“This is the Way”— A Practical Roadmap Towards Constitutional Electoral College and Redistricting Reform.

By Michael Wein

Following last week’s election results, with Pennsylvania and Arizona decided and declared by all media outlets, President-Elect Joseph Biden and Vice President-Elect Kamala Harris’ will be Inaugurated on January 20, 2021.  Considering the divisiveness of the 2020 election, it is unsurprising there has been significant online discussion of the present Electoral College system.   This is also unsurprising, as two of the last six Presidential elections have gone to the candidate who did not win the popular vote nationwide. Two pending Federal Circuit Court of Appeals cases are strong Certiorari candidates to the Supreme Court, tackling Electoral College reform not through a transition to popular vote, but rather, a more accurate transition to the traditional Congressional District allocation method approved by Framers such as James Madison, and currently employed only in Maine and Nebraska.

As this gradual transition,  is  fully Constitutional on a state-by-state level, it should be favored compared with the arduous Constitutional amendment  process requiring ratification by three-fourths of all States, a prerequisite to do away with the entire Electoral College, that would be itself divisive and quite likely unconstitutional if any short-cuts are taken comparable to the “National Popular Vote Interstate Compact” (NPVIC).  These cases of Baten in the Fourth Circuit and Rodriguez in the Ninth Circuit, both finalized in the past two months for consideration to the United States Supreme Court later this year, should be closely considered.  Though on some level an academic exercise—if done correctly on a state level basis, the method espoused in these cases can reduce divisiveness for Americans for future elections, with few negatives.  Along these lines, in combination with non-partisan redistricting reform, Maryland is well suited to begin this trend, having last joined this Method in 1836, but reasonably suited to become a third State using the Congressional District method, joining Maine and Nebraska.

Recent Background from the Redistricting Cases of Maryland v. Benisek, and Rucho v. Common Cause

In 2019 the United States Supreme Court, after years of having the legal issue on the Constitutionality of “ultra-partisan” Redistricting before the federal courts, finally made a decision. This was from two cases, the Rucho v. Common Cause case from North Carolina, combined with Benisek v. Maryland, both involving hyper-partisan redistricting, by both political parties. Thereafter, the precedent from the 5-4 decisions in Rucho and Benisek were partisan gerrymanders “are a political question that will not be addressed by the Federal Courts.”  

In my piece for this Blog on August 9, 2019,  I discussed why in my opinion, this was incorrect, for historical and other present policy reasons.  (The legal and policy concerns were also discussed by other Blog contributors and elsewhere.)  Specifically, the article discussed the antecedent of a 100+ year old Congressional statute to confirm there are (or at least were) justiciability standards[i], which culminated in the Wood v. Broom, 287 U.S. 1 (1932) decision. [ii]  While Wood perspicuously did not decide the merits of justiciability due to the Congressional statute no longer being effective, nevertheless the “proof” the statutory provision was previously enacted, was a Congressional acknowledgement of  existing judicial standards capable of being applied, while also consistent with separation of powers. 

These historical standards, sought and passed during the time of the early 1900s of Senator Robert LaFolletteand others, sought fairness to allow direct votes of Senators and women the right to vote.  This resulted in the 17th and 19th Amendments, but also intended to legislatively include reasonable protections against extreme partisan gerrymandering, including compactness standards.  This dinosaur remains, as the most self-interested actions that legislators can achieve,[iii] done today with computer precision so that legislators “pick” their voters, not vice versa, a fact acknowledged by Justice Kagan in her dissent “[p]artisan gerrymandering turns it the other way around. By that mechanism, politicians can cherry-pick voters to ensure their reelection. And the power becomes, as Madison put it, “in the Government over the people.” 4 Annals of Cong. 934.” Rucho v. Common Cause, at 47.

Still, precedent is precedent, and thus the Blog post ended with a pledge of:

“Part Two of this Article will focus on what Chief Justice Roberts agreed [in the Majority Opinion] at Slip. Op. 33 in Rucho are the different “avenue[s] for reform established by the Framers, and used by Congress in the past.”As noted supra, the legislative solution is extremely unlikely to be passed in Congress.  […]  However, a state by state approach has more promise at reform, and similar to a century ago, this can be combined with reasonable and moderate reforms, such as to the Electoral College, while maintaining the overall “federalism” aspects of that institution.”  [Emphasis Added]

So did I forget to do Part Two?  Not exactly, though pandemics can pose a distraction.   After the Part One of the Post published, the Supreme Court granted Certiorari on January 17, 2020, in what eventually became the Chiafalo v. Washinton decision, on the constitutionality of States penalizing and not enforcing laws against “faithless electors.”  See Chiafalo v. Washington, Cert. Granted, 140 S. Ct. 918 (2020), 140 S.Ct. 2316 (2020). 

Arguments were set earlier, but delayed due to the COVID pandemic, and remotely took place May 13, 2020.  The Supreme Court then issued a 7-2 decision on July 6, 2020, by Justice Elena Kagan, with Justices Thomas and Gorsuch concurring in the judgment.   Thus, the issue of Electoral College was dealt with by the Supreme Court, for arguably the first time since the decision of Ray v. Blair, 343 U.S. 214 (1952).[iv]  Since this grant of Certiorari, would likely tie directly with the planned discussion on “how” Electoral College reform can and should work in conjunction with redistricting reform via the “state-by-state” method consistent with the “Framers and used by Congress in the past,” this Part Two is now “ripe” for fuller discussion.

