Editorial: Time to get rid of ‘winner take all’

Published: 12/15/2016 12:05:10 AM

Americans are losing faith in the sanctity of elections and for good reason. Russian hacking aside (more about that in an editorial to come), the belief that the game is rigged is growing. That’s bad for, and perhaps even fatal to, democracy. Part of the problem is a legacy of history, of organized attempts to discourage the vote of some portions of the electorate, and of course, the effect of money on politics.

But election law and tradition are causing part of the problem, so the rules need to be clarified and probably changed, and soon.

Nearly half of the American electorate fails to vote in presidential elections. Many decline to participate because they feel that “their vote won’t matter.” Sadly, in a powerful way, that’s true. Thanks to the historical oddity of the Electoral College, a creation designed to appease slave-owning states whose blacks counted as three-fifths of a person for congressional purposes, voters in big states such as California, Texas and New York are disenfranchised.

There are a total of 538 electors, one for each member of a state’s congressional delegation. New Hampshire has four electors; Vermont and Wyoming, the state with the smallest population, have three. Each Wyoming elector represents fewer than 200,000 people; in California, each of its 55 electors represents 673,000 people. Unfair, right? But that’s just the start. The winner-take-all method means that the supporters of the losing candidate, even if the difference was just one vote, will have no say at all come Monday when electors gather in state capitals to cast their ballots. Their votes won’t count.

We agree with those who argue that it’s time for states to end the winner-take-all method of allocating electors.

The Electoral College can’t be changed or abolished without a constitutional amendment, which would be nearly impossible to pass. But nothing in the Constitution requires a state to allocate all of its electoral votes to the winner of the popular vote. In fact, Maine and Nebraska split their electoral votes based on how each electoral district voted. If the goal is, as Harvard constitutional law professor Lawrence Lessig and others argue, to come as close as possible to the 14th Amendment’s “one person, one vote” mandate, “winner take all” has to go.

Lessig believes that the attorneys general in states with millions of voters disenfranchised by “winner take all,” especially California, Texas and New York, should immediately sue over its constitutionality. Yes, if it applied to this election it would change the outcome. But that’s exactly what happened in 2000 when, on a 14th Amendment argument, Republicans challenged George W. Bush’s loss and won.

What the fate of such a suit would be in the current Supreme Court is anybody’s guess. The answer, of course, could hinge on how partisan the court turns out to be, but it’s safe to say that if President-elect Trump appoints, and the Senate confirms, a replacement for the late Justice Antonin Scalia, the suit would probably be doomed.

No matter what the outcome, a suit would help clarify the rules going forward. Most voters, we believe, understand that a presidential candidate can win the popular vote – Hillary Clinton received nearly 3 million more votes than Trump – and lose the election, but they don’t like it.

The Electoral College, since it benefits small states, isn’t going to be eliminated, but banning the winner-take-all allocation of electors will make elections much fairer and more democratic.

It’s time to fire the guns of law.

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