



































58

ELECTORAL VOTE ALLOCATION 
AND PENNSYLVANIA:  

HOW AND WHY WE SHOULD 
EMBRACE THE STATUS QUO

HeaTHer FreDerick

Slippery Rock University

Terrance kible

Slippery Rock University

The Pennsylvania General Assembly has introduced bills to reform the 
allocation of electoral votes in presidential elections. These reforms include 
changing from a winner-take-all (unit) system of allocating electoral votes 
to inclusion in the National Popular Vote Interstate Compact and adopting 
the congressional district method of allocating electoral votes. This paper 
argues that while there are substantial problems with the current method 
by which Pennsylvania (and most other states) allocate its electoral votes, 
the potential problems associated with reform proposals would not improve 
the fairness of the current system, the efficacy of citizens’ votes, nor the 
importance of the state of Pennsylvania in presidential elections.

Arguments for making the presidential election more democratic by 
reforming the Electoral College system are abundant in both the academic 
literature and the popular press, although empirical studies on the subject 
are rather dated. Short of amending the United States Constitution, the path 
to changing the way Americans select their president lies within the state 
legislatures, who are given the power to determine the way electors are 
chosen. 

While discussions of altering the Electoral College process tend to be 
limited to the time periods directly before and after the presidential election 
(Grofman and Feld 2005: 1), “the incentives to change the institution tend 
to fade fast after an election, as those who won become reluctant to give up 



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HEATHER FREDERICK AND TERRANCE KIBLE

what they now come to regard as a winning formula” (Grofman and Feld 
2005: 13). The arguments to change the way Americans elect their president 
tend to fall into several categories, including amending the Constitution to 
adopt a direct election and changing the way states allocate electoral votes. 
Within a larger discussion of attempts to reform the Electoral College, 
this paper will attempt to refute the reform proposals introduced into the 
Pennsylvania General Assembly to change the method by which our state 
allocates its electoral votes. 

The Framers of the Constitution, after much debate, ultimately settled 
upon an indirect election of the executive. Whether the reasons for this 
decision were due to their mistrust of the citizenry to directly elect the 
president or a concession made to assuage the southern states as a side deal 
to the three-fifths compromise (Thomas et al. 2012: 3), their design resulted 
in a system with which most Americans are confused and few support. 

According to Article II, section 1, of the United States Constitution, 
“Each State shall appoint, in such Manner as the Legislature thereof 
may direct, a Number of Electors.” At the Constitutional Convention, 
the delegates proposed several methods of selecting electors: “by state 
legislatures, by governors, and popular election. Convention delegates, 
probably motivated by the desire to secure ratification, left it to the states” 
(Thomas et al. 2012: 3). The states not only have the power to determine 
how electors are selected, they have power over administering elections, 
including determining voter eligibility (Muller 2012: 1239).

Three basic methods of elector selection were used in the first 
presidential election: “state legislature, popular vote, and a hybrid of these 
two methods” (Adkinson and Elliott 1997: 78). Although states remain free 
to decide how to choose their electors, after experimenting with different 
processes, all states now use the popular election to determine their electors 
(Johnson 2012: 9-10; The Philadelphia Inquirer 2008; Haddock 2004; 
Adkison and Elliott 1997: 78). While the Framers of the Constitution 
assumed that electors would vote independently, the use of popular 
elections to determine the choice of electors and the winner-take-all method 
of allocating the electors “evolved as state political machines flexed their 
muscle” (USA Today 2004). 

The delegates at the Constitutional Convention mandated that the 
candidate who achieved the most electoral votes would become president 
and the candidate receiving the second most electoral votes would become 
vice president. This system remained unchanged until a sharply divided 
election in 1800 between Aaron Burr and Thomas Jefferson forced Congress 
to make a change. On June 18, 1804, the states ratified the 12th Amendment 
to the Constitution, which created the separate election of the president and 
vice president by the Electoral College. The Electoral College has remained 
unchanged at its core since the ratification of the 12th Amendment.1 



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ELECTORAL VOTE ALLOCATION AND PENNSYLVANIA

Despite the stability of the Electoral College as an institution for over 
200 years, criticisms of the method by which Americans select their president 
abound. In fact, Muller argues that the country is closer to abolishing the 
Electoral College “than at any time in nearly fifty years and on pace for an 
overhaul as early as the next presidential election” (Muller 2012: 1238). 
Gallup polls measuring popular support for the Electoral College have 
revealed that Americans would prefer the Electoral College to be abolished 
(Johnson 2012: 34; Sampson 2008). The rationales for reforming the 
Electoral College predominantly stem from an issue of fairness. 

