In 48 states, the winner of the state’s popular vote is awarded all of its electoral votes. This is called winner-take-all.
According to four lawsuits in four states (two red, two blue), winner-take-all is unconstitutional. It violates the doctrine of one person, one vote, the suits allege. It also disenfranchises everyone who voted for a losing presidential candidate.
Plaintiffs want states to adapt what’s called proportional voting. That’s when a state’s electoral votes are awarded according to a candidate’s percentage of its popular vote.
But if the plaintiffs prevail, they may not achieve what they say they will. Proportional voting could give third-parties more power, making majority victories more unlikely. Given that the goal is getting around the anti-democratic Electoral College, such a battle might not be worth it. I think we should look to Maine for better options (more on that in moment).
Attorneys for the League of Latin American Citizens have filed suit in Massachusetts, California, Texas and South Carolina. They are asking federal judges to strike down winner-take-all in order to compel states to ensure the rights of free association, political expression and equal protection under the law. Luis Vera, an attorney for the group, told the Associated Press that voters who backed Democrat Hillary Clinton “essentially saw their votes disappear.”
“When that vote actually get to the Electoral College, it’s just thrown away. It’s counted simply to be thrown away.”
Vera’s group chose deliberately states red and blue to show that winner-take-all is bad for voters everywhere. He hopes the suits rise all the way to the U.S. Supreme Court. Vera believes a favorable ruling would push states to require “proportional distribution” of Electoral College votes. In that case, Donald Trump would have gotten 52 percent of Texas’ 38 electors while Clinton would have gotten 44 percent.
Critics say this is an matter for democratic deliberation, not the courts, and they are right about that. The problem is that none of the 48 winner-take-all states has incentive to change. Without incentive, we can expect silly arguments like this one from William Galvin, a Democrat overseeing Massachusetts’ elections. He said:
“When you start talking about what percentage did you win Ohio by, then you’re raising questions. This is a clearly a mathematical game.”
Yes, it is. It always is.
But that’s not why I’m skeptical.
Fighting winner-take-all suffers from the same problem facing the national popular vote effort (in which states form legally binding compacts to throw their electoral votes to the winner of the national popular vote). As I argued last month, the winner of the national popular vote can still lose majorities in individual states, contravening the entire point of getting around the anti-democratic Electoral College.
Same with proportional voting. It could still result in “winners” losing a state’s majority. More problematic is that divvying up shares of a state’s electoral votes could give third-parties more power by making it more unlikely that anyone would walk away with a majority victory. We already saw this happen in Michigan in 2016 even without proportional voting. Trump won 47 percent of the popular vote while Clinton, Gary Johnson and Jill Stein split the balance.
It would be different if the U.S. had a power-sharing system in which “winners” assemble governments with “losers.” But we don’t. As of now, the Steins of the world can only be spoilers. With proportional voting, they’d have more pointless power.
Everything in politics is theoretical until it’s tested. That’s why I’m interested to see how things pan out in Maine, which is experimenting with what I think is the most viable alternative to the anti-democratic Electoral College. In June, Maine will hold its first “ranked-choice” election. This is where voters rank their choices so that one candidate, major party or otherwise, will always win a majority of Maine’s voters.
As one expert told Politico:
“If Maine implements this, the momentum for adopting similar initiatives and legislation for ranked choice voting in other states is going to accelerate.”
We’ll see what happens, but ranked-choice, in theory, is the most practical solution to the Electoral College, because it does not seek to reform it. Instead, ranked-choice seeks to affirm a basic democratic principle: that the majority rules.
John Stoehr is a fellow at the Yale Journalism Initiative, an associate fellow at Yale’s Ezra Stiles College, a contributing writer for the Washington Monthly and a columnist for the New Haven Register.