Editorial: The unfair Electoral College: The Nebraska and Maine plan would be better provided every state divided their votes

Nebraska has long counted its electoral votes in presidential elections differently than almost every other state in the union. Forty-eight states are winner-take-all, meaning that the candidate who gets the most popular votes gets all of that state’s electoral votes. A single-vote victory in California or Texas or Florida or New York yields all those states’ 54 or 40 or 30 or 28 electoral votes, putting a candidate well on their way to the 270 electoral votes needed to win the election.

Nebraska and Maine are different. In the Cornhusker State back in 1992, the people chose a system that they thought to be fairer. It goes like this: The winner in each of the state’s three congressional districts gets an electoral vote. Then the candidate who wins the statewide popular vote gets the remaining two.

In recent weeks, very devious Republicans in the Nebraska state legislature, eager to put a thumb on the scale for Donald Trump, looked to override the will of the people and force an eleventh-hour change, sending the state back to winner-take-all. That would’ve been disastrous, and if it had been decisive in determining the outcome, it would’ve been a taint on the sanctity of the 2024 election that would never have washed out.

As the dust clears, the American people should understand a few things: First, though the Electoral College is prescribed in the Constitution, it’s not a democratic treasure. Indeed, the way votes are counted dishonors the will of voters in two big ways. First, because the number of votes states have is determined by the number of House seats they have plus the number of U.S. senators (always two), which gives smaller states disproportionate power. Second, because of the winner-take-all nature of votes in 96% of the states.

Those two antiquated features explain why the candidate who won the popular vote lost the presidency in 2000 and 2016, and why such a split between the will of the American people and the outcome of a free and fair election consistent with the rules could happen again this year.

Unfortunately, the problem can’t be fixed state by state. The number of electoral votes each state gets is determined by the Constitution. As to the winner-take-all problem, if New York or Texas were to do the “right thing” like Nebraska and Maine and start to divvy up its electoral votes based on the proportion of voters who chose each candidate, it would actually yield a less fair system overall — unless and until every other state on the map chose to do the same thing. Only when all states split their electoral votes proportionally does it make political, small-d democratic sense for any given state to do so.

Another way to fix the problem is for more states to sign onto the National Popular Vote compact, a promise to send all of their electoral votes to whoever wins the most votes in the United States as a whole. Seventeen states with 209 electoral votes, New York included, have signed on to date. If a critical mass get on board, the archaic Electoral College could be history. Provided, that is, the courts, another not-especially-democratic institution, don’t upend it all.

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