Two states don’t use “winner-take-all” when voting for presidential electors: Maine and Nebraska. The Constitution gives state legislatures the power to figure out how to choose their electors, and states have used several different methods. Maine and Nebraska legislators have determined that their states benefit from the attention that comes from each one having a swing congressional district. They choose one presidential elector from each district and the remaining two electors statewide.
Predictably, this year a few Trump supporters in Nebraska demanded an end to this system and return to winner-take-all. It would almost certainly add one more electoral vote to Trump’s tally. It’s also ridiculous, as I explained in a recent article for The Hill: “it doesn’t take Sun Tzu to understand that, if Nebraska’s Republican-controlled Legislature goes along with this, Maine’s Democrat-controlled Legislature will likely do the same to cancel it out.” Indeed, Maine leaders have promised to do so.
Politics is always changing and evolving. When one side acts, the other reacts. This is why we must have fixed and consistent rules. This is true in any kind of contest, especially when competition is fierce and the stakes are high. Every presidential election since the beginning of our nation has used a state-by-state process to elect the president. Some of the winners were better than others, sure, but the system overall has worked. In the last hundred years, Democrats and Republicans have won an equal number of those contests.
In my piece in The Hill, I describe why we should be skeptical of proposals like NPV and supportive of the Constitution’s state election process.
First, it’s unseemly to change election rules for no better reason than partisan advantage. That’s true in Nebraska, Maine, and everywhere else.
Second, the Electoral College has built-in protections that benefit Americans regardless of political party. The state-by-state process makes it essentially impossible for a candidate to win with a small plurality or support in just one region of our vast, diverse nation. These are the same reasons that explain why most large democracies also have two-step elections at the national level.
Third, the current process has helped to incorporate minority voices into American politics. This used to be common knowledge. A young Sen. John F. Kennedy defended the Electoral College against a proposed constitutional amendment in 1959. A generation later, civil rights leaders like Vernon Jordan did the same thing. They recognized that the Electoral College was forcing the Democratic Party to pay more attention to the interests of Black Americans and other minorities. The same is evident today, including in Republican appeals to Hispanic voters.
Finally, the National Popular Vote Interstate Compact would lead to a constitutional crisis worse than anything experienced after the 2020 election. All three of the law professors who thought up the idea have expressed concerns about whether the compact would really work. As currently drafted, it ignores the fact that state election laws are all different, and it provides no guidance for recounts, disagreements among the states, or other possible conflicts.
The NPV compact is a mess, and when Democrats support it, we surrender the moral high ground. Instead of looking for ways to manipulate the Constitution’s rules, we should defend those rules and build coalitions across the country that ensure we win future elections.
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