States Have the Power to Allocate Their Electoral Votes
The shortcomings of the current system stem from the winner-take-all rule that awards all of a state’s electoral votes to the candidate who receives the most popular votes in each state.
The U.S. Constitution does not specify in detail how the President is to be elected but, instead, gives the states exclusive and plenary (complete) control over the manner of awarding their electoral votes. Article II of the U.S. Constitution says, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
The winner-take-all rule (currently used by 48 states) is not in the U.S. Constitution. The Founding Fathers did not advocate the winner-take-all rule in the debates of the Constitutional Convention of the Federalist Papers. When the Founding Fathers went back to their states to organize the nation’s first presidential election in 1789, only three states used the “winner-take-all” rule. All three states abandoned it by 1800 (but later re-adopted it). The winner-take-all rule is entirely a matter of state law.
Massachusetts, for example, exercised its power to change its system of awarding its electoral votes on 10 different occasions. In 1789, the legislature effectively chose the state’s presidential electors. Then, in 1792, the voters were allowed to choose the presidential electors in 4 multi-member regional districts. Then, the voters picked electors by congressional districts. Then, the legislature took back the power for itself. Later, the voters picked electors using the statewide winner-take-all rule. Then, the legislature again picked electors, followed by the voters using districts, followed by legislative choice, followed again by the voters using districts, and, finally, the present-day statewide winner-take-all rule.
The statewide winner-take-all rule did not come into widespread use because of any amendment to the U.S. Constitution. The winner-take-all rule may be changed in the same way that it was adopted, namely by changing state law.
The National Popular Vote bill (currently pending in 47 state legislatures) would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes—that is, enough electoral votes to elect a President (270 of 538). When the National Popular Vote bill takes effect, all of the electoral votes from the enacting states would be awarded, as a bloc, to the presidential candidate who receives the most popular votes in all 50 states (and DC). Thus, the National Popular Vote bill would guarantee an Electoral College majority (hence the Presidency) to the candidate who receives the most votes in all 50 states (and DC).
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The Founding Fathers said in the U.S. Constitution : "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . ." The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as "plenary" and "exclusive."
Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all rule) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation's first presidential election .
In 1789, in the nation's first election, the people had no vote for President in most states, Only men who owned a substantial amount of property could vote.
In 1789 only three states used the state-by-state winner-take-all rule to award electoral votes.
There is no valid argument that the winner-take-all rule is entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The current 48 state-by-state winner-take-all rule (i.e., awarding all of a state's electoral votes to the candidate who receives the most popular votes in a particular state) is not mentioned in the U.S. Constitution, the debates of the Constitutional Convention, or the Federalist Papers. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all rule.
As a result of changes in state laws enacted since the 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all rule is used by 48 of the 50 states.
The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes.
But, the rules they use today are based upon the electoral results within their own state. Basing the allocation of Electoral College votes on election results outside of the state makes voting by states obsolete and immaterial. The plan put forth by National Popular Vote is just a convoluted way to amend the Constitution without doing the hard work of the Amendment process - as spelled out by the Constitution itself.
In 2004, Washington, New York, and California voted for Kerry. Under the NPV plan, the electoral votes of these states would have been given to GWB - 180 degrees out of phase with how the voters of those state actually voted. The only voters whose votes would actually count are the ones in states that voted the same as the national majority.
I don't have an issue with States that want to change their "winner-take-all" formula and apportion their electoral votes based on the elections results within their own state.