{"id":9110,"date":"2010-02-28T20:33:39","date_gmt":"2010-03-01T01:33:39","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=9110"},"modified":"2020-02-15T21:49:08","modified_gmt":"2020-02-16T03:49:08","slug":"a-different-way-to-run-the-electoral-college","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2010\/02\/a-different-way-to-run-the-electoral-college\/","title":{"rendered":"A Different Way to Run the Electoral College"},"content":{"rendered":"

\"800px-Simple2008PresElections-USA-states\"<\/a>In an earlier posting, Rick Esenberg expressed his opposition to recent George Soros-sponsored efforts to devise a plan to circumvent the operation of the Constitution\u2019s venerable Electoral College.<\/p>\n

The \u201cproblems\u201d with the Electoral College are well-known.\u00a0 Its \u201cwinner-take-all\u201d feature supposedly distorts the electoral process, and on four occasions (1824, 1876, 1888, and 2000), it has chosen a president who received fewer popular votes than one of his opponents.<\/p>\n

Debates over the future of the Electoral College often assume that there are only two options:\u00a0 scrap the institution altogether or else accept that it will continue to operate as it has in the past.\u00a0 Scraping the Electoral College is usually assumed to require a constitutional amendment, although the Soros plan would actually leave the Constitution unchanged but seek to bind electors to cast their votes for the candidate with the largest national popular vote regardless of the results in their particular state.<\/p>\n

There is an alternative, however, that would make the results of the Electoral College more democratic but would leave the Constitution unchanged.<\/p>\n

Although it has long been the practice that individual states award their entire electoral vote allotment to the candidate receiving the largest number of popular votes in the state, there is no constitutional requirement that states follow this approach.\u00a0 In the first part of the 19th century, many states split their electoral votes, and today two states, Maine and Nebraska, have abandoned the \u201cwinner take all\u201d rule.\u00a0 (In 2008, Nebraska split its electoral votes between McCain and Obama.)<\/p>\n

In the first third of the 19th century the selection by a single state of electors supporting different candidates was a frequent feature of American presidential elections.\u00a0 As late as 1824, five of 24 states did just that.\u00a0 In 1828, three states did so, including New York, which cast 20 votes for Andrew Jackson and 16 for the incumbent John Quincy Adams. \u00a0By the mid-1830\u2019s, every state appears to have embraced the winner take all system, although in 1860, New Jersey reverted to the older system and ended up dividing its seven electors between the Republican Abraham Lincoln (4) and the Northern Democrat Stephen Douglas (3)<\/p>\n

Article II of the United States Constitution makes it clear that each state has the power to adopt a different system of choosing electors, should it choose to do so.\u00a0 There are at least three ways that states could chose to apportion their electors that would produce more equitable allocations of electoral votes.<\/p>\n

A state could simply apportion its electors on the basis of the popular vote.\u00a0 For example, in 2008, Wisconsin\u2019s 10 electoral votes could have divided six for Obama and four for McCain based upon Obama\u2019s 56% to 44% margin of victory.\u00a0 On the other hand, such a system can run into problem because of the presence of \u201cthird\u201d parties.\u00a0 Like Wisconsin, Minnesota currently has 10 electoral votes.\u00a0 In 2008, Obama and McCain received 54% and 44% of the popular vote, respectively, with 2% going to third parties.\u00a0 The Constitution requires the appointment of actual electors, so it is not obvious as to whom the tenth\u00a0Minnesota elector would be assigned.<\/p>\n

A second possibility would be for a state legislature to divide the state into \u201celectoral districts\u201d with each district choosing one elector.\u00a0 Because each state has two more electors than it has representatives in Congress, congressional districts could not be used for this purpose.\u00a0 Instead, states would have to create special districts.\u00a0 Wisconsin, for example, would have to be divided into ten districts whose sole function would be the selection of presidential electors.\u00a0 Obviously, this could be done, but the process would involve many of the same difficulties that arise when the state has to redraw the lines of congressional districts.<\/p>\n

The third possibility is the approach currently taken in Maine and Nebraska.\u00a0 The presidential candidate receiving the largest number of popular votes in each congressional district receives one elector, and the winner of the statewide popular vote is awarded an additional two electors.\u00a0 In Wisconsin in 2008, Obama received the largest number of popular votes in seven of the state\u2019s eight Congressional Districts.\u00a0 Consequently, under the Maine\/Nebraska system he would have received nine of the state\u2019s ten electoral votes with the other vote going to McCain.<\/p>\n

While this approach would have had only a slightly different effect in Wisconsin (where Obama received all ten electoral votes), there are other states where the impact would have been greater.\u00a0 In Ohio, for example, this system would have divided the state\u2019s twenty electoral votes evenly between Obama and McCain instead of having all twenty go to Obama.\u00a0 Even in large states won easily by one candidate or the other, the losing candidate would have collected electoral votes.\u00a0 Under this system, McCain would have received eleven electoral votes in California and four in New York, while Obama would have received eleven votes in Texas and five in Georgia.<\/p>\n

Obviously, the great advantage of this system is that it does not require the creation of additional electoral districts.\u00a0 It would also create an incentive for candidates to campaign in states even if they perceived that they had no real chance of winning the overall popular vote in that jurisdiction.\u00a0 On the other hand, it is also possible that this system might make third party candidacies more popular since it would not be necessary to carry entire states to have a presence in the Electoral College.<\/p>\n

