Winner-take-all is not unconstitutional

Article: Winner-take-all presidential elections: Unconstitutional and unfair to voters in 48 states

I’ve openly advocated for the Nebraska/Maine model for the Electoral College, believing it to be a more fair representation of votes across the country. Even going so far as to conduct a math experiment showing this in practice. Somewhat. My experiment more favored a proportional distribution compared to district distribution of votes. I showed that if that model had been universal, the landslide Electoral College victories of the 20th century wouldn’t have nearly been such a landslide. But it also wouldn’t have changed the outcome: the winner would still be the winner.

I know that getting the Nebraska/Maine model universally across the country is wishful thinking. As much as I’d love to see it happen, if California isn’t willing to adopt it, no other State will follow suit.

But a recent article by Bill Weld and Sanford Levinson, linked above, is going so far as to say that the current “winner take all” model for how States award Electoral Votes is unconstitutional. Sorry, but not even close.

And they assert such through three arguments:

  1. Winner-take-all is anti-democratic;
  2. Millions of votes translate into zero; and
  3. Red state or blue, voters would benefit

The United States is not a democracy. I really despise how often I need to reassert that.

As such being “anti-democratic” is actually the point. The President is to be appointed by the States, not by popular vote. The States just have a bit of latitude in determining how that should happen. Though all States present that question to the People via popular vote, despite being under no obligation to do so under the Constitution.1Article II § 3 of the Constitution: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress”

That isn’t to say there aren’t any limitations on how the States can award those votes. And that is why, I’ve argued, the National Popular Vote Interstate Compact (NPVIC) is unconstitutional. If a State turns to the People therein to determine how to award the Electoral Votes, then they must not award them in such fashion that is obviously contrary to how those people vote.

And the NPVIC would force that. Had that Compact been in effect in 2004, it would’ve forced the member “blue States” to award their votes to George W. Bush despite the people in those States voting for John Kerry. Something those pushing the NPVIC seem to forget. Do they believe a Republican candidate hasn’t won the popular vote since 1988?

Winner-take-all is not contrary to how the people vote. It’s the name of the game with all Federal and State elections, actually, in which, routinely, “millions of votes translate into zero”. Specifically with the House of Representatives. So why not argue for Representatives to also be elected proportional to the vote rather than via congressional districts?

As I’ve argued in a separate article, proportional award of the Electoral Votes would more accurately represent the popular vote in a State. It would also allow third party candidates to win Electoral Votes where they otherwise would lose out – such as the significant number of votes Ross Perot won in 1992 and 1996, and again with Gary Johnson in 2016. It would also be more in line to how both Democrats and Republicans award delegates in their primaries.

But since “winner take all” doesn’t run contrary to how the People vote, it isn’t unconstitutional.