

The RNC wants to cut the number of primary debates by 50 percent and shorten the primary season.

Related Link: Growth & Opportunity Project report

And then there are the caucuses–in particular, the Iowa caucus.

“We also recommend broadening the base of the Party and inviting as many voters as possible into the Republican Party by discouraging conventions and caucuses for the purpose of allocating delegates to the national convention. Our party needs to grow its membership, and primaries seem to be a more effective way to do so,” the report says.

The moves would effectively move the first debate much closer to the Iowa caucus, or primary, or whatever the event would be called.

The 2012 Iowa caucus was an important platform for Santorum and Paul, where they finished first and third in voting (Santorum just edged out Mitt Romney).

Next are the controversial proposed changes to the primary season.

The plan does allow states with traditionally early primaries to keep their spot in the pecking order, but the remaining primaries would be grouped together into regional clusters, like a series of Super Tuesdays.

The rationale, says the RNC, is to finish primary season in May and hold the Republican National Convention much earlier, and in the case of 2016, before the Summer Olympics start in August 2016.

Those conditions, critics say, greatly favor candidates with large amounts of campaign financing who can blitz the “Super Cluster” states with television ads and campaign appearances.

Another other red flag in the RNC plan is immigration.

“We must embrace and champion comprehensive immigration reform. If we do not, our Party’s appeal will continue to shrink to its core constituencies only. We also believe that comprehensive immigration reform is consistent with Republican economic policies that promote job growth and opportunity for all,” the report says.

The idea of immigration reform that offers a pathway to citizenship for currently illegal aliens is a lightning rod within the Republican party.

The report also says the Republican party needs to improve its standing in the gay community.

“There is a generational difference within the conservative movement about issues involving the treatment and the rights of gays—and for many younger voters, these issues are a gateway into whether the Party is a place they want to be,” the report says.

The report was also critical of Republicans serving in Congress and heaped praise on Republican governors.

“Republican governors are America’s reformers in chief. They continue to deliver on conservative promises of reducing the size of government while making people’s lives better,” the report said. “It is time for Republicans on the federal level to learn from successful Republicans on the state level.”

Of course, the report is a recommendation, and its goals would need to be approved by a full vote of the RNC at a national meeting.

But the initial reactions after the report’s release on Monday indicated that there wasn’t a consensus within the GOP.

The critics included commentators Rush Limbaugh and Michelle Malkin, and one adviser to Rand Paul, who told the Washington Post that the “move away from caucuses and conventions will be highly controversial for the Paul world, tea partiers and social conservatives.”

John Brabender, a Santorum adviser, told Politico that the primary changes would favor the candidates with the most fundraising support.

“I am troubled by the possibility of a condensed presidential primary process which undoubtedly gives an advantage to establishment backed candidates and the wealthiest candidates,” said Brabender.

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Don’t look now, but something’s watching you

Another bid for the White House, however, seems out of the question and would be problematic based on the past decisions of former losing presidential candidates.

Romney will be a featured speaker at the Conservative Political Action Conference in suburban Maryland. He joins a roster of Republicans including Marco Rubio, Sarah Palin, and Rand Paul.

The National Review first reported the story, which was confirmed by an American Conservative Union executive.

“The thousands gathered at CPAC this year are eager to hear from the former GOP presidential candidate at his first public appearance since the election,” says Al Cardenas, the ACU’s chairman. “We look forward to hearing Governor Romney’s comments on the current state of affairs in America and the world, and his perspective on the future of the conservative movement.”

What Romney’s intentions are were unclear as of Wednesday. One source told The Washington Post that the former candidate wanted to thank “supporters and friends.”

The event is at the Marriott Gaylord National Resort in National Harbor, Maryland, from March 14 to March 16. Romney rejoined Marriott’s board after the November 2012 presidential election.

Politico reported in January that Romney told a private audience he had no intentions of fading away from the political scene.

Its sources said Romney told supporters he would campaign for Republicans in this year’s gubernatorial elections, as well as the 2014 midterm elections and the 2016 presidential election. Romney also reportedly said he wanted to take part in a public dialogue about the economy and international issues.

The former candidate’s wife, Ann Romney, has said that her husband isn’t interested in another presidential run. Politico also said that Romney told the audience at the January event that he didn’t intend to run for president again.

But Romney hasn’t ruled out some kind of public role as a speaker supporting GOP causes.

Romney, 65, is seven months younger than Hillary Clinton.

But even if Romney had a change of heart and ran for president in 2016, the historical record of losing candidates winning the next political election is poor.

Romney lost a bitter race with President Obama in November, with Obama getting 332 electoral votes to Romney’s 206.

Thomas Jefferson, Andrew Jackson, William Henry Harrison, and Grover Cleveland did come back from a presidential campaign loss to win four years later. Cleveland’s win was in 1892; he was the last president to accomplish that feat in four years.

Richard Nixon also won the 1968 presidential race, after losing eight years earlier to John F. Kennedy. In fact, Nixon was the last defeated presidential candidate to make another major effort to win a presidential race.

Gerald Ford, Jimmy Carter, Walter Mondale, Michael Dukakis, George H.W. Bush, Bob Dole, Al Gore, and John McCain didn’t attempt to run for president again after their losing campaigns.

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GOP lawmakers in the swing states of Florida, Virginia, Ohio, Wisconsin, and Michigan were considering bills that would divide each state’s electoral votes by congressional district, rather than granting all of their votes to the statewide popular vote winner.

Only two states, Nebraska and Maine, use a vote-splitting system, where each district gets one electoral vote, for the candidate that wins within the district. An additional two votes are given to the presidential candidate who wins the statewide popular vote.

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In 2008, candidate Barack Obama was able to pick up an extra electoral vote in Nebraska because of the system. It wasn’t a factor in the 2012 election.