The Holdings in Chiafalo v. Washington, 140 S.Ct. 2316 (Dec. July 6, 2020).

The text of the Constitution provided the primary source for the Supreme Court’s decision in Chiafalo.

Article II, §1, cl. 2 says:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

Justice Kagan began by stating nothing in the Constitution, specifically prohibits States from enacting penalties against “Faithless Electors.”  As part of the Chiafalo decision, Justice Kagan did a deep dive on the Constitutional establishment of the Electoral College, noting “[o]ur Constitution’s method of picking Presidents emerged from an eleventh-hour compromise. The issue, one delegate to the Convention remarked, was “the most difficult of all [that] we have had to decide.” 2 Records of the Federal Convention of 1787, p. 501 (M. Farrand rev. 1966) (Farrand).”  Slip Op. at 2.    

The main issue for the Supreme Court in Chiafalo, was on the actual text of the Constitutional enactment, unlike other weighty Constitutional discussions analyzable from contemporaneous sources, were remarkably threadbare on the “powers” afforded individual electors.   No discussions specifically are located from reviewing the Federalist Papers written by future Supreme Court Chief Justice John Jay, future President James Madison, or our most modern and popular Founder and Framer, Alexander Hamilton.  However, there seemed to be acknowledged agreement in the Federalist papers on the general “hybrid” nature of system as discussed at length by Madison, and recounted recently by Judge Paul Niemeyer in the Baten 4th Circuit Opinion, infra, working its way to the Supreme Court.[v]  

So what happened to justify the Supreme Court’s interest (in what’s been mostly an academic issue discussed in Constitutional law class) after over 200 years?  Well, according to the Supreme Court, a few Electors hoped to come to an agreement with other Electors, to swap enough votes, so there was a different outcome from the Presidential race in 2016.

“This case involves three Washington electors who violated their pledges in the 2016 presidential election. That year, Washington’s voters chose Hillary Clinton over Donald Trump for President. The State thus appointed as its electors the nominees of the Washington State Democratic Party. Among those Democratic electors were petitioners Peter Chiafalo, Levi Guerra, and Esther John (the Electors). All three pledged to support Hillary Clinton in the Electoral College. But as that vote approached, they decided to cast their ballots for someone else. The three hoped they could encourage other electors—particularly those from States Donald Trump had carried—to follow their example. The idea was to deprive him of a majority of electoral votes and throw the election into the House of Representatives. So the three Electors voted for Colin Powell for President. But their effort failed. Only seven electors —across the Nation cast faithless votes—the most in a century, but well short of the goal. Candidate Trump became President Trump. And, more to the point here, the State fined the Electors $1,000 apiece for breaking their pledges to support the same candidate its voters had.” 

Slip. Op. at pg. 6-7.

Importantly and as discussed further, the Supreme Court did not address a different but corollary public policy concern of today’s Electoral College system, that has been under the radar throughout recent presidential elections. Namely—not all states have a “Winner-Take-All” (WTA) system of the manner that the State directs for Electors to the Electoral College and that perhaps more should. As noted in Chiafalo,

“Maine and Nebraska (which, for simplicity’s sake, we will ignore after this footnote) developed a more complicated system in which two electors go to the winner of the statewide vote and one goes to the winner of each.”  

Slip Op. at 4, ftnt.1 (Chiafalo).  [Emphasis Added]

The Past and Present Electoral Vote Allocations Systems of “Winner-Take-All” in Effect in 48 States, versus the Congressional District Method, Only in Effect Today in Maine and Nebraska, After Maryland Last Used it in 1836. 

It’s not clear if the Supreme Court, by relegating the issue to a footnote, may have wanted to await another day, to explain Maine and Nebraska’s systems, while the outlier today, were not always an outlier, and thus the footnote is a bit of a misnomer.   The “Congressional District Method” (CDM) of Maine and Nebraska, was really intended to be default method of “hybrid” selection in our Nation’s history, and more idealistic towards the goals of the Framers and Founders.  Later on, for reasons that were temporary and/or are no longer valid historically, the default appears to have changed. Reasons for this include (1) Thomas Jefferson’s desire in 1800 for Virginia to become “Winner-Take-All,” to avoid a repeat of the narrow 71 to 68 Electoral College loss in 1796  to John Adams as the Second American President  (Jefferson  succeeded in 1800, barely, by winning the House of Representatives on a tie Electoral College vote with Aaron Burr), (2) self-interested goals traceable to the historical discrimination that was meant to be divisive at a time when citizenry as part of a particular State, was primary in almost all aspects of daily life, and (3) the States, primarily  in the 19th Century, began competitively transitioning to WTA, similar to the worry that is invoked in modern political science game theory and prisoner’s dilemma strategies.[vi] 

Since the 1960’s, with new Supreme Court jurisprudence on the Equal Protection Clause, and the enactment of the Equal Rights Act, there has been a modest shift back from WTA with Maine and Nebraska adopting CDA.   As noted in an Original Jurisdiction Supreme Court filing in 1966, Delaware  sought to find the WTA unconstitutional,  and noting how the “allocation” of Electoral College votes, had perhaps wrongly, shifted to WTA, with “the district method system disappear[ing] in 1836 when Maryland abandoned it.”  Id. at pg. 7.[vii]   Historically speaking, other States including Maryland, had the same system, of Electors being awarded to the winner of the Congressional District on top of the State-wide winner, with two Electors for the State-wide winner which equates to the Senatorial representation. Thus, the modern Electoral College, totals 538, [viii] equivalent to the 435 members of the House of Representatives, 100 Senators, and 3 for the District of Columbia under the 23rd Amendment.  All States and the District of Columbia, today, award these under a WTA system, with the exceptions of the possible “split” Electoral College votes from  Maine in use since 1972 and Nebraska, in use since 1992.

