Supreme Court Upholds ‘Faithless Elector’ Laws

States can punish Electors who substitute their judgment for those of the voters.

The Supreme Court unanimously ruled that states have the right to hold Electors accountable. The ruling was just issued an hour ago and the reporting is thin.

NPR‘s Nina Totenberg (“Supreme Court Rules State ‘Faithless Elector’ Laws Constitutional“) apparently wrote up her report ahead of time, because it scarcely refers to the ruling:

The U.S. Supreme Court upheld Monday state laws that remove or fine Electoral College delegates who refuse to cast their votes for the presidential candidate they were pledged to support. The vote was unanimous.

The court majority said that to do otherwise would risk chaos, potentially putting the outcome of the 2020 election in doubt, and opening up new opportunities for manipulation and corruption.

[…]

Flawed as the Electoral College system may be, at the oral arguments in May, the justices expressed concern about tinkering with laws that bind the delegates to vote for the popular vote winner in their states.

Justice Samuel Alito observed that if the popular vote is close, the possibility of “changing just a few votes” [in the Electoral College] would rationally “prompt the losing party … to launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next president was going to be.”

Similarly, Justice Brett Kavanaugh alluded to what he called “the chaos principle of judging, which suggests that if it’s a close call…we shouldn’t facilitate or create chaos.”

Thirty two states have some sort sort of “faithless elector” law, but only 16 of those remove, penalize, or simply cancel the votes of the errant electors. The 16 are: Michigan, Maine, Colorado, Utah, Arizona, Indiana, Minnesota, Montana, Nebraska, Nevada, Washington, California, New Mexico, South Carolina, Oklahoma and North Carolina.

While the writers of the Constitution originally conceived of the Electoral College as a deliberative body of delegates with discretion as to who they would vote for, that notion quickly evaporated as political parties began to emerge, and by 1796 the selected electors were pledged to cast their ballots for the winner of the popular vote.

CNN‘s Ariane de Vogue (“Supreme Court says states can punish Electoral College voters“) does the same, although she does manage a wee quote from the opinion:

The Supreme Court said Monday that states can punish members of the Electoral College who fail to fulfill a pledge to vote for a state’s popular vote winner in presidential elections.

[…]

The vote count was 9-0.

“Today, we consider whether a State may also penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State’s popular vote. We hold that a State may do so,” Justice Elena Kagan said.

Three presidential electors in Washington state, for example, voted for Colin Powell in 2016 rather than Hillary Clinton and one voted for anti-Keystone XL pipeline protester Faith Spotted Eagle. A $1,000 fine was upheld by the state Supreme Court.

In Colorado, the legal outcome was different when Micheal Baca sought to vote for John Kasich instead of Clinton.

Baca’s vote was rejected and he was removed and replaced with a substitute who voted for Clinton. Baca was referred for potential perjury prosecution, although no charges were filed. He filed suit, and ultimately won when the 10th US Circuit Court of Appeals held that while the state does have the power to appoint electors, that does not extend to the power to remove them.

During oral arguments, Frodo Baggins, a hobbit from the “Lord of the Rings” trilogy, became a part of the court’s historical record.In a line of hypothetical questioning, Justice Clarence Thomas used Baggins as a case study.”The elector who had promised to vote for the winning candidate could suddenly say, ‘You know, I’m going to vote for Frodo Baggins. I really like Frodo Baggins.’ And you’re saying, under your system, you can’t do anything about that,” Thomas asked Baca’s attorney, Jason Harrow.”Your honor, I think there is something to be done, because that would be a vote for a non-person. No matter how big a fan many people are of Frodo Baggins,” Harrow said.

I’ve skimmed Justice Kagan’s opinion, which was joined by all but Justice Thomas, who wrote a concurring opinion (which I’ve yet to read), which was joined in part by Justice Gorsuch. It’s a PDF and excerpting requires reformatting I don’t have time for at the moment. But here’s the lede:

(a) Article II, §1 gives the States the authority to appoint electors “in such Manner as the Legislature thereof may direct.” This Court has described that clause as “conveying the broadest power of determination” over who becomes an elector. McPherson v. Blacker, 146 U. S. 1, And the power to appoint an elector (in any manner) includes power to condition his appointment, absent some other constitutional constraint. A State can require, for example, that an elector live in the State or qualify as a regular voter during the relevant time period. Or more substantively, a State can insist (as Ray allowed) that the elector pledge to cast his Electoral College ballot for his party’s presidential nominee, thus tracking the State’s popular vote. Or—so long as nothing else in the Constitution poses an obstacle—a State can add an associated condition of appointment: It can demand that the elector actually live up to his pledge, on pain of penalty. Which is to say that the State’s appointment power, barring some outside constraint, enables the enforcement of a pledge like Washington’s.