Had the Maine\/Nebraska system been in effect in every state in 2008, the final result would have been a 301-237 victory for Barack Obama, compared to the actual margin of 365-173.\u00a0 Very few states under this system would have awarded all of their electoral votes to a single candidate.\u00a0 In fact, if we remove the eight jurisdictions with three electoral votes (where a divided vote was impossible), 32 of 43 jurisdictions would have divided their electoral votes. \u00a0Of the eleven that would have voted unanimously, only four had more than five electoral votes, and only one (Massachusetts) had more than ten.<\/p>\n

Although the allocation of electoral votes would have looked much different, the Maine\/Nebraska system would not have produced a different result in any of the last three presidential elections (which are the only ones for which I have recalculated the vote).\u00a0 Obama would have won in 2008, although not by as large a margin.\u00a0 Earlier in the decade, the geographic dispersion of his supporters would have meant that George W. Bush would have twice been elected president under the district system.\u00a0 In fact, he would have won by even larger margins under this system than he did in 2000 and 2004, even though he received fewer popular votes than Al Gore in 2000.\u00a0 Under the Maine\/Nebraska system, Bush would have defeated Gore in 2000 by a margin of 288-250 (rather than 271-266), and John Kerry in 2004 by 317-221 (instead of 286-252).<\/p>\n

Even though the Maine\/Nebraska system would not eliminate the possibility of a \u201cminority\u201d president, it would \u201cdecentralize\u201d the electoral process and would better protect the rights of those who reside in less populous parts of the country to participate in the presidential election process in a meaningful way.<\/p>\n

The challenge of course is to convince the other 48 states that it would be in their and the nation\u2019s best interest to adopt the Maine\/ Nebraska approach.\u00a0 Unless all states adopted the \u201cdistrict\u201d approach, states retaining the winner-take-all system might actually become even more important.\u00a0 As critics of this approach have pointed out in the past, the original system of district elections disappeared in the early 19th century because of a perception that the winner-take-all states were able to exercise greater influence.<\/p>\n

Of course, states could be required to adopt a district system, but that would require a constitutional amendment.<\/p>\n

What follows is a state by state breakdown of electoral votes for the 2008 presidential election, had the Maine\/Nebraska system been in effect in each state. The numbers following the name of each state are the electoral votes for Obama and McCain, respectively.\u00a0 In states marked with an * Barack Obama was the recipient of the largest number of popular votes.<\/p>\n

2008 \u00a0Results, Alternative Approach to Choosing Electors.<\/p>\n

Alabama\u00a0 1-8
\nAlaska\u00a0 0-3
\nArizona\u00a0 2-8
\nArkansas\u00a0 0-6
\n*California\u00a0 44-11
\n*Colorado\u00a0 5-4
\n*Connecticut\u00a0 7-0
\n*Delaware\u00a0 3-0
\n*Florida\u00a0 12-15
\nGeorgia\u00a0 5-10
\n*Hawaii\u00a0 4-0
\nIdaho\u00a0 0-4
\n*Illinois\u00a0 18-3
\n*Indiana\u00a0 5-6
\n*Iowa\u00a0 6-1
\nKansas\u00a0 1-5
\nKentucky\u00a0 1-7
\nLouisiana\u00a0 1-8
\n*Maine \u00a04-0
\n*Maryland 8-2
\n*Massachusetts\u00a0 12-0
\n*Michigan\u00a0 14-3
\n*Minnesota\u00a0 7-3
\nMississippi\u00a0 1-5
\nMissouri\u00a0 3-8
\nMontana\u00a0 0-3
\nNebraska\u00a0\u00a0 1-4
\n*Nevada\u00a0 4-1
\n*New Hampshire\u00a0 4-0
\n*New Jersey\u00a0 12-3
\n*New Mexico\u00a0 4-1
\n*New York\u00a0 27-4
\n*North Carolina\u00a0 8-7
\nNorth Dakota\u00a0 0-3
\n*Ohio\u00a0 10-10
\nOklahoma\u00a0 0-7
\n*Oregon\u00a0 6-1
\n*Pennsylvania.. 11-10
\n*Rhode Island\u00a0 4-0
\nSouth Carolina\u00a0 1-7
\nSouth Dakota\u00a0 0-3
\nTennessee\u00a0 2-9
\nTexas\u00a0 11-23
\nUtah\u00a0 0-5
\n*Vermont\u00a0 3-0
\n*Virginia\u00a0 8-5
\n*Washington\u00a0 9-2
\nWest Virginia\u00a0 0-5
\n*Wisconsin\u00a0 9-1
\nWyoming\u00a0 0-3
\nDistrict of Columbia\u00a0 3-0<\/p>\n

Presumably the DC election would be on a winner-take-all basis, as it is in other states with three electoral votes.<\/p>\n","protected":false},"excerpt":{"rendered":"

In an earlier posting, Rick Esenberg expressed his opposition to recent George Soros-sponsored efforts to devise a plan to circumvent the operation of the Constitution\u2019s venerable Electoral College. The \u201cproblems\u201d with the Electoral College are well-known.\u00a0 Its \u201cwinner-take-all\u201d feature supposedly distorts the electoral process, and on four occasions (1824, 1876, 1888, and 2000), it has 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