With the recent case of Chiafalo, the “State by State” alternative, directly alluded to by Chief Justice Roberts in the redistricting/gerrymandering context of Rucho and Benisek,  though not explained directly in Chiafalo[ix] has renewed focus for the next four years, as the Electoral College system is going to be debated, and all options should have a fair understanding and hearing.   Just yesterday, for example, the Washington Post Editorial Board called for an abolishment of the entire Electoral College system, yet never discussed in their opinion, other alternatives, or gave specifics on how it would “achieve” a replacement for today’s Electoral College.

This alternative is capable of reform by the individual State Legislatures adopting it, and does not require Federal Constitutional Amendment.  It also is on its face, non-partisan, particularly if done with some base agreement that it is for the collective American good, while further respectful of (1) the preferential desire that the “popular vote” winner should much more accurately be President,[x] while (2)  also respectful of State Sovereignty, and the role that has played to create and mold a livable Constitution, that has been in effect for greater than 230 years.  It’s quite better than “Winner-Take-All” for most States today, and does not pose the inherent Constitutional qualms that Popular Vote nationwide “Compacts” would have, which would increase divisiveness between voters in different States, without an outer bound limitation, other than the Supreme Court ruling on its Constitutionality. [xi]

As noted in Chiafalo, Nebraska and Maine are presently the only states that do not have a “Winner-Take-All” (“WTA”) system.   Eight (8) States have three electoral votes: Alaska, Delaware, District of Columbia (a unique territory, that wrongly is denied legislative representation), Montana, North Dakota, South Dakota, Vermont, and Wyoming, and thus as of the 2010 redistricting, will necessarily be WTA due to mathematically, having only one House member and two Senators.  However, 40 more States, can potentially adopt a more “accurate” assessment of both the State and the United States’ electorate. 

This would broaden the interest as well, for future Presidential candidates, to not take for granted some States versus others, simply based on a cold calculation as to which American states are potentially “purple” and swing states.  Even a largely populated and overwhelmingly “Blue” State (such as California), or “Red” State (such as usually Texas), made with proper redistricting reform enacted, would have a dozen or so number of persuadable Congressional districts, to help ensure that all (or at least most) Americans are the audience, while maintaining the Democratic-Republic form of Government that is in the United States’ Constitution.[xii]    

By focusing more narrowly on Congressional districts, with a “bonus” of 2 Electoral Votes per State, it is more accurate to allow for Electors, to also be based on smaller subsets of Congressional Districts.  So for example, California, (except for fundraising and as the home of Vice President-Elect Kamala Harris), could be virtually ignored by Presidential candidates in 2020, as far as vote tallies are concerned.  However, with 55 Electoral votes, reasonable redistricting and a lack of hyper-partisan gerrymandering, (something that California does have to a degree, though most States do not presently have ) a dozen or so Congressional seats would be competitive for Electoral College votes, and thus, all media outlets, and all citizens in California would, once again, become part of the “audience” of the United States President in a general election.  This was what Hamilton and certainly Madison, envisioned in a “hybrid” system of the Electoral College.

The Fourth Circuit’s Recent Decision in Baten v. McMaster, 967 F.3d 345 (4th Cir., Dec. July 27, 2020),Mandate issued Sept. 8, 2020), and Similar Discussions in the First, Fifth, and Ninth Circuits, Confirms the Historicity of Presidential Electors Being Partially Decided by Congressional District..

Post-Chiafalo, it should be noted that a well-financed effort was discovered, seeking Federal Court review, that at least historical speaking, lays out many of the same arguments as this piece. This comes in the form of the effort recently made to the Fourth, Ninth, First and Fifth Circuits, by a number of law firms, including David Boies’ Firm.  (Mr. Boies is a well-known appellate practitioner who previously represented Al Gore, in the Bush v. Gore Supreme Court decision.)   

These cases include:

  1. Baten v. McMaster, 967 F.3d 345 (4th Cir., Amended Dec. July 27, 2020),  request for Rehearing en banc, denied Sept. 1, 2020 and Mandate Issued Sept. 8, 2020; 
  2. Lyman v. Baker, 954 F.3d 351 (1st Cir., Dec. March 31, 2020); 
  3. League of United Latin Am. Citizens v. Abbott, 951 F.3d 311 (5th Cir., Dec. Feb. 26, 2020), and most recently;
  4. Rodriguez v. Newsom, 974 F.3d 998 (9th Cir., Dec. Sept. 8. 2020, and Mandate Issued Sept. 30, 2020.

Though all the cases discuss issues with somewhat different academical focuses by the authoring Circuit Court judge, the Fourth Circuit’s decision, in Baten v. McMaster, 967 F.3d 345 (4th Cir. 2020), was the only divided Circuit decision.  Baten had Judge Paul Niemeyer writing the Majority opinion joined by Judge Floyd, and Judge Wynn in dissent.  This was in the posture of a “Motion to Dismiss.”  The case arose from South Carolina, and sought to challenge the method the State awards the nine (9) Electors to the plurality victor of the state-wide vote.[xiii]  Judge Wynn in dissent, felt that there had been sufficient evidence of the lack of equal representation, to have a further factual record adopted, including that a number of voters in the minority in South Carolina, were de facto disenfranchised by the “Winner-Take-All” method now in effect in 40 of the 42 States that have sufficient population totals to adopt a more accurate allocation system through the Electoral College, symbiotic to a State’s actual popular vote.   