Updated to include another bit from the executive summary:

The Electors and their amici object that the Framers using those
words expected the Electors’ votes to reflect their own judgments. But
even assuming that outlook was widely shared, it would not be enough.
Whether by choice or accident, the Framers did not reduce their
thoughts about electors’ discretion to the printed page. Pp. 8-13.

(b) “Long settled and established practice” may have “great weight
in a proper interpretation of constitutional provisions.” The Pocket
Veto Case, 279 U. S. 655, 689. The Electors make an appeal to that
kind of practice in asserting their right to independence, but “our
whole experience as a Nation” points in the opposite direction. NLRB
v. Noel Canning, 573 U. S. 513, 557. From the first elections under the
Constitution, States sent electors to the College to vote for pre-selected candidates, rather than to use their own judgment. The electors rapidly settled into that non-discretionary role.
See Ray, 343 U. S., at 228-229. Ratified at the start of the 19th century, the Twelfth Amendment both acknowledged and facilitated the Electoral College’s emergence as a mechanism not for deliberation but for party-line voting. Courts and commentators throughout that century recognized the presidential electors as merely acting on other people’s preferences. [emphasis mine – jhj]

The outcome seemed like a no-brainer to me. The Constitution clearly gave the power to elect the President to the several states, with the Electors are a passthrough. The fact that an ideologically-divided Court was unanimous as to the result would seem to affirm that.

Our erstwhile resident attorney, Doug Mataconis, thought otherwise last August:

As a matter of law, it appears on its face that the 10th Circuit Court of Appeals got this case right and that any laws that purport to restrict how Electors vote in the Electoral College violate the Constitution. In this respect, there are several important facts to keep in mind.

First of all, the Constitution does give states the power to determine who their electors are chosen. While the modern practice has been that electors are selected from slates put forward by the individual candidates and that the slate of the candidate who wins the popular vote ends up being the slate of Electors that meets in December after a Presidential election will match those of the winning candidate, there have been other methods used in the past. For example, at the beginning of the Republic is was common for state legislatures to pick electors without regard to the popular vote. Second, the Constitution also gives the states the power to choose how those electoral votes are allocated. This is why states such as Nebraska and Maine are able to allocate Electors by Congressional District, with the candidate who received the most votes getting the two votes representing the state’s Senators. Third, the Constitution does not require that either the state or the Electors adhere to the popular vote when the Electoral Votes are cast after the Presidential Election.

Beyond these powers granted to the states, though, the Constitution grants the Electors a wide degree of discretion and does not appear to permit either the states or Congress to restrict the right of Electors to cast their vote as they see fit. This is why we sometimes see a handful of so-called “faithless electors” who cast a vote for someone other than the winner of the popular vote in their state and, often, for someone who is not even on the ballot. In doing so, though, these “faithless Electors” are arguably exercising the kind of independence that the drafters of the Constitution intended when they created the Electoral College.

Our resident elections expert, Steven Taylor, took a similar tack back in May:

Electors were originally intended to be independent actors and the US Constitution imbues them, not the people, with the power to elect the president. Article II, Section 1 states:

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.

The Electors shall meet in their respective States, and vote by Ballot for two Persons…

It is clear: the states appoint electors and electors vote for president and vice president. The people of the United States do not have any constitutional right to vote for president nor any guarantee they would have any specific role in choosing them.

[…]

It is my opinion that the Constitution clearly gives the vote to the electors and practice has reinforced this fact (Congress has always counted those votes). One could, perhaps, argue, that the state’s appointment power gives them control of the vote (but that strikes me as a weak argument-and why even have human beings as electors if they have zero agency?). I think, too, one could argue that states can fine the faithless but that the faithless vote still counts. I suppose that the appointment power could give states the right to replace an elector, as per the Colorado case.

although his main point was that the question is largely irrelevant:

Ultimately, given the partisan nature of the selection of electors, it is highly unlikely that an outbreak of faithless electors could change the outcome of an election. It is worth noting that most faithless electors are protest votes from the losing party. Five of the seven faithless electors in 2016 were Democrats. The two GOP examples of faithlessness are the real oddity. Both were from Texas, one vote for Kasich and the other for Paul.

