States Can Pick Method of Allocating Electoral Votes

Member Group : Lincoln Institute

Article II, section 1 of the Constitution is the very model of legislative clarity. It reads:

"The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice-President chosen for the same Term, be elected, as follows:

"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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."

That is all the direction the constitution provides. And in plainest terms, it leaves the decision of how to select those electors up to the individual states. Most states have a winner-take-all format, meaning the winner of the statewide vote captures every electoral vote while two states apportion them according to the vote winner in each congressional district.

Both formats are constitutional and fair, as BOTH parties must acknowledge. After all, there was no outcry from the GOP when they captured votes in Maine in the past, and the current resident of the White House targeted a single vote in Nebraska – and won it – without complaint.

This context is important to consider when evaluating proposed changes to how Pennsylvania awards its Electoral College votes: the proposed changed method has been in use and accepted by both parties for generations.

This is not to say its uncontroversial, as there are obviously many arguments both for and against the proposal, ranging the whole spectrum of political ideology with varying degrees of political merit.

That said, any and all discussion should start only after we put one silly argument to bed: there is nothing unethical, unconstitutional or sinister in changing from a winner take all state to one that apportions votes based on congressional district. NOTHING.

That is the essential starting point – no matter the reason why you wish to oppose any change, it is INARGUABLE that this is fully within the contemplated and assigned powers delegated to the states by the constitution and by the people of Pennsylvania through their elected officials.

What this is, then, is very simple: a political and policy decision assigned to the individual States by the constitution. The process is fully within the power of the Commonwealth to both change and if the electorate so demands, change back.

That is not unconstitutional — its democracy.

So, against that backdrop, what exactly will the proposed changes mean? It’s actually rather simple.

Using the vote totals from 2008, President Obama would likely win 9 congressional district and be awarded the 2 senate seats due to his overall win for a total of 11 electoral college votes. The GOP would likely win 9 congressional districts as well, making the split 11-9, or 55% to 45%.

In 2008, Obama captured 54% of the vote. Under the new system he would get 55% of the Electoral College votes. It’s very hard to see that as inequitable.

On the contrary, there is a very good argument that the proportion is more equitable than the current method. Taken on its face as a policy and ignoring the purely political implications, the proportional assignment of Electoral College votes is fair to all involved – candidates and voters alike.

It is therefore fair to conclude that on a policy basis both the current system and the proposed changes are inarguably constitutional while one is significantly more representative of the will of the electorate.

That means any argument against (and, admittedly, very many for) the change is based on politics. There isn’t space or time to raise them all, but a few of the most prevalent merit discussion.

There is first and foremost the argument that the change at this stage in a Presidential contest is being undertaken to effect this election specifically and is ignoring long-term considerations. There is no denying that, as a Republican, I was immediately drawn to the opportunity to effectuate a 20-vote swing in 2012. It is the equivalent of picking up Maine, Vermont and Rhode Island overnight – something either party would love to do.

However, the converse is also true; it is as easy to argue that the continual use of a "winner-take-all" format is just perpetuating a political decision to "disenfranchise" 45-48% of the electorate. EITHER side of this argument is political – and therefore neither supports or defeats either position. Continued discussion of this aspect is counterproductive, as your view will depend on where you "sit" and most views in this regard are settled along presidential camps.

Another extremely prevalent argument, this from Republican opponents to the change, is that it makes purple congressional seats more vulnerable. I understand this argument – Presidential campaigns will spend their money where they can win; if a collar county district is trending hard to the Democrats, there will be no GOP money supporting the down ticket races. On the flip side there will be similar behaviors out of the Democrats in seats trending hard to the GOP in Western PA.

These are legitimate political concerns for the members in those districts (many of whom I consider friends) and for the Parties seeking to elect congressmen – but they are simply not policy objections. Therefore they are not relevant to the discussion whether the current or changed system best reflects the will of the people.

That is, ultimately, the problem with most of the arguments against changing the system: there are political arguments, not policy ones.

And, in the end, shouldn’t this be based on policy? On one hand we have a system where 50.1% can send 100% of the states’ votes to Washington to vote for President on our behalf; on the other we have a system that in most years will send a proportion that reflects the electorate’s mind.

On that basis, the decision to change seems pretty clear – once you filter out the cloud of party politics.

I am Scott Paterno, and that is the Uncomfortable Truth.