While the Court found there to be standing, they noted there was no legal error in dismissing the case (arguments were presented on Equal Protection Clause, First Amendment, and the 1965 Voters Rights’ Act arguments). This was because the District Court’s decision was legally correct, as premised mostly upon previous Supreme Court decisions of: (1)  McPherson v. Blacker, 146 U.S. 1 (1892), with (2) discussions on the precedential impact of the 1969 Summary Affirmance by the Supreme Court of  the 3-judge panel in Williams v. Virginia State Bd. of Elections, 288 F. Supp. 622, 628 (E.D. Va. 1968), aff’d, 393 U.S. 320, 89 S. Ct. 555 (1969), as well as (3) the literal reading of the “Elector Clause” repeated supra, of the United States Constitution.[xiv]

The 1892 decision of McPherson, as noted in Judge Niemeyer’s thorough discussion of the previous challenges against  WTA appears to semi-ironically note the opposite method the early States had adopted, including discussions in Congress at the time of the United States’ Centennial, to mandate in favor of the “Electoral District” method now only adopted by Maine and Nebraska. Thus the Supreme Court, found the WTA method not unconstitutional as noted in McPherson, and, which discussed Maryland’s history on the subject from the 1795 Act, that appears to be a “pure” District method, rather than the Hybrid method employed today in Maine and Nebraska.

“ Sixteen states took part in the third presidential election, Tennessee having been admitted June 1, 1796. In nine states the electors were appointed by the legislatures, and in Pennsylvania and New Hampshire by popular vote for a general ticket. Virginia, North Carolina, and Maryland elected by districts. The Maryland law of December 24, 1795, was entitled ‘An act to alter the mode of electing electors,’ and provided for dividing the state into ten districts, each of which districts should ‘elect and appoint one person, being a resident of the said district, as an elector.’ Laws Md. 1795, c. 73.

[…]

The 28th of May, 1874, a report was made by Senator Morton, chairman of the senate committee on privileges and elections, recommending an amendment dividing the states into electoral districts, and that the majority of the popular vote of each district should give the candidate one presidential vote, but this also failed to obtain action. In this report it was said: ‘The appointment of these electors is thus placed absolutely and wholly with the legislatures of the several states. They may be chosen by the legislature, or the legislature may provide that they shall be elected by the people of the state at large, or in districts, as are members of congress, which was the case formerly in many states; and it is not doubt competent for the legislature to authorize the governor, or the supreme court of the state, or any other agent of its will, to appoint these electors.”   [Emphasis Added]

Baten v. McMaster, 967 F.3d 345, 353 (4th Cir. 2020), as amended (July 27, 2020). (quoting McPherson v. Blacker, 146 U.S. 1, 31, 34–35, 13 S. Ct. 3, 9, 10, 36 L. Ed. 869 (1892)).

Similarly, in 1969, the Summary Affirmance of Virginia’s Electoral system (coming after the expansion of the nascent voting rights cases incorporating the Equal Protection Clause, like Baker v. Carr, 369 U.S. 186 (1962) as well as the 1965 Voting Rights Act (VRA)), was discussed for the current precedential value. The Federal Court for the Eastern Division of Virginia, in a 3-judge panel, felt that Virginia’s tactic of “maximiz[ing]” its influence was a reasonable choice,[xv] even though this now, only logically applies to the about 10-12 “swing states” in contention in most close Presidential elections.

“Furthermore, adoption of the general election system in Virginia is grounded on what has historically been deemed to her best interests in the workings of the electoral college. The legislature of the Commonwealth had the choice of appointing electors in a manner which will fairly reflect the popular vote but thereby weaken the potential impact of Virginia as a State in the nationwide counting of electoral ballots, or to allow the majority to rule and thereby maximize the impact of Virginia’s 12 electoral votes in the electoral college tally. The latter course was taken, and we cannot say unwisely.”

Williams v. Virginia State Bd. of Elections, 288 F. Supp. 622, 628 (E.D. Va. 1968), aff’d, 393 U.S. 320, 89 S. Ct. 555, 21 L. Ed. 2d 517 (1969).

Judge Wynn in Dissent, however, noted that the issue was quite important, even while Judge Niemeyer explained in affirmance, the District method was the preferred method of the Framers of allocation of Electors by States.  However, for those born certainly after 1969 and Williams, and the advent of sophisticated Electoral votes tabulators, it might seem odd that what is now arguably “novel” for Nebraska and Maine, in reality, the District method was the preferred method under the precepts of the Constitution, for an Electoral College number being calculated in part or whole, as a combination of the number of Legislative representatives in the House and Senate, and the State’s acting accordingly, in harmoniously allocating based on the same calculation premise. 