Millions of citizens are disenfranchised every time they cast their ballot 
for president due to the current system (Duquette and Schultz 2011: 18). 
There is an inherent disparity in the Electoral College that causes votes in 
some states to count more than votes in other states. Because representation 
in the Senate is vastly disproportionate and representation in the House of 
Representatives is unbalanced as well, the number of electoral votes awarded 
to each state does not reflect the differences in population among the states 
(Patel 2012: 7). For example, California has 53 times the population of 
Wyoming, but only 18 times more of the vote in the Electoral College 
(Patel 2012: 7). Small states, due to their constitutionally guaranteed one 
member of the House of Representatives and two senators, have as much 
as three times the vote share in the Electoral College as they would if 
electoral votes were distributed purely on population (Johnson 2012: 33; 
Dahl 2003). “Montana has a population of approximately 940,000 people 
and receives three electoral votes while California’s population is near forty 
times Montana’s and receives 55 electoral votes, or only 18 times as many 
votes (Sampson 2008; Levinson 2006)” (Johnson 2012: 34).

The disparities in apportionment of electoral votes in the Electoral 
College create a dilution of citizens’ votes in every state other than the 
least populated states. “The dilution of voters potentially disenfranchises 
Americans and it violates the democratic tenets on which this nation was 
founded” (Johnson 2012: 33). However, the malapportionment of electoral 
votes is not the only way in which votes in some states are made to count for 
more at the state level in presidential elections.

The Electoral College wastes millions of votes (Edwards 2004). In 
Reynolds v Sims (1964), Chief Justice Earl Warren argued, “to the extent that 
a citizen’s right to vote is debased, he is that much less a citizen” (Edwards 
2004: 53). Under the institution of the Electoral College, citizens who vote 
for the losing presidential candidate in their state have wasted their vote 
because it does not count at the national level. 

Because the outcome of which presidential candidate’s party will win 
most states is virtually predetermined, citizens in states that are considered 
reliably blue or red states are ignored as if their vote for president does not 
matter (Johnson 2012: 18). Therefore, the issues of concern to safe states 



61

HEATHER FREDERICK AND TERRANCE KIBLE

are ignored throughout the election. “New Yorkers [who represent a very 
reliable blue state] are playing almost no role in picking the next leader of 
the free world. No inspiring rallies. No pandering to our local concerns. 
Precious few diner visits or door-to-door campaigning” (Hammond 2008). 
Typically, presidential candidates tend to ignore around 76% of the states 
(Richie and Levien 2013: 360) and instead focus their time, energy, and 
campaign dollars on the few states that are up for grabs. Table 1 shows 
changes in the number of competitive states in presidential elections from 
1960 to 2012 and their electoral votes (Richie and Levien 2013: 363).

Table 1 
Competitive States in Presidential Elections and Their Electoral Votes, 1960-

2012

Year Number of Swing States
Total Electoral Votes in Swing 

States

1960 23 319

1964 17 204

1968 19 273

1972 22 235

1976 24 345

1980 15 221

1984 21 260

1988 21 272

1992 22 207

1996 13 206

2000 16 167

2004 13 159

2008 9 116

2012 11 140

The winner-take-all method of allocating electoral votes also causes 
Republican votes in reliably blue states as well as Democratic votes in 
reliably red states to not count at all. The citizens in safe states who vote 
contrary to the majority of the state’s citizens have no representation of 
their vote at all. In the 2000 presidential election, 4.5 million Californians 
(45% of the electorate in the state) voted for George W. Bush (Haddock 
2004); however, none of their votes were reflected by the allocation of all 
the states’ electoral votes for Al Gore. The three most populous states in 
the country, New York, California, and Texas, receive virtually no attention 
from presidential candidates who assume that the winner in that state is a 



