In the last five elections, two presidents have won the Electoral College but lost the popular vote. The first, President Bush, lost the popular vote to Al Gore by just over 500,000 votes. President Trump's loss was much more dramatic: nearly 3 million.
The election reignited a debate about the Electoral College itself. That debate is a continued tug-of-war between a commitment to federalism on one side and ideas of democratic unity on the other. The Electoral College is outlined in Article II Section I of the Constitution.
But there is another heated debate within this context that is, perhaps, more important. It centers around state-based winner-take-all voting rules.
Why is it important?
If you vote for the U.S. president anywhere but Maine or Nebraska, your vote is counted in a winner-take-all system. Whichever candidate wins the most votes in your state earns all of your state's electoral votes—one vote for each House representative plus two for your Senators.
While those two extra electoral votes do benefit small states proportionately more than big ones, the winner-take-all rules are the real reason for "swing states"—states that will likely be won by a small vote margin. But no matter the margin, that state's electoral votes will all go to the winning candidate. In 2016, President Trump won swing states Michigan, Wisconsin, and Pennsylvania by margins of less than 2% and earned 46 electoral votes.
How a state selects it's electors is entirely up to that state. In other words, winner-take-all rules are state statutes not prescribed in the Constitution. In fact, some argue winner-take all is unconstitutional.
Are winner-take-all rules constitutional?
The Constitution gives states the authority to decide how they choose their representatives in the Electoral College. But the states can't do it any way they want if their choice violates other parts of the Constitution, like the Equal Protection Clause. Winner-take-all rules violate this part of the Constitution and therefore should not be allowed in state voting systems.
State legislatures could decide to select their electors themselves with no popular vote at all. But they cannot hold an election that is not consistent with other constitutional principles—namely, Equal Protection principles. States can't require that their representatives be only men or only white people, for example. In Williams v. Rhodes, the Supreme Court ruled that "no State can pass a law regulating elections that violates the Fourteenth Amendment’s command that 'No State shall deny to any person the equal protection of the laws.'"
Winner-take-all systems deprive those who vote for the minority candidate of the power of their vote.
The Constitution specifically empowers state legislatures to determine how electors will be chosen.
Article II Section I reads, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors."
There is no language in the Constitution barring states from choosing a winner-take-all method—a method that obviously does not involve any odious gender or racial discrimination. States are free to choose this system, and 48 states have.
In addition, numerous elections around the country are winner-take-all—the election for President, even if based on popular vote, would be an example. But governors, mayors, and innumerable other elected officials are elected based on the idea that the winner of the election takes the office in question. Even when electing members of a single body, like a city council, if the election is done "at large," it is equivalent to a winner-take-all system.
We could argue that there is another system better than the winner-take-all system but, as the U.S. Constitution says, it is up to the states to decide.
- Article II Section I of the Constitution
- "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."
- Brookings with more detail on swing states
- "Thirty-three states have voted for the same party in the past five presidential elections, and 40 of the 50 states have voted for the same party since 2000. Predictability like this means that many states can essentially be written off, far in advance of Election Day, as a sure win by one or the other candidate. The remaining battleground states, or swing states, are the focus of presidential campaigns. Seventy-five percent or more of a presidential candidate’s spending occurs in these key states."
- The Washington Post on which swing states mattered in 2016
- "Of the more than 120 million votes cast in the 2016 election, 107,000 votes in three states effectively decided the election.