A recent analysis on The Huffington Post showed that if all 50 states had used the vote-splitting system, Mitt Romney would have won the 2012 election for president.

A second analysis from The New York Times’ Nate Silver showed Romney winning the 2012 election–by one electoral vote–if just the six swing states had changed their laws.

Critics say the system is flawed because it is based on the concept of gerrymandering—the redrawing of congressional districts to favor a party.

But in recent days, governors in the four states have come out against the plan, or had serious doubts about it.

Michigan Governor Rick Snyder told Politico on Tuesday that we wanted to wait until such a plan could be done in a bipartisan manner.

Republican leaders in Ohio told a Cleveland newspaper on Tuesday they wouldn’t support a vote-splitting plan. On Friday, Virginia’s governor said the plan wouldn’t be pursued in his state.

Top GOP leaders in Florida oppose the plan, and Wisconsin Governor Scott Walker is lukewarm at best.

“One of our advantages as a swing state is that candidates come here … that’s good for voters. If we change that, that would take that away and would largely make us irrelevant,” Walker said in a separate Politico interview.

The reality that Walker is talking about is what helped kill Pennsylvania’s vote-splitting plan a few years ago.

The concern in the Keystone State was that national political candidates, without the hope of a clean sweep of a winner-take-all state, wouldn’t spend money on television advertising.

Theoretically, if Pennsylvania had split its 20 electoral votes, the margin between Obama and Romney would have amounted to five or possibly six electoral votes—putting the state on par with smaller swing states like Iowa and Nevada.

So far, Pennsylvania lawmakers have drawn up House Bill 94, which calls for splitting the vote by congressional district.

Governor Tom Corbett has been fighting other political battles, and the controversy over vote splitting could end before he gets to comment on the bill. A similar proposal in 2011, which was backed by Corbett, was tabled late in the year.

Corbett and state Republicans also faced a considerable public backlash last year in a very public battle over voter ID laws, and Corbett is up for re-election in 2014.

Four GOP state reps in a seventh state, Washington, introduced an electoral change bill on Wednesday, but the measure is expected to go nowhere in a state with a strong Democrat presence.

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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.”

In an earliest broadcast on this same tactic, Maddow made the point that, if a switch to district-by-district Electoral College voting had been made for key “battleground states” in 2012, “President Obama would have finished the election nationwide with 5 million more votes than Mitt Romney, but Mitt Romney would have still won the Electoral College and won the presidency.”

Two constitutional points emerge immediately.   First, the Constitution does not guarantee that presidents will be chosen by popular vote; the Electoral College is not designed that way.  It still astounds even well-educated people when they are reminded that they do not vote for the president; they vote for presidential electors, who usually vote for the candidate they represent, but they are not bound to do so.

And, second, if there is no promise of a popular vote, there is no constitutional problem with the second-place finisher in that vote winning the presidency; it has happened several times – most recently, in 2000, when George W. Bush got about 543,000 fewer votes nationwide than Al Gore, but achieved victory in the Electoral College.

But the most significant constitutional point is that the Supreme Court, beginning with a decision in 1892 (in the case of McPherson v. Blacker), has said repeatedly that there is no command that the states choose their presidential electors in one way only.   The 1892 ruling, in fact, upheld a decision by the Michigan legislature to switch from a winner-take-all to a district-by-district system.  And the core principle of that decision – that it is up to the states to choose the method – was reaffirmed by the Court in its decision in Bush v. Gore.

The heart of the concern expressed by Rachel Maddow, of course, was not a constitutional one: she was making the political argument that legislatures should not frustrate the choice that a majority of the state’s voters made at the ballot box, and that doing so would result from partisan gerrymandering of congressional districts after the 2010 elections.

But suppose that the legislatures in formerly “battleground states” do succeed in switching their states to district-by-district choice of presidential electors.  Could anybody sue to challenge that constitutionally?

The simple answer, and the answer that perhaps has the longest historical pedigree, seems to be no.   Who can claim injury, and thus have a viable legal point, if the Constitution allows a switch to a district system?  Could the popular vote winner in a state claim injury?  If the popular vote winner were a Democrat, say, could that party sue, or could some individual voter who cast a ballot for the Democratic candidate claim that his or her vote didn’t count?

If partisan gerrymandering of congressional districts is not a constitutional problem on its own (and the Supreme Court has been unwilling so far to say that it is a problem), then the fact that a legislature did move to a district system explicitly to favor the nominee of one party might seem to be immune to a challenge on that ground.

So, what’s left?   The only avenue for a lawsuit against a district system may well be a variation on one that worked in 2012 in several lawsuits challenging alleged voter-suppression efforts by Republican officials.  That is a claim that election laws may not be written, or enforced, in a way that denies voters equal opportunity to vote, and to have their votes counted equally.   In those cases, the voters complaining of barriers were minority voters, but there may be a broader principle at work.

The Supreme Court, in a 1986 decision involving the exclusion of a minor party from the presidential elector ballot in Ohio, ruled that it is unconstitutional under the Fourteenth Amendment to put a burden on “the right of individuals to associate for the advancement of political beliefs.”   That hints at a right to sue, by members of a political party, to challenge a system that, in practical terms, undermines their right to collectively make a political choice.

Lawyers are creative people, and lawyers who specialize in election law have very rich legal imaginations.  Thus, it is not beyond contemplation that a lawsuit might be put together to challenge a switch to a districting system when that is done – and is proved to be so – to guarantee that one party’s nominee will prevail no matter how the statewide vote went.

True, such a claim is fairly close to a partisan gerrymandering argument.  And, of course, it would threaten the states’ broad constitutional power to choose how to pick electors.  But it just might have a measure of plausibility to it.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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