If we kept the Electoral College but eliminated winner-take-all, the popular candidate would win.

[pnwmom]

There is nothing in the Constitution that requires winner-take-all. That didn't happen till 1824, another election won by a popular vote loser.

The A.G.'s of non-swing states should sue on the grounds that our present Electoral College system denies "one person, one vote." It makes some votes -- those in the swing states -- more valuable than others.

BUT it is important that all states do this at once, which is why this would probably require a SCOTUS decision. Otherwise, states that switched to proportional representation would lose influence in the Electoral College.

http://www.fairvote.org/how-the-electoral-college-became-winner-take-all

The election of 1824 is most famous for the "corrupt bargain," a deal in the House of Representatives that gave John Quincy Adams the presidency despite his winning fewer popular and electoral votes than Andrew Jackson. But 1824 was also significant for another reason: it was the first election in which the majority of states used a statewide winner-take-all voting method for choosing their presidential electors.

It is a system that now seems like a fundamental part of the American democracy. Presidential candidates compete to win states, which is how they get votes in the Electoral College. The U.S. Constitution does not mandate that system, however. Instead, it is left up to the states to determine how they select their representatives in the Electoral College. For the first 13 presidential elections, spanning the first four decades of the history of the United States, states experimented with many different electoral systems.

The shift to statewide winner-take-all was not done for idealistic reasons. Rather, it was the product of partisan pragmatism, as state leaders wanted to maximize support for their preferred candidate. Once some states made this calculation, others had to follow, to avoid hurting their side. James Madison's 1823 letter to George Hay, described in my earlier post, explains that few of the constitutional framers anticipated electors being chosen based on winner-take-all rules.

[JoeStuckInOH]

1. I have been saying this for the last 11 months at posts blaming the EC.

The EC is fine. The fact that most states award 100% of their EC votes to the State winner IS NOT.

The best part is... there is no need for a constitutional amendment or Federal legislative action to make this change. THE STATES control their OWN awarding of EC votes. This is a state-level issue.

[pnwmom]

2. It is a state level issue in one sense. But if only blue states were to do this,

all they would succeed in doing is reducing their own influence.

We need a Federal Court decision mandating this change for all states, on the grounds of one person, one vote.

[JoeStuckInOH]

3. SCOTUS would throw that out. Probably rule it as states-right thing.

I don't think the Feds could tell the States how to vote just like your state can't you how to vote.
The states have to collectively agree to do it on their own and keep it that way.

[pnwmom]

4. States aren't allowed to abrogate someone's civil rights. If it were determined that this

decision were infringing on the concept of one person, one vote, then the Courts could order the states to change the system. (Just like they could order the integration of schools, even though states run the schools.)

And when almost 3 million votes didn't count in the last election, the time may be ripe for such a decision.

[JoeStuckInOH]

5. I honestly don't thing democrats or republicans would ever vote such a bill through.

States splitting EC votes makes it MUCH more likely for 3rd party voters to take significant chunks of electoral votes away from the election totals. This would hurt both democrats and republicans, ultimately and add a wildcard. A two person campaign is much easier to fight than a multi-person campaign where chaos can tilt the tables to an outlier... (SEE: Republican Primaries.)

[pnwmom]

9. But the Supreme Court could, on Constitutional grounds. See Lessig and Painter's essay.

Post #7

[unblock]

6. One person - one vote was specifically *not* the founders' intent.

It's a nice ideal, but that concept isn't in the constitution regarding presidential elections. the electoral college was designed specifically *not* to give equal voice to each person in presidential election, otherwise it would be based on congressional representation alone.

Instead, it is based on congressional plus senatorial representation, which gives greater voice to those in smaller states.

Winner-take-all is a different problem. Eliminating that could get us closer to one person - one vote, but not entirely.

[pnwmom]

7. The electoral college wasn't winner-take-all till 1924. That is not part of the Constitution

and can be changed. None of the framers anticipated that someone could win by 3 million votes and still lose.

By Lawrence Lessig and Richard Painter

Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard and founder of EqualCitizens.US. Richard Painter, the S. Walter Richey Professor of Corporate Law at the University of Minnesota, was the “ethics czar” for President George W. Bush.

https://www.usatoday.com/story/opinion/2017/10/13/forget-gerrymandering-lets-fix-electoral-college-lessig-painter-column/757448001/

But the truth is that proportionality is a fundamental principle of any representative democracy, including our own. Since the Supreme Court began enforcing the 14th Amendment in voting rights cases, it has demanded that democratic systems weigh votes equally. That principle of proportionality is at the heart of the “one person, one vote” rule, which the court has imposed on every representative system (save the United States Senate where the Constitution specifically requires two senators per state).

This point is critical when considering the Electoral College, another odd feature of our current political system and one that presents a more straightforward case for change. All but two states allocate their electors to the winner of the popular vote in that state. That rule of winner-take-all is a clear denial of proportionality. A million people in Massachusetts and a 1.3 million in Minnesota voted for Donald Trump. Their votes had zero weight in determining the presidency. The same with Democrats in Montana or Texas: The system counts their votes at zero, just because they are in the minority in their state.

