States Have All The Options

Change is hard. We grow comfortable with the ordinary, accustomed to the expected. Whether it’s the same breakfast, the same route to work, or the same spot on the couch, it’s difficult to break habits. This is even true when the habits are unhealthy. Especially true, sometimes, when the unhealthy habits become seemingly requisite. And though I’m no expert, I’ve heard that admitting there’s a problem is the first step.

The States have a problem. Well, not all of them (more on that below), but most. They also can’t buck this bad habit. The habit is not that old, but it has grown so common that many (wrongly) think it’s as old as the United States. And the problem is severe – it silences American voices and let’s Washington ignore us with impunity. This is a change that needs to happen.

Here’s the problem: We think there’s only one way to elect the President. Wait, what? It seems so simple! Whether you’re from California, Texas, or Ohio, the rules have been the same. Citizens vote on (or before) Election Day. When the polls close, they tally all the votes in the State. The candidate with the most votes in the State gets all of the States electoral votes. It’s called the winner-take-all method.

This is a perfectly valid way to elect the President. I happen to think it’s got a whole lot of problems, but that doesn’t make it illegal.

But – and here’s the problem that so many States have – this is not the only way. In fact, States can choose to elect the President in almost any possible way that they seek.

The Constitution makes this perfectly clear. The relevant paragraph provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” That’s 18th Century for “let them choose!” The founders even amended this part of the Constitution in 1804, but kept the States’ power intact.

This important point has been reiterated over and over through American history. Individuals States have actually passed legislation to change how to elect the President dozens of times through U.S. history. And the Supreme Court said the States have “plenary power” (i.e., “let them choose!”) to choose how to elect the President in cases from 1892 and 2000. Anyone who believes the winner-take-all method is required – or that it was even suggested by the framers – is just plain wrong.

Some States get it – a handful understand that they can change how to elect the President. Maine and Nebraska each changed to a system called the Congressional District Method. Eleven States and the District of Columbia have passed legislation to join the National Popular Vote Interstate Compact. And a few other States like Pennsylvania and Michigan have proposed making changes, too (though none have passed).

It’s the rest with the problem. They could disagree over which method for choosing the President is best, or could fight over the benefits or harms of the existing system. They could propose legislation that awards electoral votes proportionately, or based on the winner of the national popular vote. They could follow Maine and Nebraska’s use of the District Method, or join the NPVIC, which is now only a few States away from success.

But they aren’t doing any of this. No debating. No discussions. No nothing.

And that is the habit these States need to break. The Constitution – our founding document – gives the States enormous power over the President’s election, but they’re acting like their hands are tied.

Call it a lack of political will. Call it lack of information. Call it whatever you like. The unwillingness of States to even consider other ways to elect the President is a problem. The Constitution tries very hard to limit the Federal Government’s power and increase the power of the people. Provisions throughout the document are written with these goals in mind, and the provision on how to elect the President is the same. When States have (and use!) this power, Presidential candidates have to listen. They have to be aware of the States’ interests, and accommodate their needs. It’s a political sword that States can wield to encourage Executive action, but it’s one that very few States use.

The result is that, today, we have a system where Presidential candidates care about a handful of States and completely ignore everyone else. This means the voices of hundreds of millions of Americans do not matter in the Presidential election. It does not have to be this way, and the States have the power to make it change. They just need to take that first step.

 

Jacob Canter