Thus, what is being advocated in the Four Circuit Court of Appeals, to somewhat by default adopt Nebraska and Maine’s method, is not “novel” at all, from a policy perspective or American historical prospective.  It may be “novel” from a Constitutional perspective, in declaring WTA “unconstitutional,” (and Delaware’s effort in 1966 being significantly premature especially when the ink had barely dried on Baker v. Carr and the VRA).  CDA is arguably fairer and more logical today than ever before, and was historically relevant, even amongst the most austere Framers and Founders.   The question of whether the “undemocratic process” violates the Constitution and/or Statutory provisions, is what would be argued to the Supreme Court.   As stated by Judge Wynn,

“[…]Plaintiffs deserve more than this short shrift dismissal of their claims. Viewing Plaintiffs’ allegations with an open mind and accepting them as true, as we are required to do, Plaintiffs have stated plausible violations of the First and Fourteenth Amendments and the Voting Rights Act. In essence, they deserve, at least, an opportunity to be heard. With great respect for the differing view of my colleagues, I must dissent.

Having said that, the majority opinion must not be read as deterring future plaintiffs from questioning longstanding election practices that run counter to this country’s foundational principles of democracy. At best, the majority opinion reflects a limited view of the judiciary’s role in addressing fairness in elections. Yet, the Electoral College itself is an undemocratic process. And states like South Carolina exacerbate its undemocratic aspects by allocating all of their presidential electors to the state-wide popular vote winner. 

This is not a question of partisanship—South Carolina discards votes for Democratic presidential candidates, but other states discard votes for Republican presidential candidates. This is a question of the openness and fairness of the winner-take-all method of selecting presidential electors for the Electoral College.”  [Emphasis Added]

Baten v. McMaster, 967 F.3d 345, 361–62 (4th Cir. 2020), as amended (July 27, 2020)(J. Wynn, Dissenting).

These four cases are transparently outlined in a public strategy memo by Equal Citizens, a non-profit group headed by Harvard Law Professor Lawrence Lessig.   Based on the memo, (and certainly the Reported decisions from the Circuits, and especially the split decision in  the Fourth Circuit), this strongly suggests that Certiorari will be sought from the Fourth Circuit’s case from South Carolina, and quite probably the Ninth Circuit’s case from California, in the coming 2 months.  That may pose a reasonable compliment to the strategy employed in the Chiafalo case, which involved a “Certworthy” argument with a split between the Washington Supreme Court and the Tenth Circuit’s case from Colorado. It is also consistent with the bipartisan Certiorari grants in Rucho (from a Republican-led redistricting in North Carolina) and Benisek (from a Democratic-led redistricting in Maryland).

While ultimately Chiafalo was not successful, sometimes, it is important to get clarity from the Supreme Court, as Professor Lessig noted in a statement following the decision he argued at the Supreme Court as “regardless of the outcome, it was critical to resolve this question before it created a constitutional crisis.  […] Obviously, we don’t believe the Court has interpreted the constitution correctly. But we are happy that we have achieved our primary objective — this uncertainty [on Faithless Electors being constitutionally penalized] has been removed. That is progress.”  Thus, it appears this arguably more important issue in Baten, is Round Two of Chiafalo.  Whether the Supreme Court will agree, and what position the Solicitor General’s office in a Biden administration will take (when ready for Supreme Court review, after 12 noon on January 20, 2021), remains to be seen.

The Supreme Court Should Consider the Strong Certiorari Candidate of Baten, with Maryland Well Suited in the Future, to Have a Non-Partisan Commission that Jointly Recommends Redistricting and Electoral College Reform in Accord with Benisek, Chiafalo, and Over 200 Years Historicalal Precedent.

So it appears that the Supreme Court has a strong “Certiorari Candidate” on the horizon, to better explain how the Electoral College functions, and the role amongst the allocation method may still again have, for States.  Certiorari is still difficult in any case for Certiorari to be granted, but it is a fair possibility.  Let’s also assume that the Supreme Court, grants Certiorari and decides the merit of the matter.  The Supreme Court, then, while not endorsing “Winner-Take-All” as preferred, nominally finds it Constitutional based in part on what’s been held previously in 1892’s McPherson.  Yet, by granting Certiorari, the Supreme Court provides renewed academic and policy examination of what allocation method States can and should adopt, of “Winner-Take-All” versus the Congressional District method. And let us suppose that a third State—Maryland for instance, were to consider adopting a Congressional District Electoral College reform, such as suggested by Baten’s historical retrospective by Judge Niemeyer in the Majority, and Judge Wynn’s Minority Opinion. That would work, right? 

The answer is importantly in practice—no, not by itself.  The current States of Maine (4 electoral votes) and Nebraska (5 electoral votes), are hardly the most brave candidates to perceive that they regularly run the “risk” of turning over Electoral votes to another party, differing from the Statewide vote, or that mathematically it would change the nationwide Electoral College vote tallies. (Though in 2020, both Nebraska 2nd and Maine 2nd, did vote for the opposite Electoral College Vote than the Statewide champion, and thus it did have an impact.) [xvi]  For one, as discussed supra, there are eight jurisdictions, that by definition have three Electoral College votes, and so will remain “Winner-Take-All.”  This mathematical tendency affects the states that are slightly above three votes, the greatest.   That said, it’s obviously an improvement and provides a legitimate chance of changing the mathematics of the Electoral College board, to allow more competitiveness to affect more than the present 10 to 12 “swing” states in the United States, but will likely provide closer to 35 States with an “Electoral College” incentive for future presidential candidates.  That will be helpful to a much larger swath of Americans, who want a President to be their “audience” when it comes time to actually vote for President, and likewise, accountability for the current office-holder who is President.

