Getting rid of winner-takes-all in the electoral college could backfire badly
A new organization named Equal Votes is pushing to make a supreme court case to undo the electoral college. They hope to use a precedent set in the famous "Bush v. Gore" 2000 election case, which strengthened the application of the equal protection clause to election law. They want to show that the "Winner takes all" approach that 48 states use to hand out electoral college votes is a violation of the idea of one person one vote. States would then not be able to use it.
It's an interesting idea, but I have grave concerns that it might backfire, and badly. Worst case, it could guarantee a Republican President into the indefinite future. Hopefully not, but that's a bad result, even if you're Republican leaning.
My friend Larry Lessig is supporting this, and I don't doubt the theory that it might win. The idea is that since a state could assign its electors in proportion to how its citizens voted, it is depriving them of their rights by not doing so. If you are in a safe state and not in the dominant party, your vote is useless and effectively counts for nothing.
It is far from certain that this logic can win. Winner takes all is of course the norm in democracies. The country only gets one President even though almost half the country didn't want him. States only get one governor. In California, where state legislators are elected by districts and some Republicans get seats, the reality is that the Democrats get complete power, not partial power. And in the current congress, it takes defections or filibusters to stop complete rule by the Republicans (even though, due to gerrymandering, they got fewer votes than the Democrats in the house.)
Voting by gerrymandered district
And this is where we get the first big risk. Two states, Maine and Nebraska, don't do winner takes all. They follow what seems a very sensible plan at first. A state's electoral college delegation is equal to the number of congressional representatives they have: House members plus two. These states select two electors based on statewide vote, and then select the other electors based on the vote in each district. Just like members of congress, the electors represent their "districts."
There is a risk that if the court held that winner-takes-all is invalid, they might not rule that the established district based system is invalid. Equal Votes will ask for that, but they might not get it. If they don't get it, then some states, in particular the gerrymandered states, may decide to follow the Maine system. And being gerrymandered like this, they are likely to return a slate of electors that is not too different from their congressional delegation -- a heavily skewed delegation. Even if many other states use a different system (like the proportional allocation Equal Votes wants) the result would be a college very much like congress. And that's a GOP college.
Why? Because of operation Redmap. This insidious, I would say evil, cheat on the electoral rules was done by Karl Rove and the RNC in 2010. They poured millions into a carefully selected number of unsafe Democrat statehouse seats around the country, enough to swing those statehouses to the GOP. Then they used that power to redraw the districts in those states in a gerrymandered way to favour the GOP. Not just in the congressional elections, but in future statehouse elections, cementing the power indefinitely. It will need a major anti-GOP swing, or supreme court ruling, to fix it.
This is not good. Even fair minded Republicans should reject winning by cheating the rules. Certainly cheating their spirit in a major way, and possibly even their letter. It gives that party power, but also bends its ideology, giving power to the members who got themselves permanent seats in the house.
The court might agree with Equal Votes on winner-takes-all. But this court, a Republican court, might even decide to deliberately give them what they ask for, but not all of it. The court could not rule against district based electors.
Stop gerrymandering first
I feel that if Equal Votes has the argument sufficient to block district-based electors, then it has the arguments enough to invalidate all the gerrymandering as well. The court has said they are open to that, but as I outlined it is hard for the courts to dictate a system. That's not their job.
I say get rid of gerrymandering first, and then you can go after the electoral college. Frankly, the college has only flipped the result twice in modern history, and in very close elections. Sure everybody is super-upset about the recent incident, but the gerrymandering is much more dangerous and much more permanent. Fix it first.
There is one really big thing that would come from reversing the college. It would mean all states were in play, with no such thing as safe and swing states. Candidates would need to campaign everywhere, and the voters in safe states could now show up to the polls, knowing they had a chance to alter the election. If it's not done by districts. Then we would even learn the real US popular vote. Because most voters vote in safe states and millions don't even bother showing up in those states, the US does not actually have a valid national popular vote, even though it gets widely reported on in the press. You can't add the results of real contested elections with symbolic pre-decided elections; it is not mathematically a valid thing to do.
