LOSING BARGAIN: WHY WINNER-TAKE-ALL VOTE ASSIGNMENT IS THE ELECTORAL COLLEGE'S LEAST DEFENSIBLE FEATURE.

Author:Florey, Katherine
 
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ABSTRACT

The electoral college is usually considered as a single institution that--in contrast to a system of direct election--mediates the popular will and advances counter-majoritarian principles. To its critics, this role is a destructive one; the electoral college thwarts the foundational democratic idea that all votes should count equally and the majority's choice should lead. By contrast, defenders of the electoral college argue that it is a deliberately crafted institution whose deviations from nationwide popular sentiment are part of its design. Yet the electoral college is not a single institution but rather a combination of procedures. The electoral college produces results potentially different from those that would be achieved by direct election through several distinct mechanisms, including the two-vote bonus given to all states, the assignment of electoral votes based on total population rather than voters, and the award of state electoral votes on a winner-take-all basis. Of these mechanisms, the use of winner-take-all rules stands out as the least defensible. In contrast to other aspects of the electoral college, winner-take-all systems were not part of the electoral college's original design and were adopted haphazardly at the state level, without systematic consideration of their national consequences. Further, winner-take-all rules cause considerable harm by contributing most strongly to the risk of popular-electoral splits, by creating incentives for fraud, voter suppression, and other undesirable campaign tactics, and by arbitrarily privileging some voters' preferences at others' expense. As a result, advocates for electoral college reform should make abolition of winner-take-all central to both their critiques of the current process and their evaluation of reform proposals.

CONTENTS INTRODUCTION I. THE HISTORICAL DEVELOPMENT OF ELECTORAL COLLEGE'S COUNTER-MAJORITARIAN FEATURES A. The "Constant Two" Small-State Bonus B. Population-Based Representation in the Electoral Vote C. The Evolution of Winner-Take-All II. THE DISTINCTIVE III EFFECTS OF WINNER-TAKE-ALL A. Winner-Take-All's Negative Effects on the Election Process 1. Contributing to Arbitrary Electoral-Popular Splits 2. Incentives for Fraud and Voter Suppression 3. Arbitrarily Distributing Power to Certain Voter Groups 4. Distortions of the Meaning of an Election 5. Third-Party Mischief and Spoiler Effects B. The Experience of Winner-Take-All in Party Nominations 1. Winner-Take-All in the Evolution of Modern Primaries 2. Conclusions from Winner-Take-All in Party Primaries III. IMPLICATIONS FOR ELECTORAL COLLEGE REFORM A. The Underemphasis of Winner-Take-All in Electoral College Critiques B. The Case That Winner-Take-All Is the Electoral College's Worst Feature C. The Practical Consequences of a Winner-Take-All Focus D. Reform Proposals and Winner-Take-All 1. Direct Election: Proposals and Historical Experience 2. Alternatives to Direct Election Proposals 3. Using the Courts to Undermine Winner-Take-All CONCLUSION INTRODUCTION

Even as the electoral college has, for the second time in sixteen years, produced a president who did not win the popular vote, (1) electoral college reform seems in some ways farther away than ever. No recent effort to change the manner in which the president is elected has progressed nearly as far as the proposed Bayh-Celler constitutional amendment to institute a direct election system, which passed the House by a wide margin in 1969 but ultimately failed to come to a vote in the Senate. (2) While the National Popular Vote Interstate Compact--an ingenious idea developed by a group of professors and legislators in the wake of the 2000 election (3)--has been passed by eleven states, its progress has slowed with no state enacting it into law since New York did so in 2014. (4) The current president of the United States, who in 2012 called the electoral college a "disaster for democracy," has more recently hailed it as "actually genius in that it brings all states, including the smaller ones, into play." (5) Despite dire warnings in the decades prior to the 2000 election that an electoral-popular vote split would be a "debacle" and a "disaster," (6) it seems that Americans have, in fact, learned to live with such a result as a regular occurrence. Indeed, not only have fears that an electoral-popular split would provoke a constitutional crisis failed to materialize, but the country's apparent acquiescence may even have decreased momentum for a change in the process. (7)