Most elections have such a wide gap between electoral winner and electoral loser that the amount of faithlessness needed to swing the election would be unthinkable. Although an election like 2000 shows how it could matter, given that the final was 271 v. 266 (with one abstention, a Democratic protest).

At any rate, it will be interesting to see what the Court rules, but I don’t think it matters, ultimately. I cannot stress enough that the process of choosing electors is guaranteed to produce loyalists. There is no reasonable scenario in which electors as a group will ever act like a deliberative body. History and logic clearly demonstrate this. Whatever ruling the Court makes will be at the most marginal of the margin.

That’s certainly right. Although it would certainly have been possible for faithless Electors to have flipped the 2000 election—in which winner George W. Bush should have won by four Electors but won by five because a DC elector abstained to send some message or another and many were calling on Republican electors to defect to Hillary Clinton in 2016. (But Steven is right: the DC elector wouldn’t have been so cute if it would have changed the outcome and it was folly to think Electors pledged to Trump were somehow going to flip en masse to his Democratic opponent.)

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FILED UNDER: Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Sleeping Dog says:

    A good decision, though hardly consistent with textualism and strict constructualism. Anything that brings elections to reflecting the will of the people is beneficial.

    4
  2. James Joyner says:

    @Sleeping Dog: Kagan does a pretty good job of making the case that, literally from the beginning, states have bound Electors and that, every step of the way, the courts have backed that.

    Thomas gets there much more simply:

    The Court correctly determines that States have the power to require Presidential electors to vote for the candidate chosen by the people of the State. I disagree, however, with its attempt to base that power on Article II. In my view, the Constitution is silent on States’ authority to bind electors in voting. I would resolve this case by simply recognizing that “[a]ll powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each State.”

    4
  3. Gustopher says:

    That’s quite a jump for the original intent crowd, since we have plenty of documentation of the original intent, and this ain’t it.

    4
  4. James Joyner says:

    @Gustopher: Thomas gets there weirdly using original intent. Kagan does a pretty good job of documenting both the fact that 1) from a textualist standpoint, the Constitution doesn’t give the Electors discretion per se and 2) from a historical practice standpoint, they have never really had discretion. (I’ve added another excerpt to the OP to emphasize that.)

    1
  5. Joe says:

    Haven’t read the actual opinions yet, but it is not clear from the reporting if this ruling allows states to simply punish rouge electors, if states can prevent rouge electors’ votes from counting (i.e. nullify a rouge elector’s vote), or if states can legally mandate an elector’s vote be counted in a certain way regardless of how the elector cast it. If I’m an elector and I’m willing to risk a $5,000 fine to throw the election, can I do it and simply pay the fine?

  6. James Joyner says:

    @Joe:

    if states can prevent rouge electors’ votes from counting (i.e. nullify a rouge elector’s vote)

    Yes, they can. The Washington law upheld here merely fined violators but the Colorado law replaced them with compliant Electors. The Court upheld that 9-0.

    Presumably, they’d have to make that clear ahead of time but that wasn’t at issue today.

    1
  7. Joe says:

    @James Joyner:

    I’ve now skimmed through the decision and believe that is the best reading, but I did not see that aspect stated clearly. The court discussed resolving a split in how the state Washington’s attempt to fine rouge electors was upheld and Colorado’s attempt to nullify (or nullify and replace) rouge electors was rejected–this ruling favors the Washington approach. However, most of the ruling focused on Washington’s approach of punishment, I did not see anywhere else where it discussed Colorado’s nullification approach. Oddly it also said states could simply copy the USSR approach of providing ballots with only one name on it to the electors so they would not have the ability to vote for anyone else.

  8. I am mildly surprised by the 9-0 ruling. I concur that it violates a pure “original intent” position (one has but to read Hamilton in the Federalist Papers to make that argument). I can see the textualist argument, as per Thomas.

    Ultimately, I think this (like most SCOTUS decisions) is a lot less about interpretation heuristics and more about the Court reasoning that since it mostly has worked that way in the past, it might as well keep doing so.

    I stand by the assessment James’ quoted above: the outcome doesn’t matter much at all as it pertains to electoral outcomes (and a unanimous decision the other way would have been just as consequential).

    1
  9. @James Joyner: Just to amplify: they would have to have such a law in place, yes? (I have not read the ruling).

