Allocating electoral votes by congressional districts
By Edward Zelinsky
In presidential elections, Nebraska and Maine today allocate one elector to the candidate who prevails in each congressional district in the state and award the remaining two electors (corresponding to the states’ U.S. Senators) to the statewide popular vote winner. All other states bestow their electoral votes as a bloc on a winner-take-all basis. In Pennsylvania, the Republican governor, senate majority leader, and speaker of the state house of representatives propose that, starting in 2012, the Keystone State emulate Nebraska and Maine and apportion one electoral vote to each of the state’s congressional districts and thus to the presidential candidate receiving the most votes in that district.
Had this method been used in 2008, Barack Obama, instead of receiving all 21 of Pennsylvania’s electoral votes under the winner-take-all rule, would have received only 11. The proposal to shift Pennsylvania to the district-by-district allocation followed in Nebraska and Maine has brought sharp criticism from Democrats. The New York Times, for example, while acknowledging that the Pennsylvania proposal is “entirely legal,” proclaims, with the Times’ customary humility, that the proposal is “entirely wrong.”
A similar controversy, with the parties reversed, occurred in 2004. Had it been approved by the Colorado electorate, Amendment 36 would, for 2004 and for future presidential elections, have awarded Colorado’s electoral votes on a proportionate basis, rather than pursuant to the winner-take-all rule.
Presaging the rhetoric of today’s opponents of the Pennsylvania proposal, George Will labeled Amendment 36 “pernicious.” Similarly, Steve Forbes argued that it may be necessary for Congress “to invalidate Colorado-like amendments” and thereby compel the states to allocate their respective electoral votes on a winner-take-all basis. In fact, the Colorado electorate rejected Amendment 36 and thus kept the Centennial State on the prevailing, winner-take-all system for awarding electoral votes.
I suggest that everyone calm down. There is nothing sacrosanct about the winner-take-all system which now prevails in forty-eight states. The Constitution neither requires that system nor, for that matter, requires popular elections of presidential electors. If the Pennsylvania legislature wants to designate the Steelers’ offensive line as the state’s presidential electors, it has the constitutional right to do so.
Obviously, the proponents of Amendment 36 sought partisan advantage, just as the backers of the current proposal in Pennsylvania seek such advantage today. It is, however, difficult to predict in advance which party will benefit from any proposition like Amendment 36 or the proposal to allocate Pennsylvania’s electoral votes by congressional districts. It was the Democratic Party which advanced Amendment 36 in 2004. However, had Colorado’s electoral votes been allotted proportionately in 2008, the beneficiaries would have been Senator McCain and Governor Palin who lost the overall popular vote of the Centennial State but would have received electoral votes under the proportional system. Similarly, if the Republican presidential ticket carries the overall popular vote in the Keystone State in 2012, switching to the Nebraska-Maine method of allocating electoral votes by congressional district will serve the interests of the Democratic Party, rather than of the Republicans sponsoring that switch.
Two values argue for letting the states experiment with either the proportionate allocation of electoral votes as was proposed in Colorado or allocation by congressional districts: federalism and the desirability of a strong two-party system.
The Constitution, reflecting the Framers’ commitment to federalism, gives each state the right to determine the method of selecting its presidential electors. Today, all states conduct a popular vote for president. However, early in the history of the Republic, the state legislatures elected the members of the Electoral College. Subsequently, some states experimented with popular voting and, eventually, all the rest followed.
Critical to the federalist ethic is belief in the desirability of letting states experiment. Sometimes such experiments work; sometimes they do not. So it would have been with Amendment 36. Maybe proportionate allocation of electoral votes would have proved a good idea; maybe not. Why not let Colorado experiment, just as, in an earlier age, some states began to experiment with popular voting for presidential electors in lieu of legislative selection?
Nebraska’s and Maine’s experimentation has not harmed American democracy. Colorado’s experiment, had it been implemented, would not have been a harbinger of doom. By the same token, Pennsylvania will not decimate American democracy by allocating its electoral votes among its congressional districts.
Moreover, the proportionate allocation embodied in Colorado’s Amendment 36 and broader use of the Nebraska and Maine systems might help combat one of the most troubling aspects of American politics today: the absence of competitive, two-party elections for Congress and the state legislatures. Either approach to awarding electoral votes might strengthen the two-party system by encouraging the weaker party in each state to campaign in that state or at least in parts of the state. In the process, the presidential campaigns would bolster each party for the future.
In the contemporary U.S. House of Representatives, a relative handful of seats are truly competitive between Republican and Democratic contenders. Similarly, comparatively few Americans today vote in serious, inter-party contests for state legislative seats. In many states, unopposed legislative candidates are fast becoming the norm.
There are many reasons for this dismal state of affairs including the enhanced sophistication with which incumbents can gerrymander to protect themselves and the possibility that like-minded voters increasingly segregate themselves geographically, making for more one-party districts.
But another important reason we lack competitive, inter-party elections for Congress and the state legislatures is that every four years, presidential campaigns, instead of energizing the two major parties throughout the nation, ignore most of the country to concentrate on a relative handful of closely-divided states. Under the winner-take-all method of allocating electoral votes, it made no sense for the McCain campaign to devote resources to New York or for the Obama campaign to spend resources in Texas. As a result, the weaker party in each of these states atrophies further, rather than receiving a boost from an active presidential campaign.
Under a proportionate allocation of electors or the allocation of electors by congressional district, it would pay for the less dominant party in each state to campaign in that state or in its more closely-divided congressional districts in order to increase its share of the state’s electoral votes. Such presidential campaigning would strengthen for current and future elections the Republican party in predominantly Democratic states and vice versa, making the political system more competitive for the long run.
Commentators such as Wagner College’s Joshua Spivak make the counter argument that Pennsylvania’s allocation of electoral votes by congressional districts will impact negatively on the American political system. However, without letting Pennsylvania’s experiment proceed, there is no way of knowing whether Mr. Spivak’s pessimistic prediction is correct or whether my more benign projections will prove more accurate.
Had Colorado’s voters approved Amendment 36, the constitutional order would not have fallen. Similarly, switching Pennsylvania to the system used in Maine and Nebraska will not be the death knell of American democracy. In a federal system, experimentation is a good thing. In this case, it might even strengthen the competitiveness of the two-party system.
Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. His monthly column appears here.