Maryland, on the other hand, has eight Congressional Districts as part of ten Electoral College votes.   With heavy redistricting, however, there is only one obvious Republican-leaning District, in the First Congressional District in Eastern Shore, and no real competitive Democratic-leaning Districts either.   That means while it is seemingly guaranteed for there to be nine Electoral College votes in Maryland for the Democratic candidate, it also means one similarly guaranteed vote for a Republican president, under the present Congressional District lines. Is this wrong or too much to bear?

Governor Larry Hogan (R) has sought to have Maryland move to a non-partisan selection method, with attempts at Commissions for Redistricting reform.  (Previous Governors of both parties have claimed they were interested in Redistricting reform, though Governor Hogan has pushed this more than his predecessors).    In the 2020 session, legislation was sought, to have “impartial” Redistricting commissions control these levers; that is, before the COVID pandemic hit, the Session was severely abbreviated  and sidelining consideration the measures. It is fair to say, thus far, every Redistricting Reform Commission in Maryland, whether real or for show, has been unsuccessful to achieve any sort of redistricting reform.  This became more obvious in view of Benisek, on what was widely decried as the most gerrymandered districts in the United States after 2010, certainly by a Democratic Party controlled legislature.  Because of the time-sensitive and importance of the redistricting following the decennial census figures being calculated, and last Tuesday’s elections, this may be attempted again in January 2021 in Annapolis.  If so, the Governor should consider adding Electoral College Reform, to the agenda.  That reform if it were to come from the most obvious, constitutional, and historically conducive method, can only be properly accomplished if done in conjunction with what is already being sought, of redistricting reform. 

This is the conundrum, and part of the fallacy that is not directly tackled by the Equal Citizens’ Group, in their academically interesting cases argued in four Circuit Courts of Appeals.  They wish to represent a minority of voters, in different states and scenarios.  But take for example Baten, in South Carolina, which is in some ways, the polar opposite of Rodriguez v. Newsome from California.  With gerrymandering, that likely means, solely Congressional Districts in Charleston and Columbia, will be selected in predictable ways as Democratic Electors, even though Republicans will win most all other Electoral College seats, since every Congressional District is significantly gerrymandered to be “safe” for the incumbents.  Yet, if the Congressional races aren’t more “competitive” because of significant gerrymandering by States, it won’t make much of a substantive difference, other than appearing to be a partisan advantage, that will replicate in different ways, but with predictable partisan divisiveness.  The outcomes are still predictable, and won’t tackle the root “cause” of some States being essentially ignored by potential Presidential candidates in the General election. There needs to be more persuasive opportunities for competitive districts, to justify the Electoral vote allocation change, and not be considered done solely for further partisan advantage.  Thus a unilateral change, such as Baten is by itself, not much better than a Winner-Take-All system.  You just have a lot more “District” jurisdictions, that are similarly “non-competitive” as the present system of about 40 States, that can be safely bypassed by Presidential candidates.

Thus, in the end, while I respectfully disagree or at least am presently unconvinced there are weighty Constitutional or Statutory issues such as argued by Baten and Rodriguez, I do agree from a public policy perspective, as the Mandalorian mantra goes,  “This is the Way.”  And if that’s correct, that the way forward, is for States to return back to a CDM system, then it is Certworthy for the United States Supreme Court, to at least do a history lesson, to explain the two legitimate systems of Electoral College allocation, similar to the way in 1892 the Supreme Court ostensibly found “Winner-Take-All” as not unconstitutional in McPherson , based on the Constitutional text.  This is similar to how in July of 2020, the Supreme Court found not unconstitutional for States to penalize “Faithless Electors” in Chiafalo.

Thus, “certworthiness” in Baten from the Fourth Circuit and/or Rodriguez from the Ninth Circuit, exists to explain to the American public if these unique and important public policy concerns of the Electoral College, similar to the Certiorari grant in Chiafalo, are of Constitutional import; and if not, whether the “Congressional District Method” of Electoral College allocation, remains constitutionally sound, and thus safe for more States to agree upon in the future.  This would also be another example of what Chief Justice John Roberts noted in Slip. Op. 33 of the combined Rucho and Benisek hyper-partisan gerrymandercases, to be part of the remaining different “avenue[s] for reform established by the Framers, and used by Congress in the past.”

Michael Wein is an attorney in Greenbelt, Maryland, whose practice concentrates on appellate, civil, and criminal litigation. He can be reached at weinlaw@hotmail.com. 


[i] In Davis v. Bandemer, 478 U. S. 109 (1986), six Supreme Court justices agreed that there was justiciability for hyper-partisan state-redistricting challenge from Indiana, but could not reach a majority decision on the rationale for justiciability, with three  Supreme Court Justices concluded there was not justiciability.

[ii] I also noted some amazement of this topic in my Post, as the issue made it to the oral arguments on an earlier round of Benisek at the Supreme Court on March 28, 2018, yet oddly was never addressed by the various parties and amici in the 2019 Supreme Court case.

[iii] With the possible exception of the 27th Amendment, initially proposed by James Madison in 1789 as part of the Bill of Rights, and Constitutionally enacted in 1992, that “No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.”