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ELECTORAL VOTE ALLOCATION AND PENNSYLVANIA

foregone conclusion. “So White House hopefuls of both parties spend way 
too much time worrying about corn farmers and anti-Castro Cuban refugees 
and nowhere near enough focusing on concerns such as mass transit and 
protecting major cities from terrorist attacks” (Hammond 2008). In Barack 
Obama’s first presidential campaign, he solicited millions of dollars from 
citizens in California that was used to woo voters in Nevada, Iowa, Colorado, 
Ohio, New Hampshire, Florida, Pennsylvania, Virginia, and North Carolina. 
Campaigns focusing only on battleground states do not address national 
problems; rather, the campaigns ignore issues of concern to the majority of 
Americans (Johnson 2012: 21-22). 

Voters in Pennsylvania, Ohio, and Florida have a much larger role in 
deciding who will be elected president than voters in safe states. In 2004, 
voters in swing states determined the winner of the presidential election, and 
their state populations consisted of only 27% of the total nation’s population 
(Johnson 2012: 20). The few swing states in presidential electoral politics 
decide the winner of the campaign. For the swing states, this is a huge 
advantage. Presidential candidates not only spend more money to attract 
potential voters, thereby contributing to the states’ economies, but they also 
spend more time campaigning in these states. In the last six months of the 
2008 campaign, Ohio and Pennsylvania benefitted from over 40 visits from 
the presidential candidates (Johnson 2012: 69).

Depending upon the closeness of the election in the state and the 
election year, one citizen’s vote may count up to a hundred or a thousand 
times more than a citizen’s vote in another state (Duquette and Schultz 
2011: 5; The Philadelphia Inquirer 2008). This is due to the winner-take-all 
method of allocating electoral votes. 

The winner-take-all allocation of states’ Electoral College votes…
leads to distortions every time a presidential election is held. These 
distortions undermine the public’s faith in democracy. A case can 
be made that they may run afoul of the constitutional principle 
of “one-person, one-vote”. When a vote for president in one state 
carries 215 times the impact on the final Electoral College tally of 
a vote for president in another state…the principle of “one-person, 
one-vote” is undermined. What all this suggests is that voters in 
some states, because of the winner-take-all method of allocating 
electoral votes, have significantly more influence in an election 
than do those in other states (Duquette and Schultz 2011: 18).

This criticism of the Electoral College is valid. Because the weights of some 
citizens’ votes count more during a presidential election than the weights 
of other citizens’ votes, it is possible that the interests and opinions of a 
majority of citizens are discounted (Johnson 2012: 17-18).



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HEATHER FREDERICK AND TERRANCE KIBLE

Critics of the Electoral College also argue that the institution decreases 
political participation (Johnson 2012: 21) and “results in stagnation in 
state elections” (Johnson 2012: 23). There is an estimated 6% lower voter 
turnout in reliably red and blue states than in swing states due to the fact that 
citizens in “safe states” correctly perceive that their presidential vote is not 
important (Johnson 2012: 23).

Some proponents of reforming the Electoral College have focused on 
plans to change the winner-take-all allocation of electoral votes. They argue 
that the winner-take-all system, in which the presidential candidate who 
receives a plurality of a state’s popular vote is awarded all of the state’s 
electoral votes, leads to bias and the possibility of electing as president the 
loser of the popular vote (Adkinson and Elliott 1997: 79; Longley and Dana 
1992: 123). Although many authors argue that the Electoral College itself is 
biased, undemocratic, and can lead to the election of the loser of the plurality 
vote (Adkinson and Elliot 1997: 79), most fail to cite the winner-take-all 
system as complicit in these problems. Eliminating the Electoral College 
would be cumbersome at best due to the need to amend the Constitution, 
but the Constitution does not require that states allocate their electoral votes 
on a winner-take-all basis.

The winner-take-all system developed in the early nineteenth century 
as a way for the two-party system to create 

incentives for a state’s dominant party…to maximize the impact 
of their state’s voters in determining the presidential outcome. 
As more states adopted a winner-take-all allocation rule, the 
remaining states generally followed suit out of self-defense, lest 
internal divisions reduce the state’s overall impact on outcomes 
(Grofman and Feld 2005: 13). 