    This still would allow unfaithful electors if state law did not have a replacement provision, correct?

    2
  10. James Joyner says:

    @Steven L. Taylor:

    Ultimately, I think this (like most SCOTUS decisions) is a lot less about interpretation heuristics and more about the Court reasoning that since it mostly has worked that way in the past, it might as well keep doing so.

    Probably. Kagan handwaves textualism and mostly focuses on actions dating from the first non-George Washington uses of the EC to show that states have always been the actor.

    @Steven L. Taylor:

    This still would allow unfaithful electors if state law did not have a replacement provision, correct?

    That’s certainly how I’m reading it.

    2
  11. Just nutha ignint cracker says:

    @Steven L. Taylor:

    (and a unanimous decision the other way would have been just as consequential).

    I think that a decision the other way would have opened the doors to explorations of ratfwkkery for those given to it. Whether opening the doors would be consequential probably depends on the number of and skill sets of the ratfwkkers in question.

  12. @Just nutha ignint cracker: I have seen this hypothesis, I just don’t buy it. If the decision had gone the other way, we would just have seen parties working all the harder to make sure only the faithful were selected (which is pretty already what happens).

    I think people over-estimate the amount of mischief that can be done here from a practical point of view.

    3
  13. PJ says:

    If a state has adopted the NPVIC, and the winner of the overall popular vote didn’t win the state in question, would the state then be allowed to punish or replace an elector who pledges to vote for the state’s popular vote winner?

    1
  14. PJ says:

    Also, if a state is controlled by party A but the voters picked the Presidential candidate from party B then the state can choose to not punish or replace any faithless electors.

  15. James Joyner says:

    @PJ:

    If a state has adopted the NPVIC, and the winner of the overall popular vote didn’t win the state in question, would the state then be allowed to punish or replace an elector who pledges to vote for the state’s popular vote winner?

    Obviously, a hypothetical not covered in the decision. There are arguments that the NPVIC is unconstitutional, and that itself would need to be settled. BUT it’s hard to conceive of a state passing NPVIC and keeping a law on its books requiring its Electors to vote for the statewide winner rather than the national popular vote winner—much less enforce said law.

  16. @James Joyner: My initial thought is that this ruling substantially strengthens NPVIC as it clearly gives the power to select electors to the states themselves.

    So if the state decided its electors were selected based on the national popular vote and not the state’s vote, this ruling seems to back that kind of logic.

    2
  17. James Joyner says:

    @Steven L. Taylor: Yes, agreed. The caveat, as Doug frequently noted, was that the Constitution seems to preclude interstate compacts of that sort. But that’s very much an unsettled issue and one would think SCOTUS would really, really rather not be in the business of making another ruling that would decide a presidential election (as, the only way a case in controversy could arise would be another election where the popular vote winner lost the putative Electoral College).

    1
  18. Mu Yixiao says:

    My issue with this decision is that (with the exclusion of Maine and Nebraska), the electors don’t represent the popular vote. They represent the “winner”.

    Let’s take a hypothetical state with 20 electoral votes (18 districts, plus 2 Senate seats). A popular vote of 50.1% to 49.9% would result in the former getting 100% of the electoral votes and the latter zero. If 9 electors voted for the “loser”, they wouldn’t be “faithless”–they’d be accurately expressing the wishes of the public. How does “winner take all” reflect the popular vote?

    And the NPVIC? Under this ruling, if 100% of Freedonia votes for Bob–but Sue wins the national popular vote–Freedonia’s 10 electors must vote contrary to the wishes of Fredonia’s voters. They would have to vote according to the wishes of other states.

    Under NPVIC small rural states shouldn’t even bother voting. If you don’t live in a spike zone , your vote doesn’t matter.

    Maine and Nebraska have it right. Electoral votes cast by district. I would go a bit further and say that if the state-wide popular vote is within 10 points (45/55), the Senate vote should be split.

  19. HarvardLaw92 says:

    @Steven L. Taylor:

    Ultimately, I think this (like most SCOTUS decisions) is a lot less about interpretation heuristics and more about the Court reasoning that since it mostly has worked that way in the past, it might as well keep doing so.

    This was completely about the court deciding which outcome it preferred and then engaging in legal gymnastics to (badly, IMO) attempt to justify that outcome. They pulled an O’Connor.

    I won’t say that I didn’t expect this outcome, but I am disappointed in the so-called originalists / textualists for going along with the charade.