[iv]  Ray v. Blair, which came at a time when “pledges” in the 1950s were in vogue, confirmed it was constitutional for   an “elector pledge to cast his Electoral College ballot for his party’s presidential nominee, thus tracking the State’s popular vote. See Ray, 343 U. S., at 227.”  Chiafalo, Slip. Op. at 9

[v] As noted by Judge Niemeyer in Baten, “ [Madison] explained that the House of Representatives derives its power directly from the people; that the Senate derives its powers from the States as “political and coequal societies” and therefore indirectly from the people; and the presidency derives its power from a “compound source,” through the Electoral College. See The Federalist No. 39, at 197 (George W. Carey & James McClellan eds. 1990) (emphases added). Madison continued, “[the Electoral College] appears [in the Constitution] to be of a mixed character presenting at least as many federal as national features.” Id. Thus, in creating an Electoral College comprising Electors equal to the number of Senators and Representatives of each State, the Constitution takes into account the States as political and coequal societies by giving each two Electors simply by virtue of their statehood, and, at the same time, accounts for population of each State by giving each a number of Electors directly related to the State’s House members. And while the Constitution creates this body of Electors to serve the national function of electing a President and Vice President, it directs that the States appoint the Electors in the manner determined by their legislatures. At bottom, the system reflects a considered balance between national and state power.” Baten, at 354.

[vi] These interesting subjects are complicated but would be well suited for Amici analysis should the Supreme Court grant Certiorari related to the history of the “allocation” topic of the Electoral College.  In particular, taking a step back, this appears to quite interestingly involve “electoral psychiatry” in political science, including Game Theory and Prisoner Dilemma, something I know from working as a teacher’s assistant at the University of Maryland, and a topic that  John Nash famously won the Nobel Prize in Economics for in 1994.  

The United States is remarkably, still paying for divisive partisanship sins from over 200 years ago.  In 1796, the first United States President, George Washington, voluntarily agreed to not seek the office for more than a second Term, not just because of his character, but an acute awareness of the dangers of having a permanent President, akin to the “King George” arrogance that justified America’s independence from Great Britain.  President Washington’s Second Farewell Address , from September 1796, discussed these dangers of factional opportunism in words that seem as true today, the full Address still worth a read today, but just as a blurb, includes  “the alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism.” This goes against the Jeffersonian opinion, before the Civil War (when most people primarily thought of themselves as citizens of individual States), of Virginia needing to jealously “compete” with States like New York and Massachusetts. 

Now give credit where credit is due.  Thomas Jefferson wrote one the best idealist essays ever, in the Declaration of Independence, something that  President-elect Biden, repeatedly  alluded to that the Presidential Election was to reflect, as the will of the people of the “United States of America”  that “we the people” of the United States agreed upon, and the President was a vehicle and steward of that will. However, that’s not inconsistent with a “Reformed” Electoral College, based on a Congressional District method and cooperative Federalism principles. 

Yet later at one point, Jefferson took a different approach, as noted in 1969 Williams summary affirmance on the case out of Virginia.

“Many of the Brahmins of the Constitutional Convention, such as Thomas Jefferson, James Madison and James Wilson, held the district plan more advisable. Indeed, Virginia and several of the other States for some years chose electors by district. However, it was Jefferson who advised Virginia to switch to the general ticket. His advice sprang from a desire to protect his State against the use of the general ticket by other States. He found that when chosen by districts, Virginia’s representation among the electors was divided, while other States made their votes mean more in the college by adoption of the general ticket scheme of selection. This contention is no less true today.” 

Williams v. Virginia State Bd. of Elections, 288 F. Supp. 622, 626 (E.D. Va. 1968), aff’d, 393 U.S. 320 (1969). 

However, as noted by Judge Wynn’s Dissenting  Opinion in Baten, this is hardly a matter that should be seen as a proper source of Constitutional wisdom, but a singular self-interested and calculated decision by Jefferson, seeking to be the next President in 1800 in the nascent Democratic-Republic.

“Tellingly, South Carolina attaches much authority to the fact that Thomas Jefferson advocated for Virginia to adopt a winner-take-all system for selecting its electors. South Carolina argues Jefferson’s “advice sprang from a desire to protect his State against the use of [the] general ticket by other States.” Response Br. at 46 (quoting Williams, 288 F. Supp. at 626). Jefferson’s “advice” to Virginia also gave him a better chance to win the next presidential election, by directing all of Virginia’s Electoral College votes to the state’s winner—likely to be Jefferson himself. Jefferson even recognized that he had a personal stake in the question, noting that “[p]erhaps it will be thought I ought in delicacy to be silent on this subject.” Letter from Thomas Jefferson to James Monroe (Jan. 12, 1800), available at https://www.loc.gov/item/mtjbib009254.

Baten v. McMaster, 967 F.3d 345, 375 (4th Cir. 2020), as amended (July 27, 2020).

This prisoner dilemma psychiatry, helps explains why “Winner-Take-All,” took over in the United States.  This pattern began 150 years before Professor Nash came out with the political science theory, to explain this self-interested behavior.  It’s a classic “Prisoner’s dilemma” tracing from Games Theory from Economics, and later Political Science, where a mathematical “selfishness” leads for the actos (here, the other States) adopting the same self-interested, but ultimately not efficient and not pareto optimal result.

The “way out” from Prisoner’s dilemmas, always, is communication, to recognize what is real and false.   We need to cooperate but ideally cooperate within the confines of the Constitution of the United States, as originally intended by the Framers of said Constitution.  See e.g., August 23, 1823 Letter from James Madison, to Federal Judge George Hay (“I agree with you in thinking that the election of Presidential Electors by districts, is an amendment to be brought forward at the same time with that relating to the eventual choice of Presidents by the H. of Reps.  The district mode was mostly, if not exclusively in view when the Constitution was framed & adopted; and was exchanged for the general ticket & the legislative election, as the only expedient for baffling the policy of the particular States which had set the example.”)   For example, similar States, with comparable but reverse numbers of Congressional districts that are generally Republican (like for example, Kentucky), may want the same thing as Maryland, to evolve out of the devolution that came with “Winner-Take-All.”   If done in good faith, it is not only possible that more States will adopt CDM, but with communication, logically inexorable.