States essentially were compelled to adopt the winner-take-all system in 
order to maintain influence in presidential elections.2

States are not required by the U.S. Constitution to base the allocation 
of their electoral votes on a plurality of the state’s popular vote. In Bush v 
Gore (2000), the Supreme Court ruled that “the individual citizen has no 
federal constitutional right to vote for the electors for the President of the 
United States unless and until [his/her state] chooses a statewide election 
as the means” of choosing electors. Hypothetically, a state “could simply 
choose not to have a November general presidential election at all and select 
presidential electors by some means other than a general popular election” 
(Amar 2007). However, the Court also ruled that once a state chose the 
popular election as the method of allocating their electoral votes, “the right 
for voters to participate in that election is constitutionally ‘fundamental’ and 
cannot be denied or abridged except for compelling reasons” (Amar 2007).



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ELECTORAL VOTE ALLOCATION AND PENNSYLVANIA

In the twentieth century, the focus of presidential election criticism 
has become less about reforming the Electoral College and more about its 
abolition and subsequent replacement with a new method by which to elect 
the president. Thus far, the most popular alternative method for the Electoral 
College has been the direct election. This method, at its foundation, is 
the idea that the president be chosen by a plurality of voters from across 
the nation, regardless of state. Furthermore, various alternative electoral 
systems like runoff and ranked-choice voting have been proposed. Since 
the idea of the direct election gained popularity, 24 different legislatures 
have passed resolutions that call for their state to remove itself from the 
Electoral College and embrace a direct election. Although these states have 
made some progress toward the creation of a direct election, they remain 
well short of their goal because they have not achieved nearly enough 
support to make the necessary constitutional change for the direct election 
to replace the Electoral College. The process of amending the Constitution 
is enumerated in Article V. 

The first such major reform proposal came in 1950 with the Lodge-
Gossett Amendment, which called for a heavy modification of the Electoral 
College that would have replaced it with a proportional electoral vote. Under 
this plan, named for its creators, Senator Henry Cabot Lodge (R–MA) and 
Representative Edward Gossett (R–TX), the electors of the state would have 
remained in place, and rather than awarding all of the electoral votes to 
only the winner, the electoral votes would be allocated proportionally to the 
popular vote of that state. This amendment also would have required that 
the ticket with the most electoral votes would have to receive at least a 40% 
majority of all the votes. The amendment stated that if no ticket reached the 
necessary 40% threshold, a collaborative effort by the Senate and House 
would decide the winner from the two most successful tickets. 

This amendment passed through the Senate of the 81st Congress but died 
in the House. A lingering concern that ultimately doomed this amendment 
was best stated by Senator Robert A. Taft (R–OH), “[t]here is no doubt that 
the Republican Party would fare worse under this amendment than under the 
present system, other things being equal. This is because the Republicans 
would receive a small proportion of the electoral vote in the southern states 
than the Democrats would receive in the northern states. We would have 
been somewhat worse off in every election” (Taft and Wunderlin 2006: 50). 
This amendment was revisited again in 1955 and received support from the 
Senate Judiciary Committee, but died in the Senate under the opposition of 
Senator John F. Kennedy (D–MA). 

In 1956, Senator Hubert Humphrey (D-MN) proposed a new, unique 
constitutional amendment to the 84th Congress. His plan was not to 
eliminate the concept of electoral votes, but to drastically alter the way they 
were distributed. Of the 531 total electoral votes at the time, two would 



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HEATHER FREDERICK AND TERRANCE KIBLE

be given to the candidate who won the popular vote in each state, and the 
remaining 435 would be distributed proportionally to the candidates in the 
nationwide popular vote. This proposal passed the House of Representatives 
but did not survive its consideration in the Senate. 

Another attempt to reform the Electoral College arose following the 
presidential election of 1968. The third-party campaign of Governor George 
Wallace was successful enough to win 46 electoral votes, which fostered 
the concern that political parties may be willing to trade electoral votes for 
political concessions. In order to avoid this potential problem, Representative 
Emanuel Celler (D-NY) proposed a constitutional amendment to abolish 
the Electoral College and replace it with a true direct popular election. The 
only contingency that Representative Celler inserted was that the plurality 
winner would have to achieve at least 40% of the vote. If that percentage 
was not achieved by any candidate, a runoff election of the top two vote 
recipients would take place until the 40% minimum was achieved. 

