This is the second post in a series. The first is here.

The Electoral College, for whatever faults one may identify, might have some value in ensuring a true majority winner, that the winner has a broad base of national support, and that the winner is representative of the greater population rather than simply the total sum of voters. (One could, of course, contest these points, particularly as some of them are post hoc from the Founding!)

But what about the outsized role that states like Ohio, Florida, and Virginia play in our presidential elections? Surely we should do something about that?

The state legislatures have essentially plenary power over the decision of how to choose electors. They could choose electors themselves, which many did for a long time, and which they could do today. But we expect to participate directly in that process today. States could choose to award presidential electors proportionately, or they could award them by congressional district, as Maine and Nebraska do.

But 48 states and the District of Columbia all award their electors on a winner-take-all basis: whichever candidate wins the most votes in the state wins all of the electoral votes. It's a major reason some elections, like 1984, turn into landslides.

States have understandably moved in this direction. What good is it, states reasoned, if we have, say, 19 electoral votes, and we award the proportionately? Candidates might campaign here to shift from 9 to 10 electoral votes. But in a winner-take-all system, states can leverage their power greatly, and campaigning might shift the electoral slate from 0 to 19 votes. That power is beneficial to the states, particularly larger ones.

What about states like Texas or California, which see very little from contemporary presidential campaigns (except for fundraising!)? These states also have little incentive to change their rules toward proportional or some other way of awarding electors--after all, why would the reliably Republican Texas or the reliably Democratic California choose to cede some power away from their preferred candidate, even if they're mostly ignored in the process?

But suppose one could persuade a legislature to change the rules to something else, one that gives more voters in the state greater input into the process rather than simply a winner-take-all process. Indeed, our presidential primaries often award delegates by congressional district (sometimes, perhaps, quite unfairly), or proportionately. Why not do the same?

If the legislature won't do it, perhaps it could be done via initiative. Colorado sought to do by ballot initiative, and an idea was floated in California to do the same. (Assuming, of course, that the power could be exercised via initiative rather than through the legislature alone.) But even such decisions are often decried as "rigging" the Electoral College. Changing California's awarding of electors unilaterally, for instance, at least in light of recent elections, would move the state from a Democratic+55 vote advantage to something closer to a Democratic+15 electoral vote advantage--a massive loss for the majority voters in the state, and the state legislature, which might prefer maximizing the state's leverage for a preferred candidate over more equitable representation. Until voters or legislatures "get over" the fact that proportional allocation is more representative of the interests of the state as a whole, and is preferred as a value over leveraging the most out of your state, such options are unlikely to garner much support. (And states must do so unilaterally--they cannot enter compacts with one another absent congressional consent.)

Further, some might conclude that this would be more trouble than it's worth. For instance, such a system in California might yield a few stray votes for Libertarian Party nominee Gary Johnson and Green Party nominee Jill Stein this November. It would surely empower those minor party supporters. But if played out in California, and perhaps in other states, it would assuredly deprive any candidate of receiving a majority of the Electoral College. (Indeed, it surely would have done so in 1992 with Ross Perot, who didn't receive a single electoral vote but would have earned well over a hundred in a national proportional system.) And sending elections to the House might have its own problems, and a later post will describe.

But states do proportional allocation of delegates in presidential primaries without great complications. They do so, of course, often with a minimal showing of support required to be eligible to receive any delegates, such as requiring a 10% or 15% showing at the polls. Such a system--assuming other objections could be overcome!--would mostly cure the majority vote failure problem for minor party spoilers (except in a case like Perot, who was hardly a "minor" party spoiler!).

States like Maine and Nebraska do award electors on the basis of congressional districts--two to the statewide winner, and one in each congressional district. This decision, however, might further polarize the already-unpopular act of political gerrymandering, turning congressional districts into something even still more significant than electing members of Congress alone.

Perhaps proportional representation would better reflect the interests of the state, assuming the political pressure could be overcome. Until then, however, states face the results of their own decisionmaking--ceding great power in the campaign process to the few states with deeply fickle and divided electorates.

For more, consider The Compact Clause and the National Popular Vote, 6 Election L.J. 372 (2007), and Invisible Federalism and the Electoral College, 44 Ariz. St. L.J. 1237 (2012).