  20. @Mu Yixiao:

    How does “winner take all” reflect the popular vote?

    The simple answer is that we select electors in multi-seat plurality elections wherein the plurality winner of the votes wins the entire lists of seats (i.e., electors). That’s the rule.

    I actually did the thought experiment on this issue here for 2016.

  21. @Mu Yixiao:

    Maine and Nebraska have it right. Electoral votes cast by district.

    Only if you like a system wherein the EC can be gerrymandered.

    4
  22. Sleeping Dog says:

    @Mu Yixiao:
    @Steven L. Taylor:

    District assignment of EC votes works in Maine and Nebraska, because they have only 2 congressional districts and it is hard to gerrymander 2 seats. In 2017 the Pennsylvania SC throughout the states Congressional and legislative districts due to the in their view, the gerrymander denied fair representation to PA voters. The revised districts allowed Dems to pick up IIRC, 3 congressional seats. Other states such as North Carolina and Maryland are as badly gerrymandered.

    What would be preferable is the assignment of EC votes based on the proportion of the votes the candidates received. There’s no chance of that happening because rethugs would become a permanent congressional minority. Though they would retain their advantage in the Senate.

    1
  23. Sleeping Dog says:

    I’m moderation purgatory, so let me try this again.

    Your comment is awaiting moderation.

    @Mu Yixiao:
    @Steven L. Taylor:

    District assignment of EC votes works in Maine and Nebraska, because they have only 2 congressional districts and it is hard to gerrymander 2 seats. In 2017 the Pennsylvania SC throughout the states Congressional and legislative districts due to the in their view, the gerrymander denied fair representation to PA voters. The revised districts allowed Dems to pick up IIRC, 3 congressional seats. Other states such as North Carolina and Maryland are as badly gerrymandered.

    What would be preferable is the assignment of EC votes based on the proportion of the votes the candidates received. There’s no chance of that happening because rethugs would become a permanent congressional minority. Though they would retain their advantage in the Senate.

  24. Sleeping Dog says:

    Steven, James, someone. Please release me.

  25. “Under NPVIC small rural states shouldn’t even bother voting.”

    Of course, small rural areas in Portugal, Brazil and France vote in their respective presidential elections – and the probability of the election being decided by an individual voter of Alentejo, Piaui or French Polynesia is exactly the same of being decided by an individual voter of Lisbon, São Paulo or Paris.

  26. @Sleeping Dog:

    District assignment of EC votes works in Maine and Nebraska, because they have only 2 congressional districts and it is hard to gerrymander 2 seats.

    Is can be done, actually.

    And I would note that almost always the whole state goes the same way in any event.

  27. @Steven L. Taylor:

    And I would note that almost always the whole state goes the same way in any event.

    In Maine and Nebraska, that is (I don’t think that was clear above).

  28. An Interested Party says:

    Maine and Nebraska have it right. Electoral votes cast by district.

    No they certainly do not…this might be acceptable if districts were decided by nonpartisan organizations and there was little to no gerrymandering, but with the extensive partisan gerrymandering that exists now, this is the completely wrong way to decide who receives electoral votes…

    1
  29. de stijl says:

    I am 100% in favor of talking schemes to restructure how we vote and how our vote is counted.

    It would require an amendment to the constitution.

    I am for a borderless non-EC, non-CD straight up national vote count. Nationwide referendum. Like every other sane nation does.

    Someone needs to propose a solution and get the process started. It will fail, but it will give impetus to a future success.

    Full suffrage happened because women dared. Denying a woman a vote seems alien and horrible, but it was the law of the land until folks changed it.

    I will dare.

  30. Sleeping Dog says:

    @Steven L. Taylor:

    True, anything is possible, but it is a lot easier for one party to gerrymander 10 districts than 2.

  31. @Sleeping Dog: Without a doubt.

  32. @Mu Yixiao: To echo @Miguel Madeira, this is nonsense:

    Under NPVIC small rural states shouldn’t even bother voting. If you don’t live in a spike zone , your vote doesn’t matter.

    What doesn’t matter right now is a Dem vote in a heavily Rep state and a Rep vote in a heavily Dem state.

    If people only vote in elections that are competitive, why do California Republicans vote or Democrats in Mississippi?

    1
  33. James Joyner says:

    @Mu Yixiao:

    My issue with this decision is that (with the exclusion of Maine and Nebraska), the electors don’t represent the popular vote. They represent the “winner”.