This amendment passed through the House 338–70 and received public 
support from President Richard Nixon. The Celler Amendment, however, 
ran into a massive roadblock as it was introduced into the Senate Judiciary 
Committee, chaired by James Eastland (D–MS) and including members 
like Strom Thurmond (D–SC). After a bitter round of Judiciary Committee 
hearings, which included threats by Thurmond to filibuster the proposal, 
the Celler Amendment was voted out of committee 11–6 and was sent to 
the floor for a vote. Opposition to the amendment, led by Sam Ervin (D–
NC), Thurmond, and Eastland, claimed that the amendment would harm 
states’ rights, disadvantage the smaller states, undo the stability of the two-
party system, and ultimately encourage splinter parties, fraud, and intrusive 
national voting requirements. After long and bitter debates on the floor, two 
calls to invoke cloture failed, and the Celler Amendment died in the Senate 
(Keyssar 2009). 

An ally of the Celler Amendment, Senator Birch Bayh (D–IN) 
introduced a similar proposal to eliminate the Electoral College altogether 
and replace it with a direct national vote. Inspired by the close election 
of 1976 between Governor Jimmy Carter and President Gerald Ford, Bayh 
proposed his amendment in the Senate to much the same criticism that the 
amendment had received previously. A close vote in the Senate of 51–48 
ultimately doomed the Bayh reincarnation to failure, which deterred the 
House from even considering the issue.

Another attempt to eliminate the Electoral College and to institute a 
direct election of the president was proposed in the House of Representatives 
in 1989. The constitutional amendment received 338 positive votes and 
80 negative votes (Dahl 2003). Despite the amendment’s vast support in 
the lower chamber of Congress, it ultimately failed in the Senate due to 
a filibuster, despite the attempts of supporting senators , who rallied an 



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ELECTORAL VOTE ALLOCATION AND PENNSYLVANIA

insufficient 54 cloture votes (Johnson 2012: 38; Dahl 2003). Consequently, 
the amendment’s demise in the Senate led to its end.

After this series of attempted amendments, there have been at least 
38 different proposals to amend the Constitution concerning the Electoral 
College. Each one has called for the elimination of the Electoral College 
and its immediate replacement with a direct nationwide election. In 2009, 
there were three similarly worded proposals from members of Congress to 
abolish the Electoral College and implement the direct popular election of 
the president, including Senator Bill Nelson (D–FL), Representative Jesse 
Jackson, Jr. (D–IL) and Representative Gene Green (D–TX). In defense 
of his proposal, Senator Nelson stated, “It’s time for Congress to really 
give Americans the power of one-person, one-vote, instead of the political 
machinery selecting candidates and electing our president” (O’Brien 
2009). The numerous attempts of Senator Nelson and others to present 
constitutional amendments in Congress since the Bayh proposal have failed 
to make it past committee. The reason these amendments to the Constitution 
keep dying in committee remains unknown, so little discussion is provided 
for them after they are introduced. One theory for the lack of consideration 
of these amendments is that lawmakers who represent larger states believe 
that eliminating the Electoral College would forfeit their state’s significance 
in the presidential race. Another theory asserts that a direct election would 
cause rural areas to become irrelevant. 

The most traditional means to amend the Constitution enumerated 
under Article V is the passage of an amendment through two-thirds majority 
of both houses of Congress. If Congress were to pass an amendment, it 
would then be subject to ratification by three-fourths of the state legislatures.  
This method of proposing an amendment in one of the houses has become 
a reoccurring practice in the last half of the twentieth century. In the last 
60 years, there have been several proposals either to drastically reform 
the Electoral College or eliminate it completely, replacing it with a more 
democratic form of election.

However, representatives of large states believe that they benefit from 
the winner-take-all system of allocating electoral votes, and representatives 
of small states believe they benefit from the two-seat bonus (Grofman and 
Feld 2005: 13). Members of Congress, who would be initially involved in 
any attempts to change our system of selecting the president, are for the 
most part unwilling to risk undermining the power of their state under the 
current system. 

