Is winner-take-all Electoral College voting in trouble?

The statement at issue:

“We have been documenting…what appears to be a coordinated effort by Republicans in a number of key states to change the rules for electing a president.  To change the rules so essentially Democrats running for president cannot win….Virginia Republicans are using the same maps they have gerrymandered for a permanent Republican advantage at the state level to also distribute Virginia’s Electoral College votes when it comes to voting for president….The action in Virginia is the first of its kind in the nation.  What we have been covering is Republicans making noises about doing this across the country wherever they can…not just in Virginia, but in Wisconsin and Michigan and Ohio and Pennsylvania.”

– Rachel Maddow, a liberal broadcast personality, on her MSNBC cable network broadcast on January 23.

We checked the Constitution and ...

Forty-eight states (all but Maine and Nebraska) for years have been using a system in presidential elections under which the winner of their statewide popular votes gets all of their allotted votes in the Electoral College system.  It is the closest thing to a direct popular vote method of choosing presidents, without getting rid of the Electoral College altogether.  But, under the Constitution, it seems pretty clear that the states don’t have to do it that way, or so the Supreme Court has said.

What MSNBC’s Rachel Maddow has come across is a budding effort by Republican-controlled legislatures in a number of states that often figure as “battleground states” in the presidential campaign, to switch from winner-take-all to winner-by-congressional-district in picking presidential electors.  That’s the method Maine and Nebraska now use.

What difference would it make?

Maddow makes this point: “If the system Virginia Republicans are pushing now had been in place in 2012, Barack Obama would still have received 150,000 more votes than Mitt Romney in 2012 in Virginia, but the Electoral College vote from Virginia would have been four votes for Barack Obama and nine votes for Mitt Romney.”

In an earliest broadcast on this same tactic, Maddow made the point that, if a switch to district-by-district Electoral College voting had been made for key “battleground states” in 2012, “President Obama would have finished the election nationwide with 5 million more votes than Mitt Romney, but Mitt Romney would have still won the Electoral College and won the presidency.”

Two constitutional points emerge immediately. First, the Constitution does not guarantee that presidents will be chosen by popular vote; the Electoral College is not designed that way. It still astounds even well-educated people when they are reminded that they do not vote for the president; they vote for presidential electors, who usually vote for the candidate they represent, but they are not bound to do so.

And, second, if there is no promise of a popular vote, there is no constitutional problem with the second-place finisher in that vote winning the presidency; it has happened several times – most recently, in 2000, when George W. Bush got about 543,000 fewer votes nationwide than Al Gore, but achieved victory in the Electoral College.

But the most significant constitutional point is that the Supreme Court, beginning with a decision in 1892 (in the case of McPherson v. Blacker), has said repeatedly that there is no command that the states choose their presidential electors in one way only.  The 1892 ruling, in fact, upheld a decision by the Michigan legislature to switch from a winner-take-all to a district-by-district system.  And the core principle of that decision – that it is up to the states to choose the method – was reaffirmed by the Court in its decision in Bush v. Gore.

The heart of the concern expressed by Rachel Maddow, of course, was not a constitutional one: she was making the political argument that legislatures should not frustrate the choice that a majority of the state’s voters made at the ballot box, and that doing so would result from partisan gerrymandering of congressional districts after the 2010 elections.

But suppose that the legislatures in formerly “battleground states” do succeed in switching their states to district-by-district choice of presidential electors. Could anybody sue to challenge that constitutionally?

The simple answer, and the answer that perhaps has the longest historical pedigree, seems to be no. Who can claim injury, and thus have a viable legal point, if the Constitution allows a switch to a district system? Could the popular vote winner in a state claim injury? If the popular vote winner were a Democrat, say, could that party sue, or could some individual voter who cast a ballot for the Democratic candidate claim that his or her vote didn’t count?

If partisan gerrymandering of congressional districts is not a constitutional problem on its own (and the Supreme Court has been unwilling so far to say that it is a problem), then the fact that a legislature did move to a district system explicitly to favor the nominee of one party might seem to be immune to a challenge on that ground.

So, what’s left?  The only avenue for a lawsuit against a district system may well be a variation on one that worked in 2012 in several lawsuits challenging alleged voter-suppression efforts by Republican officials.  That is a claim that election laws may not be written, or enforced, in a way that denies voters equal opportunity to vote, and to have their votes counted equally.  In those cases, the voters complaining of barriers were minority voters, but there may be a broader principle at work.

The Supreme Court, in a 1986 decision involving the exclusion of a minor party from the presidential elector ballot in Ohio, ruled that it is unconstitutional under the Fourteenth Amendment to put a burden on “the right of individuals to associate for the advancement of political beliefs.”   That hints at a right to sue, by members of a political party, to challenge a system that, in practical terms, undermines their right to collectively make a political choice.

Lawyers are creative people, and lawyers who specialize in election law have very rich legal imaginations.  Thus, it is not beyond contemplation that a lawsuit might be put together to challenge a switch to a districting system when that is done – and is proved to be so – to guarantee that one party’s nominee will prevail no matter how the statewide vote went.

True, such a claim is fairly close to a partisan gerrymandering argument.  And, of course, it would threaten the states’ broad constitutional power to choose how to pick electors. But it just might have a measure of plausibility to it.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.