I am also quite concerned with Equal Votes proposal that a proportionate distribution of electors would disenfranchise minority party voters. It seems extremely inconsistent to me. The problem is that with proportional allocation, some electors would be given to minor candidates. People like Gary Johnson, Jill Stein and Evan McMullin would have gotten electors this way in 2016. And why not -- Gary Johnson got 3.27% of the vote and there are 538 electors. (Johnson would have gotten 9 electors, though oddly not one from New Mexico, Stein and McMullin 1 each. We can't measure what Trump and Clinton would have gotten because we don't have valid results from the safe states.) Johnson might have seen 18 votes in a nationwide proportional distribution, Stein 6 and McMullin 3.
Here I see a darker side. With that system, it could have been that the proportionate race would be so close that no candidate would have gotten 270. This sends the election to the House, which being GOP probably would have elected Trump. (I'm not entirely sure, actually, but it probably would.)
I think that's a rare situation, but since this is not a super-bipartisan effort right now, they don't like that, and so they have proposed that there be a rule that a candidate must get 5% of the vote, or some other number, before getting any electors. After all, candidates that small can never win, they argue, so why deadlock the college because of them? (Note that Johnson and McMullin might have gotten 1 electoral vote each with a 5% minimum and a rounding formula.)
This is the attitude that keeps the USA, almost alone in the western world, as a 2 party country, and to its detriment. Minor parties can never rise if barriers are put in their way like this. If it's one person one vote, you can't tell all minority party voters, "Sorry, your vote won't count."
It might be, by the way, that the minor party candidates would lose voters if there were proportionate electors. Some of their support comes from people who, knowing the result in their state is already set, use their vote to support a minor candidate even though they might select a major one in a contested election. Of course, there are people who would go the other way, voting for their minor candidate because they can finally make a dent.
One way they could make a dent would be to allow them to be king-makers. This is the norm in most countries. The minor parties don't win, but they make deals with the major parties to form coalitions. They get promises to carry out a small portion of their agenda in exchange for support. Because the house is GOP, Trump would not have needed their support, so it would have all been about Clinton offering to do a few Libertarian things and a few Green things to win their support. Or maybe a lot of things -- Clinton would have really wanted it, so it might be too many things. In normal king-making, both sides are bidding.
If king-making were possible, it might become part of a minor candidate's platform. Jill Stein could have declared in advance, "vote for me and if (hah!) I don't win, I will direct my electors to vote for Clinton." I think it would have gotten her more votes.
I suspect that Nader might have been able to king-make to Gore if he had gotten electors, and Ross Perot could certainly have chosen between Clinton and Bush in '92. John Anderson didn't have enough, and he probably would have wanted to swing to Reagan anyway in 1980.
Of course, the states would have to allow this. Many states have laws demanding electors vote for the candidate they said they would vote for. Those laws would need to be invalidated. Or perhaps, an elector slate could say, "We pledge to vote Stein unless she can't win, and then we vote Clinton" and they would stay faithful to that pledge. No king-making in this case.
Or, while we are changing how states choose electors, we could promote multi-candidate ballots, such as Approval or Condorcet. No vote splitting to worry about, no minor parties to worry about.
Not the court's problem
The problem is that all of these things -- 5% minimum, multi-candidate ballots, king-making electors -- none of them are things the court should rule on. The court's job is to say whether the legislature's rules are in line with the constitution. Not to write the rules, unless there is only one rule that is aligned with the constitution. But there isn't only one. There are many ways to offer equal protection and one person one vote. That also applies to rules for drawing districts, unfortunately. The court can say a district is drawn unfairly, but it's much harder for it to demand it be drawn in one particular way.
That is one reason the court might not tell states how to select electors. It may only tell them to make sure they follow the principle of equal voting strength. If members of congress are elected fairly, then how do you declare that the elector representing a district, rather than the state, is elected unfairly? It's tough, and no slam dunk either way. Fix the gerrymandering first.