The advantage that small states receive in the Electoral College due to 
the malapportionment in the House and especially in the Senate precludes 
any chance of reforming the Electoral College through constitutional 
amendment. Because the amendment process requires a two thirds vote 
in both houses of Congress, only 34 senators are necessary to prevent a 



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HEATHER FREDERICK AND TERRANCE KIBLE

proposed amendment from moving on to the states for ratification. “Using 
the 2000 census data, the senators representing only 7.28% of the nation’s 
population can block an amendment” (Johnson 2012: 38). Even if both 
houses of Congress could manage to muster the two thirds majority to fulfill 
the first stage in the amendment process, it is actually more unlikely that the 
second stage of the amendment process could be completed—ratification by 
three fourths of the states. “Again using 2000 Census data, the legislatures 
from the thirteen smallest states can block an amendment from passing 
despite the fact that their legislatures represent only a minute 3.87% of the 
nation’s population” (Johnson 2012: 38). Therefore, prospects of abolishing 
or reforming the Electoral College through constitutional amendment are 
virtually nonexistent. Proponents of reform have had to resort to other 
methods of attempting to change the way the President of the United States 
is selected.

However, scholars, pundits, and politicians disagree about which states 
would be disadvantaged by the elimination of the Electoral College. Over 
70% of Americans support adopting a nationwide, popular election of 
the president, avoiding the dominant focus “on only a few ‘battleground’ 
states while the interests of the rest of the nation are ignored” (Dean 
2007). Regardless of its popularity with the American public, the political 
ramifications for the states losing any advantage they have due to the system 
in place now makes eliminating the Electoral College completely doubtful 
at best (Hasen 2007). 

Although the people are not granted the power to vote for the president 
under the Constitution, American citizens widely believe the president 
represents every person equally; therefore, it is logical to believe that every 
American voter should have their presidential vote count equally (Amar 
2006). This is one of the rationales for the National Popular Vote Compact. 
Because proposing and/or ratifying a constitutional amendment faces so 
many obstacles at the federal level, John Koza and Barry Fadem founded 
National Popular Vote in 2006 (Johnson 2012: 68; Sampson 2008), “an 
interstate compact in which the compacting states agree to award their 
electoral voters to the winner of the national popular vote, effectively 
converting the Electoral College into a direct election for president” (Muller 
2012: 1238). This reform proposal would not require amending the U.S. 
Constitution because states would form a compact stating that they agree 
to allocate all of their electoral votes to the presidential candidate with the 
highest number of votes nationwide (Amar 2006). The agreement, officially 
called “the National Popular Vote Act,” would formally go into effect once 
enough states comprising a majority of the Electoral College adopt the 
proposal. The ultimate result of this compact would allow the presidential 
candidate with the highest percentage of the popular vote nationally to be 
awarded all of the electoral votes from the compacting states.



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ELECTORAL VOTE ALLOCATION AND PENNSYLVANIA

Proponents of the interstate compact reform idea argue that when 
enough states enter into the compact to comprise a majority of electoral 
votes, the unrepresentativeness of state citizens’ votes will be eliminated 
(Johnson 2012: 78), presidential candidates would be forced to compete for 
every vote in every state equally (Haddock 2004), “the influence of small 
states and other sparsely populated areas” will be diminished (Patel 2012: 
9), and reliably red and blue states would not be ignored. Because each 
citizen’s vote would count equally, “state boundaries” would “not skew 
the power of the voter. This allows minority voters in each of the states to 
aggregate their votes with one another, potentially tipping the election in the 
favor of their candidate” (Johnson 2012: 61).

Currently, eight states—Maryland, Hawaii, Illinois, New Jersey, 
Washington, Massachusetts, Vermont, New York, Rhode Island, and 
California—and Washington, D.C. have successfully passed the National 
Popular Vote Act (National Popular Vote 2014). Together, these states only 
account for 165 total electoral votes, which places them 105 votes short of 
compact implementation. The progress of this reform proposal has been 
steady. Since its origin in 2006, the movement has amassed 61% of the 
electoral votes needed to go into effect. Additionally, the bill has passed 
both Houses in CO; another ten states have passed the bill through one 
house (CT, DE, ME, MI, NC, AR, NM, NV, OK, and OR); nine more states 
have passed the bill through one committee (WV, KY, AL, LA, MS, MT, 
MN, IA, and AK); 11 states have conducted committee hearings regarding 
the bill (NH, PA, VA, WI, MO, KS, NE, SD, ND, UT, and AZ); and the 
remaining nine states have introduced the National Popular Vote Bill (OH, 
IN, FL, GA, SC, TN, TX, WY, and ID) (National Popular Vote 2014). 