[vii] The non-profit group “Fairvote.org” has some useful information on this allocation topic, that appears to have not been updated regularly since 2012. (Which is about when the group appears to have switched to seeking the NPVIC, and not locatable on the original links that have been cited in some law review articles.)  See. e.g.,

https://www.fairvote.org/why-james-madison-wanted-to-change-the-way-we-vote-for-president#.UDUno8GPXSg ; Joseph Isola, “Why New Jersey Should Abandon Winner Take All Electoral Allocation,” 17 Rutgers J.L. & Pub Pol’y 141 (Fall 2019).  

[viii] And the basis of Nate Silver’s statistical and commentary resource blog on elections, www.fivethirtyeight.com.

[ix] Chiafalo’s decision, however, does suggest that the Supreme Court would treat with great skepticism any similar plans to the facts there.  Chiafalo confirms and effectively allows States to prohibit any future similar planned “swaps” of votes, amongst  Electors to allow a few “faithless” Electors alter or change the Presidential election, against the popular determination of the State.  The main platform of the “National Popular Vote Interstate Compact” (NPVIC) project seeks, upon an agreement of a Majority of the Electoral College from constituent States, that all member States will automatically, then support the national popular candidate for President. This is presently, considered to be entirely made up of “Blue” and Democratic Party-leaning states, such as was recently narrowly adopted by Referendum in Colorado.   Assuming arguendo such an agreement could be found Constitutional, it would be incredibly divisive, against the generally speaking, less populous States who don’t agree, with the “Compact.” (Or that somehow there’s not already a successful “Compact” known as the United States Constitution.) For those who prefer discussions of Constitutional issues in aesthetically pleasing animation of about 6 minutes length, I’d recommend CPG Grey’s Youtube video discussion on the topic, against the NPVIC  and on the Chiafalo Supreme Court decision. For an alternative viewpoint, not in animation form, John Oliver’s Last Week Tonight program, recommended adopting the NPVIC, as a direct response and only solution to prevent unfair partisan advantage in Supreme Court nominations.

[x] Which has happened in 9% of the 53 of 58 Presidential elections, though the two of recent memory, understandably comes across people’s minds, with George Bush’s win in 2000 and Trump’s win in 2016.  Still, up through 2000, the percentage was 6%, and it had not happened since 1888 and Benjamin Harrison’s election.

[xi]  And parenthetically speaking, imagine if we didn’t have an Electoral College, and a president or presidential candidate with autocratic tendencies, was directly or indirectly in charge of a single bureaucratic official or multi-official Board, to decide a single standard “popular vote” system of balloting.  Thus, a centralized system creates the possibility that system could be singularly controlled and influenced.  This possibility is greatly diminished with the Electoral College.

[xii] The Baten Court, noted the “legal” argument for this briefly, in the Majority decision. Baten v. McMaster, 967 F.3d 345, 359 (4th Cir. 2020), as amended (July 27, 2020)(“Similarly, the plaintiffs’ suggestion that the winner-take-all system serves as a disincentive for political candidates to campaign in South Carolina, thereby impeding their ability to participate effectively in the political process, is too tenuous to support their freedom of association claim.”)   That being said, the public policy aspects, are quite real and disconcerting, but similar to the Supreme Court’s decisions in Rucho/Benisek, separating out the Constitutional issues, from what is generally acknowledged to be a horrible public policy, of bizarrely established Districts, such as what was characterized by a federal judge, as the “broken-winged pterodactyl” shape of Maryland’s Third Congressional District.

[xiii] As another example of the non-necessity of “Winner-Take-All” is that few primary elections, in order to decide upon the best candidate, employ this method, with only eight Republican party primary or caucuses using this modality, and zero Democratic party primary or caucuses not having some “proportionality” share of vote.

[xiv] “And the Supreme Court summarily affirmed the district court’s ruling on appeal. Williams, 393 U.S. 320, 89 S.Ct. 555, reh’g denied, 393 U.S. 1112, 89 S.Ct. 857, 21 L.Ed.2d 813 (1969). To be sure, the Supreme Court’s summary affirmance of the district court’s decision in Williams “affirm[s] the judgment but not necessarily the reasoning by which it was reached,” Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (per curiam) (quoting Fusari v. Steinberg, 419 U.S. 379, 391–92, 95 S.Ct. 533, 42 L.Ed.2d 521 (1975) (Burger, C.J., concurring)), but it does “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions,” id.”  Baten v. McMaster, 967 F.3d 345, 356 (4th Cir. 2020), as amended (July 27, 2020).

xiv Still, at most, the swing Electoral College votes in these two jurisdictions, in a competitive Presidential Election, would involve Maine’s Second District and Nebraska’s Second Congressional District (home of Omaha).   But even then, it probably would not be determinative, without more States joining, as for example, when President Obama eked out a win against Mitt Romney in Nebraska’s Second in 2012, (though he had already secured victory in other States, but the first time the District had voted Democratic since Barry Goldwater lost in 1964.)  These two States in particular, can be both practical and traditionally non-ideologic in the George Washington Second Farewell Address sense, with centrist and independent candidates being elected, and therefore, it is unsurprising that they preferred the original system intended by the Founders and Framers. 

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