Changing the Rules in order to Win

The procedures for presidential elections should not be so easily manipulable by local partisans.

The recent skirmish over the way Nebraska allocates its electoral votes highlights the utter absurdity—and danger—of the rules governing the election of the most powerful office in the world, the presidency of the United States.

Nebraska is one of two states, along with Maine, that awards one of its electoral votes to the winner of the popular vote in each of its congressional districts. The rest of the states award all of their electoral votes to the winner of the popular vote statewide, a system that is currently known as “winner take all” and historically was called the “general ticket.”  (Nebraska and Maine award two of their electoral votes statewide, to correspond to the two electoral votes they have for each of their US senators. The District of Columbia, by virtue of the Twenty-third Amendment, has three electoral votes even though it’s not a state, and they are awarded based on the popular vote districtwide.)

Both the Nebraska method and winner-take-all are perfectly legal, as the U.S. Supreme Court confirmed in McPherson v. Blacker, a 1892 case, in which Michigan’s legislature decided to change from winner-take-all to the Nebraska method for that year’s election. Michigan’s legislature hoped the change would help Grover Cleveland, the Democrat, win a majority of electoral votes nationwide by splitting the state’s electoral votes. Otherwise, it feared that Benjamin Harrison, the incumbent Republican, would benefit from winner-take-all, as he had four years earlier in the state. This partisan maneuver wasn’t consequential: Cleveland ended up winning an Electoral College landslide, 277-145, and thus didn’t need the five electoral votes he won in Michigan as a result of its allocation of electoral votes on the basis of congressional districts.

A similar partisan maneuver, in the opposite direction, has been contemplated in Nebraska this year. Nebraska is a deeply red state, which under winner-take-all would award all five of its electoral votes to the Republican nominee, who presumably will be Trump. But one of its congressional districts, the Second, is sufficiently purple that it has voted blue in two recent elections, including for Biden in 2020. There is the possibility that it will do so again.

Moreover, it’s possible that this single electoral vote will make the difference in the outcome of the race. A plausible Electoral College map has Biden winning all of the so-called “rust belt” battleground states (Michigan, Pennsylvania, and Wisconsin), while Trump wins all of the “sunbelt” swing states (Arizona, Georgia, and Nevada). If the Electoral College map otherwise remains unchanged from 2020, the result would be Biden winning the narrowest of Electoral College majorities, 270-268, with Nebraska’s Second District providing the decisive vote in Biden’s favor. (Maine’s use of the same system as Nebraska in this scenario provides one of its four electoral votes for Trump, as it also did in 2020.)

This possibility has caused Trump and his supporters to urge Nebraska’s Republican-dominated (although nominally nonpartisan) legislature to switch to winner-take-all. The governor supports the move and says he’s willing to call a special session of the legislature to make the change if, but only if, there are enough votes in the legislature to enact it. Right now, it looks as if the effort can’t overcome a Democratic-led filibuster, but the issue isn’t yet entirely dead for this year.

Whether or not this partisan manipulation of the rules is successful—including whether or not it causes a 269-269 tie that sends the election to the House of Representatives, where each state has one vote regardless of population and thus where Trump likely would prevail even if the Democrats retake a majority of seats in the House—it points to the urgent need for reforming the system for presidential elections. In a previous Common Ground Democracy essay, I outlined a Top 3 system that would elect, among the three most popular candidates nationwide, whichever of the three a majority of the nation’s voters would prefer to each of the other two.  In that essay, I explained why this kind of Top 3 system would ameliorate the hyperpolarization of America’s current intensely tribalistic Red-Blue divide—and would open up the possibility of real competition from a third party, as Americans increasingly say they want.

Even if one isn’t (yet) sold on the Top-3 system, everyone of good will should perceive the imperative of eliminating the possibility for the kind of partisan manipulation contemplated in Nebraska. This same sort of behavior has cropped up in other states from time to time, as it did in Michigan in 1892, and it’s likely to do so again as long as presidential elections remain extremely competitive, as they have been so far this century. If Republicans in Virginia had managed to win control of the state legislature last year, they might have been tempted to move to Nebraska’s method in order to split the electoral votes in what has become a reliably blue state in presidential elections. Similar moves might seem attractive to one party or the other in advance of 2028 or other future campaigns.

Electing the president on the basis of a nationwide popular vote, even without adopting the specific Top-3 method, would solve the problem of state-by-state partisan manipulation of the electoral rules. But as I’ve explained elsewhere, adopting a nationwide popular vote for presidential elections should not be undertaken without at least solving the separate “spoiler” problem that exists if only a plurality rather than majority of votes suffices to win. This year’s election, with RFK, Jr. as a candidate, should make abundantly clear the huge risks associated with the “spoiler” problem. I will have more to say on the specific topic of the “spoiler” problem as this year unfolds, but for now it suffices to note that adopting a national popular vote using a plurality-winner rule does not solve—and arguably exacerbates—the “spoiler” problem: RFK, Jr. is more likely to gain a larger share of votes in California than in battleground states, and so potentially would be more of a risk of spoiling the election if California’s votes determined the nationwide popular vote outcome.

But one need not desire any form of national popular vote to realize that the existing system is seriously deficient because of its susceptibility to partisan distortions. Even if one favors retaining the basic Electoral College structure, where each state has the same number of electoral votes as senators and representatives combined, partisan state legislatures should not have the power to alter the allocation of their electoral votes year-by-year in order to maximize the advantage for their party’s candidate.

It would be possible to create a stable electoral college system by requiring each state to allocate their electoral votes in the same way. Of course, there still would be the question of which particular way each state should be required to allocate their electoral votes: winner-take-all, or the Nebraska method, or perhaps some other principle of proportionality? One could even contemplate the possibility of a “proportional Top-3” system, in which each state’s electoral votes were allocated proportionally among the three candidates receiving the most popular votes in the state (with proportionality calculated precisely using fractions of electoral votes), and if no candidate received a majority of electoral votes, then there would be nationwide Top-3 runoff among the three candidates receiving the most electoral votes.

There is the danger that no reform of the presidential election system occurs because reformers are divided among themselves over which specific reform to adopt. For this reason, perhaps it is best to adopt the simplest possibility constitutional amendment permitting Congress to enact some sort of nationally uniform method.

While there would be no guarantee that Congress would be immune from partisan motives underlying the nationally uniform system it enacted, at least no single state could mess up the entire system for electing the nation’s president based on parochial partisanship.