SNIP

The Supreme Court has repeatedly held that “one person, one vote” principle applies to the “presidential selection process” too. That was the basis of its judgment in Bush v. Gore (2000). But the court has never considered directly whether the state imposed rule of winner-take-all is consistent with that fundamental federal principle of equality.

It’s time that it did. Unlike with gerrymandering, the court could enforce this value of proportionality simply and directly, without anyone questioning the political motivation of anyone. The rule is understandable, and not just to “the intelligent man on the street,” in Roberts' phrase. And once established, it would not trigger an endless cycle of litigation. Of all of the instances in which the court has enforced equality, this one, administratively, could be the easiest.

[unblock]

13. "Not in the constitution" can mean different things

You're correct that winner-take-all is not in the constitution in that the founders didn't foresee it. However, they did very much permit it in the sense that they gave the power to the states to determine how to choose electors.

Keep in mind, further, that they also didn't require electors to vote in accordance with the majority winner in the state. They very much *wanted* a human elector capable of overruling the majority of state voters.

When I said one person - one vote wasn't in the constitution with respect to presidential elections, in meant that in the sense that the founders explicitly chose something other than that.

States aren't even required to hold elections at all for president! The legislatures can pass a law specifying something completely different. The courts only require one person - one vote within a state *if* that state chooses to hold an election.

Between not requiring elections, allowing electors to vote however they want, and allocation electoral votes based on membership in both houses of congress, it's clear that the founders did *not* want one person - one vote for presidential elections.

There is zero chance the Supreme Court would throw out winner-take-all based on that argument.

It's a good argument for doing away with it through some other means (the multistate compact, e.g.) but not via the Supreme Court.

[ClarendonDem]

8. All good points

And I find the notion that we will eliminate the electoral college pretty far-fetched. Only the most populace states (and probably only blue ones) are going to favor such a change. And I don't think that any court would find the electoral college unconstitutional since the Founding Fathers included it in the Constitution itself.

[pnwmom]

10. You're missing the point. I suggest you read Lessig and Painter's essay in post #7.

No one is suggesting that the Court would find the Electoral College itself to be unconstitutional. But the Electoral college did NOT begin with winner-takes-all. That didn't start till decades later -- in 1824.

And a Court could find that that modern practice is unconstitutional, because it subverts the constitutional principle of one person, one vote.

[ClarendonDem]

11. How can a court find something that is part of the Constitution

Unconstitutional? And the "modern practice" -- winner take all -- has been in place for almost 200 years, so I also doubt any court would find that practice unconstitutional. And if a state like California implemented this practice alone (as others pointed out I think), that simply hurts Dems, because Republicans or third parties take a number of electoral votes that the Dem candidate would otherwise win.

I understand the attraction of a change, but don't think there's any way it happens.

[boston bean]

19. The constitution does not state that each state must give all their electoral votes to

The party who won the state.

It use to be proportional in its original configuration which fits more closely to the democratic principle of one person one vote.

This winner take all violates that.

[ClarendonDem]

21. Sorry, didn't mean to imply that winner take all was in the Constitution

I disagree that a court will rule that winner take all violates the one person/one vote principle. I question who would even have standing to assert that claim.

[karynnj]

12. Not true, though it would be closer

In very close elections that come down to very close elector numbers, you could still have the popular winner lose.

[briv1016]

14. If we had to do this state by state the blue ones would likely be the first to split

making it even easier for Republicans to win with a minority of the vote. I'm not sure if it'd be constitution (let alone possible) to do this all at once with a single federal law.

[pnwmom]

17. I'm not talking about a federal law. I'm talking about a federal court decision

that ruled that the states using winner-take-all was unconstitutional.

[briv1016]

18. Good luck with that.

Thomas, Kennedy and Ginsburg (and possibly Breyer and/or Alito) are all still likely to be replaced by Donald or Pence.

[TheFrenchRazor]

15. both of those have equal chance of happening, so i'd rather just push to get rid of EC. nt

[onenote]

16. Can you explain how Hillary would have won under the EC approach you are proposing?

[ClarendonDem]

22. Yeah, hadn't thought about that

Even if the vote was proportional she would have lost, she just would have lost by more, right? Trying to do the math in my head.

[Adrahil]

20. Well, there is the issue..

That low population states get at least 3 electoral votes, no matter what.

This magnifies the power of the individual vote for that that. Someone from Wyoming's vote counts 3.6 times the vote of a person in California.

[dsc]

23. ending winner take all wouldn't necessarily help

the only other way they are awarded now, Congressional districts, would still have her lose. She won only 205 while Trump won 230. He also won more states than she did (30 to 21). He would have won 290 to 247. A pure proportional system (including partial EV ) would make it harder but not impossible for the popular vote winner to lose. As long as small states get more votes per person than large ones then the popular vote loser, can indeed lose. A proportional system that didn't split individual EV would still see the popular vote winner lose (I think even Hilary might have lost that way)