Winner-take-all elections skew results
President Trump said something recently in an interview that most Americans should be able to agree on: We should change the way we elect the president. He told Fox & Friends that he would “rather have a popular election” for president than use the current system, which, in most cases, awards all of a state’s electoral votes to whomever wins the popular vote of the state, even if only by a small margin. As the president rightly recognized, if we eliminated swing states and safe states and just counted every vote equally, then we’d have a “totally different campaign” than we do now.
That last point is crucial to understand. As the president’s comments highlight, those who campaign to lead our nation every four years do not actually run national campaigns. Instead, presidential candidates focus on energizing voters in only a few swing states, because votes in those states actually impact the election — but votes in safe red or blue states don’t. That’s why 99 percent of campaign spending in the last election was in only 14 states. If you live in the other 36, you can watch the campaign on the news and follow along online, but don’t expect the campaigns to speak to your interests or try to persuade you or get you to the polls. To them, your actual vote hardly matters at all.
This divide between a few important swing states and many, ignored safe states lays bare the hypocrisy of our current system. States around the country tell voters that they are being given the right to vote for president — indeed, most states do not even permit the names of presidential electors to be printed on the ballot. But then when it comes time to count the ballots, states do not attempt to allocate their electoral votes to truly reflect the popular will of all of the voters of the state, much less the will of the voters nationwide. In the electoral system, all but two states toss away votes for president that were cast for any candidate who failed to win the popular vote. Those 48 states, including Texas, then cast all of their electoral votes for the victors alone.
This distortion is not only unfair, it’s also unconstitutional under well-established constitutional principles. The Supreme Court years ago determined that states may not administer winner-takeall, two-level elections for governor, because doing means that many votes are counted “only for the purpose of being discarded.” And if that sounds familiar, it should: It is just what almost every state does every four years. When tallying votes for president, states collectively count millions upon millions of votes only to discard them when it comes time to give them meaningful effect at the national level through the electoral system.
I am involved in a series of lawsuits challenging the current winner-take-all system, and the response of the states we’ve involved so far has been revealing. In Texas, for instance, the state has asked the court to dismiss the suit, but its filing hardly defends the merits of its winner take all system. Instead, its legal brief is long on history and short on the wisdom of a system that produces transparently unbalanced campaigns and unfair results. But states cannot merely rest on the laurels of the long history of winner-take-all, because that history is less revealing than it seems.
That is because many states instituted the winner-take-all system decades before the Constitution had an amendment requiring the equal protection. And winner take all was the rule across the nation more than a century before the Supreme Court decided that the Constitution required each vote to be treated equally under “one person, one vote.” So the relevant question is not whether a state could implement a winner-take-all law in, say, 1824 or 1848. Instead, the meaningful question is: What can states do now? Can they continue to throw away tens of millions of votes for president and operate a system that functionally ignores two-thirds of the electorate? The answer is clear: no, they cannot.