    Sure. I don’t like that one bit but that’s the system. We have 50 statewide elections (with the minor deviations of Maine, Nebraska, and New Hampshire) plus DC. All but three are winner-take-all and the other three are winner-take-most. That’s been our system since we started letting people vote (around the time of Andrew Jackson’s election).

    And the NPVIC? Under this ruling, if 100% of Freedonia votes for Bob–but Sue wins the national popular vote–Freedonia’s 10 electors must vote contrary to the wishes of Fredonia’s voters. They would have to vote according to the wishes of other states.

    NPVIC is a backdoor abolition of the Electoral College. It eseentially transforms the system from 50+1 “state” elections to one “national” election by proxy. That’s the outcome you and I both prefer.

    Under NPVIC small rural states shouldn’t even bother voting. If you don’t live in a spike zone , your vote doesn’t matter.

    Under NPVIC, states wouldn’t vote at all, people would. Literally every person’s vote, whether they lived in California or Wyoming, would count exactly the same.

    Maine and Nebraska have it right. Electoral votes cast by district.

    That system would make outcomes even less representative. Congressional districts are notoriously gerrymandered to the advantage of the majority party in the state legislature. Trump would have won by a wider margin in 2016 under that system.

    I would go a bit further and say that if the state-wide popular vote is within 10 points (45/55), the Senate vote should be split.

    Okay, but if the preferred outcome is to represent the national popular vote, why go through these gymnastics. The only plausible rationale for an Electoral College to that the “states” matter in some manner beyond being just a conglomeration of individuals.

  34. Mu Yixiao says:

    @Steven L. Taylor:

    @Mu Yixiao:

    Maine and Nebraska have it right. Electoral votes cast by district.

    Only if you like a system wherein the EC can be gerrymandered.

    Huh? I’m hoping that’s sarcasm.

    The system that Maine and Nebraska have in place works best (better represents the views of the state) if the states aren’t gerrymandered.

    Gerrymandering is a serious issue that needs to be dealt with (though only a SCOTUS decision will make that happen–and we already lost that battle[1]).

    I like the electoral system over the popular vote–even though I admit it needs some serious overhauls. I have a problem where New Jersey has more say in setting federal farming laws than Wyoming, North Dakota, South Dakota, Montana, Nebraska, and Kansas–combined (with over a million votes left over)[2].

    Gerrymandering needs to be eliminated (preferably with a SCOTUS decision saying it’s unconstitutional). Districts should be set by algorithms that follow neutral rules[3]. House seats should represent (approximately) equal populations.

    And electoral votes should be cast based on districts. This would make a lot more states into “swing states”, and require candidates to address broader issues. Texas, for example, is seen as “red”–but 12 of their 38 districts voted “blue” in 2018. Florida was split 50/50.

    With elector-per-district voting, those 3 red seats in Washington, and the 3 blue ones in Virginia, suddenly come into play.

    Very few states are entirely blue or red. If candidates thought they could pull a few electors from an opposite-color state, they may start paying more attention to those states. And they may start moving towards the center. If a candidate has the opportunity to sway voters to his side–rather than firing up the extremes–we’d be looking at a different story.

    The best part: None of this requires a constitutional amendment. It’s all up to the states.


    [1] I actually know one of the plaintiffs in that case. I still have to get in touch with her to do an article for the paper.

    [2] I’m using complete population, not voting population, because I’m too lazy to look up those numbers. But you get the idea.

    [3] There are several approaches that produce similar results but have slightly different criteria

  35. @Mu Yixiao:

    Huh? I’m hoping that’s sarcasm.

    Not sarcastic at all. If you base the 435 electoral votes that would be tied to congressional districts you open up the EC to gerrymandering.

    Gerrymandering needs to be eliminated (preferably with a SCOTUS decision saying it’s unconstitutional). Districts should be set by algorithms that follow neutral rules[3]. House seats should represent (approximately) equal populations.

    Well, SCOTUS has shown no interest in dealing with gerrymandering, nor have most state legislatures.

    And even with some “neutral” formula, there are serious representational problems with single-seat districts that cannot be overcome.

    There really is not a democratically persuasive argument to use congressional districts to elect electors in the first place.

    If you want representative outcomes, use the national popular vote.

    Very few states are entirely blue or red. If candidates thought they could pull a few electors from an opposite-color state, they may start paying more attention to those states.

    Indeed, so use the national popular vote. It eliminates those problems altogether.