While the 538 electors of the Electoral College collectively determine who wins U.S. Presidential and Vice Presidential elections, each state legislature has the ability to determine how its constitutionally-mandated electoral votes (equal to its total Congressional representation) are assigned to specific candidates.
In 48 states, the state legislature currently mandates that the winner of the majority of citizen votes (known as the popular vote) receives all of the state’s electoral votes. This is known as a winner-take-all or unit rule procedure. Although how states assign votes was never debated in the constitutional convention, it became the universal practice of allocating electoral vote by the first third of the 19th century.
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Maine and Nebraska Are Different
Whether a state assigns it votes by a winner-take all system or another way can have important consequences because different vote allocation methods can produce different election results. In 1972, things started to change.
Both Maine and Nebraska allocate the electoral votes they are entitled to in a semi proportional manner. Maine’s current practice was effective with the 1972 presidential election and Nebraska’s took effect with the 1992 election
They assign two votes to the plurality winner of the state’s popular vote. These two votes represent the two electoral votes they are entitled to from their U.S. Senate delegations. The other electoral votes in these states are given to the plurality winner of the popular vote in each separate U.S. House of Representatives district.
How It Works Out
Both states have produced one split vote. In 2008, Barack Obama won one Nebraska district based around Omaha and in 2016, Donald Trump won one rural Maine district. The remaining two electoral votes in Maine and three in Nebraska went to the other party’s candidate.
According to a 2018 analysis by 270ToWin, if all 50 states would have adopted the Nebraska and Maine way of assigning electoral votes, the outcome would have been a pickup of nine votes by the Clinton ticket, but still a Trump ticket victory.
Implications For Presidential Elections
Although an improvement over winner-take-all system’s potential incongruity between the popular and electoral college vote, the Nebraska and Maine electoral vote allocations are imperfect solution for a couple of reasons.
First, the U.S. Senate is not apportioned by population. Citizens in smaller population states essentially get more than a 3 to 1 advantage over large state voters in their Electoral College representation, giving them a disproportionate say on who gets elected.
Secondly, it is only as fair as malapportioned Congressional districts. Given the widespread practice of gerrymandering (drawing districts to favor one party over another) in the states, the problem of equal voting power even within a state is not ameliorated. If you live in a “swing district”, your party might get 49.9% of the vote in the district but the whole electoral vote would still go to the winner of 50.1%. That is why we label this method as semi-proportional, at best.
Proposed Changes In The States
While many of the other 48 state legislatures have considered laws to change how their states allocate their electoral votes, none have passed. although some are still theoretically alive in committees. Given the continued attention to the matter after the 2016 election produced a winner who did not win the popular vote and the growing interest in the 2020 election, more proposals for adopting the Nebraska and Maine model are likely to emerge.
State legislators, not surprisingly, vote for and against these bills based on their calculation on how it would help or hurt their party. Because predicting how voter preferences change over time is very difficult, so is calculating how proposed changes might work over the long haul. It is much easier to uphold the status quo, especially if it benefits the majority party in power in their state.
Another way of changing things is the currently-active National Popular Vote Interstate Vote Compact. Although different than current Nebraska and Maine practices, adoption of the compact is probably the best chance for more proportional representation. It has adopted so far in a dozen states who collectively have 172 electoral votes (CA, CT, DC, HI, IL, MA, MD, NJ, NY, RI, VT, WA). The compact will take effect when it is enacted by states who have a total of additional 98 electoral votes. So far, it has been approved by legislative committees in Georgia and Missouri who have 16 and 10 electoral votes, respectively.