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Before the advent of the "short ballot" in the early 20th century (as described in Selection process) the most common means of electing the presidential electors was through the general ticket. The general ticket is quite similar to the current system and is often confused with it. In the general ticket, voters cast ballots for individuals running for presidential elector (while in the short ballot, voters cast ballots for an entire slate of electors). In the general ticket, the state canvass would report the number of votes cast for each candidate for elector, a complicated process in states like New York with multiple positions to fill. Both the general ticket and the short ballot are often considered at-large or winner-takes-all voting. The short ballot was adopted by the various states at different times; it was adopted for use by North Carolina and Ohio in 1932. Alabama was still using the general ticket as late as 1960 and was one of the last states to switch to the short ballot.

The question of the extent to which state constitutions may constrain the legislature's choice of a method of choosing electors has been touched on in two U.S. Supreme Court cases. In McPherson v. Blacker, 146 U.S. 1 (1892), the Court cited Article II, Section 1, Clause 2 which states that a state's electors are selected "in such manner as the legislature thereof may direct" and wrote these words "operat[e] as a limitation upon the state in respect of any attempt to circumscribe the legislative power". In Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000), a Florida Supreme Court decision was vacated (not reversed) based on McPherson. On the other hand, three dissenting justices in Bush v. Gore, 531 U.S. 98 (2000), wrote: "[N]othing in Article II of the Federal Constitution frees the state legislature from the constraints in the State Constitution that created it."[132] Extensive research on alternate methods of electoral allocation have been conducted by Collin Welke, Dylan Shearer, and Riley Wagie in 2019.

Appointment by state legislature

In the earliest presidential elections, state legislative choice was the most common method of choosing electors. A majority of the state legislatures selected presidential electors in both 1792 (9 of 15) and 1800 (10 of 16), and half of them did so in 1812.[133] Even in the 1824 election, a quarter of state legislatures (6 of 24) chose electors. (In that election, Andrew Jackson lost in spite of having plurality of the popular vote and the number of electoral votes representing them,[134] but six state legislatures chose electors that overturned that result.) Some state legislatures simply chose electors, while other states used a hybrid method in which state legislatures chose from a group of electors elected by popular vote.[135] By 1828, with the rise of Jacksonian democracy, only Delaware and South Carolina used legislative choice.[134] Delaware ended its practice the following election (1832), while South Carolina continued using the method until it seceded from the Union in December 1860.[134] South Carolina used the popular vote for the first time in the 1868 election.[136]

Excluding South Carolina, legislative appointment was used in only four situations after 1832:

  • In 1848, Massachusetts statute awarded the state's electoral votes to the winner of the at-large popular vote, but only if that candidate won an absolute majority. When the vote produced no winner between the Democratic, Free Soil, and Whig parties, the state legislature selected the electors, giving all 12 electoral votes to the Whigs.[137]
  • In 1864, Nevada, having joined the Union only a few days prior to Election Day, had no choice but to legislatively appoint.[137]
  • In 1868, the newly reconstructed state of Florida legislatively appointed its electors, having been readmitted too late to hold elections.[137]
  • Finally, in 1876, the legislature of the newly admitted state of Colorado used legislative choice due to a lack of time and money to hold a popular election.[137]

Legislative appointment was brandished as a possibility in the 2000 election. Had the recount continued, the Florida legislature was prepared to appoint the Republican slate of electors to avoid missing the federal safe-harbor deadline for choosing electors.[138]

The Constitution gives each state legislature the power to decide how its state's electors are chosen[134] and it can be easier and cheaper for a state legislature to simply appoint a slate of electors than to create a legislative framework for holding elections to determine the electors. As noted above, the two situations in which legislative choice has been used since the Civil War have both been because there was not enough time or money to prepare for an election. However, appointment by state legislature can have negative consequences: bicameral legislatures can deadlock more easily than the electorate. This is precisely what happened to New York in 1789 when the legislature failed to appoint any electors.[139]

Electoral districts

Another method used early in U.S. history was to divide the state into electoral districts. By this method, voters in each district would cast their ballots for the electors they supported and the winner in each district would become the elector. This was similar to how states are currently separated into congressional districts. However, the difference stems from the fact that every state always had two more electoral districts than congressional districts. As with congressional districts, moreover, this method is vulnerable to gerrymandering.