Despite this discouraging backdrop, this Article argues that it is time to take up the discussion again from a new angle. The electoral college is usually considered as a single institution that--in contrast to a system of direct election--mediates the popular will and advances values other than those that would be served by pure direct democracy. To its critics, this role is a destructive one; the electoral college thwarts the foundational democratic principle that all votes should count equally and the majority's choice should lead. (8) By contrast, the defenders of the electoral college argue that it is a deliberately crafted institution whose deviations from nationwide popular sentiment are part of its design. (9)

Yet the electoral college is not a single institution but rather a combination of procedures. The electoral college produces results potentially different from those that would be achieved by direct election through several distinct mechanisms, (10) three of which are currently significant and relevant. (11) First and most obviously, the electoral college gives a two-vote non-population-based bonus to each state, sometimes called the "constant two", (12) thus relatively advantaging smaller states at the expense of larger ones. Many critics--and, in some cases, defenders--of the electoral college have tended to focus primarily on this feature, presumably because the manner in which it advantages small states' voters is readily apparent. Nonetheless, there is wide consensus that the two-vote bonus plays a relatively small role in the electoral college's operation. (13)

Second, the electoral college allocates power among states based on total population rather than voters, allowing groups such as nonvoters, children, noncitizens, and disenfranchised felons to count in the determination of each state's relative share of the electoral vote. (14) By contrast, a system for direct election of the president would by definition only count those who are eligible to vote and who actually do so. This feature of the electoral college is not currently among its most controversial and, unlike the two-vote bonus, it need not necessarily be seen as undemocratic, particularly if one believes that the preferences of nonvoters are similar enough to those of voters to allow for a sort of virtual representation. After all, seats in the House of Representatives are apportioned the same way. (15) Historically, however, the question whether to consider voting population or total population has been a major focus of dispute both in the initial design of the electoral college and in discussions about the future of apportionment following the Civil War. (16)

Finally--and with potentially momentous consequences--the electoral college overwhelmingly relies on a winner-take-all method of allocating state electoral votes, a system historically known as the "unit rule." (17) Forty-eight states award electoral votes on a pure winner-take-all basis--the candidate who gets the most votes in that state receives the state's entire slate of electoral votes, regardless of margin of victory or overall percentage. Two states, Maine and Nebraska, use what might be called a modified winner-take-all system under which some electoral votes are awarded at large to the overall winner while others are awarded to the winner of each congressional district. (18)

In several important ways, the winner-take-all system differs sharply from the electoral college's other counter-majoritarian procedures. The first is the manner in which it came into being. In contrast to the two-vote bonus and population-based allocation, both of which were the subject of extensive historical debate and compromise, (19) the winner-take-all system evolved haphazardly at the state level, as a function of decisions by individual states designed to preserve their influence, rather than collective deliberation. (20) Winner-take-all was not envisioned by the Framers, was in no way part of the electoral college's design, and has never been seriously addressed by Congress. (21)

Second, the winner-take-all system stands out for the force of its influence on results. Of the various electoral college mechanisms, winner-take-all has the greatest potential to produce a popular-electoral split on its own; it did so in the 2016 election, and it has been a significant and probably determinative factor in the popular-electoral splits of the past. (22) In a large number of additional elections, winner take-all allocation came perilously close to creating such a split and would have done so with the shift of only a relative handful of votes. (23) Further, even where it does not result in an ultimate victor different from the popular vote winner, the winner-take-all system frequently produces an electoral result seemingly at odds with the popular will--magnifying a popular plurality into a decisive win or converting a significant but hardly overwhelming victory into a landslide. (24)

Third, winner-take-all allocation has numerous pernicious effects on the electoral process in addition to its potential impact on outcome. As many observers have complained, the winner-take-all system causes candidates to focus resources and visits on a handful of close states, while slighting or completely ignoring the others. (25) Perhaps more importantly, significant evidence suggests that non-swing states receive less attention...

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