Congressional district method

There are two versions of the congressional district method: one has been implemented in Maine and Nebraska; another, in Virginia, has only been proposed. Under the implemented means, one electoral vote goes per the plurality of the popular votes of each congressional district (for the U.S. House of Representatives); and two per the statewide popular vote. This may result in greater proportionality. It has often acted as the other states, as in 1992, when George H. W. Bush won all five of Nebraska's electoral votes with a clear plurality on 47% of the vote; in a truly proportional system, he would have received three and Bill Clinton and Ross Perot each would have received one.[140]

In 2013, the Virginia proposal was tabled. Like the other congressional district methods, this would have distributed the electoral votes based on the popular vote winner within each of Virginia's 11 congressional districts; but unlike those, the two statewide electoral votes would be awarded based on which candidate won the most congressional districts.[141]

A congressional district method is more likely to arise than other alternatives to the winner-takes-whole-state method, in view of the main two parties resistance to scrap first-past-the-post. State legislation is sufficient to use this method.[142] Advocates of the method believe the system encourages higher voter turnout or incentivizes candidates, often, to visit and appeal to states deemed "safe", overall, for one party.[143] Winner-take-all systems ignore thousands of popular votes; in Democratic California there are Republican districts, in Republican Texas there are Democratic districts. Because candidates have an incentive to campaign in competitive districts, with a district plan, candidates have an incentive to actively campaign in over thirty states versus about seven "swing" states.[144][145] Opponents of the system, however, argue candidates might only spend time in certain battleground districts instead of the entire state and cases of gerrymandering could become exacerbated as political parties attempt to draw as many safe districts as they can.[146]

Unlike simple congressional district comparisons, the district plan popular vote bonus in the 2008 election would have given Obama 56% of the Electoral College versus the 68% he did win; it "would have more closely approximated the percentage of the popular vote won [53%]".[147]

Implementation

Of the 43 multi-district states whose 514 electoral votes are amenable to the method, Maine (4 EV) and Nebraska (5 EV) use it.[148] Maine began using the congressional district method in the election of 1972. Nebraska has used the congressional district method since the election of 1992.[149][150] Michigan used the system for the 1892 presidential election,[140][151][152] and several other states used various forms of the district plan before 1840: Virginia, Delaware, Maryland, Kentucky, North Carolina, Massachusetts, Illinois, Maine, Missouri, and New York.[153]

The congressional district method allows a state the chance to split its electoral votes between multiple candidates. Prior to 2008, neither Maine nor Nebraska had ever split their electoral votes.[140] Nebraska split its electoral votes for the first time in 2008, giving John McCain its statewide electors and those of two congressional districts, while Barack Obama won the electoral vote of Nebraska's 2nd congressional district.[154] Following the 2008 split, some Nebraska Republicans made efforts to discard the congressional district method and return to the winner-takes-all system.[155] In January 2010, a bill was introduced in the Nebraska legislature to revert to a winner-take-all system;[156] the bill died in committee in March 2011.[157] Republicans had passed bills in 1995 and 1997 to do the same, vetoed by Democratic Governor Ben Nelson.[155]

Recent abandoned adoption in other states

In 2010, Republicans in Pennsylvania, who controlled both houses of the legislature as well as the governorship, put forward a plan to change the state's winner-takes-all system to a congressional district method system. Pennsylvania had voted for the Democratic candidate in the five previous presidential elections, so some saw this as an attempt to take away Democratic electoral votes. Although Democrat Barack Obama won Pennsylvania in 2008, he won 55% of its popular vote. The district plan would have awarded him 11 of its 21 electoral votes, a 52.4% which was much closer to the popular vote percentage.[158][159] The plan later lost support.[160] Other Republicans, including Michigan state representative Pete Lund,[161] RNC Chairman Reince Priebus, and Wisconsin Governor Scott Walker, have floated similar ideas.[162][163]

Proportional vote

In a proportional system, electors would be selected in proportion to the votes cast for their candidate or party, rather than being selected by the statewide plurality vote.[164]

Contemporary issues

Arguments between proponents and opponents of the current electoral system include four separate but related topics: indirect election, disproportionate voting power by some states, the winner-takes-all distribution method (as chosen by 48 of the 50 states, and the District of Columbia), and f

The question of the extent to which state constitutions may constrain the legislature's choice of a method of choosing electors has been touched on in two U.S. Supreme Court cases. In McPherson v. Blacker, 146 U.S. 1 (1892), the Court cited Article II, Section 1, Clause 2 which states that a state's electors are selected "in such manner as the legislature thereof may direct" and wrote these words "operat[e] as a limitation upon the state in respect of any attempt to circumscribe the legislative power". In Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000), a Florida Supreme Court decision was vacated (not reversed) based on McPherson. On the other hand, three dissenting justices in Bush v. Gore, 531 U.S. 98 (2000), wrote: "[N]othing in Article II of the Federal Constitution frees the state legislature from the constraints in the State Constitution that created it."[132] Extensive research on alternate methods of electoral allocation have been conducted by Collin Welke, Dylan Shearer, and Riley Wagie in 2019.