However, there are fundamental political issues that arise with this reform 
idea. Some argue that the proposal “would essentially require all 50 states to 
sign on board to become effective. If any state were to continue to adhere to 
the current winner-take-all approach, then other states could not reasonably 
be expected to adopt a self-harming proportional approach. And this kind 
of prisoner’s dilemma often proves an intractable obstacle to action” (Amar 
2006). The prisoner’s dilemma is not, however, applicable to the National 
Popular Vote Act. This Electoral College reform negates the possibility of 
such a dilemma by allowing “as few as 11 states” with an Electoral College 
majority to override the existing electoral system regardless of how the 
remaining states act (Amar 2006). If these 11 states command a majority of 
the votes in the Electoral College—as California (55), Texas (38), Florida 
(29), New York (29), Illinois (20), Pennsylvania (20), Ohio (18), Georgia 
(16), Michigan (16), North Carolina (15), and New Jersey (14) would 
(U.S. National Archives and Records Administration 2010)—and pledge to 
award their votes based on the national popular vote, the electoral votes of 
nonparticipating states will do nothing to sway the outcome. 



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HEATHER FREDERICK AND TERRANCE KIBLE

Another criticism of the National Popular Vote Act is that interstate 
compacts were intended to settle disputes among regional state actors, 
not as a substitute for failure to enact national policy (Johnson 2012: 67). 
However, Robert W. Bennett, Akhill Reed Amar, and Vikram David Amar 
have argued that interstate compacts could be used to bypass the need for 
federal legislation (Pincus 2009: 520). In fact, the Compact Clause of the 
Constitution (Art. I, sec. 10), on which the National Popular Vote Act is 
predicated, requires congressional approval if the issue under compact 
empowers state governments over the federal government (Patel 2012: 3; 
Johnson 2012: 41-42, 83)

There continue to be strong arguments on either side of the issue of 
whether the National Popular Vote Initiative would require congressional 
approval. Patel (2012) argues the Compact

is likely to affect the power of states in terms of their influence 
on a presidential election. This factor seems unlikely to trigger 
a political-power limitation, however, as it relates to the power 
among the states, not to the federal government’s power over any 
given state. As such, the Compact does not seem to “encroach upon 
or interfere with the just supremacy of the United States,” and thus 
would fall outside the scope of the political power limitation (Patel 
2012: 9).

Because passing a constitutional amendment to reform the Electoral 
College is unfeasible, the interstate compact may be the best and most 
effective manner of reforming the presidential selection system in the United 
States.  “An interstate compact cannot be blocked by forty senators like an 
amendment and it can provide the same change. Instead, it unites states 
in an agreement to exercise their previously granted powers in a different 
manner” (Johnson 2012: 50). Additionally, many argue that the Compact 
does not require congressional approval because it does not bestow any 
powers to states that did not exist prior to the Compact. The Constitution 
guarantees states the power to decide how electors are chosen and thus 
allocated, therefore federal power is in no way diminished by states entering 
into this agreement.

Yet another idea for reforming the presidential election system would 
be for every state to adopt the method by which Maine and Nebraska 
currently allocate their electoral votes—the district method. This method 
allows a presidential candidate to receive one electoral vote for winning a 
plurality of the popular vote in each congressional district in the state, with 
a two-vote bonus for the candidate who wins a plurality of the popular vote 
statewide. 

The district method of allocating electoral votes certainly allows each 
voter’s selection of presidential candidate to count more than the winner-



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ELECTORAL VOTE ALLOCATION AND PENNSYLVANIA

take-all system, addressing “the problem of the tyranny of the majority 
on a statewide basis, allowing individuals in districts more power in the 
election process. Breaking down the election into many district-based 
segments allows each individual more authority in determining the results 
of the election” (Johnson 2012: 23-24). California proposed such a reform 
in the Presidential Election Reform Act, a state referendum, before the 2008 
election (Thomas, et al. 2012: 2).

However, mathematicians have shown that the adoption of this plan 
nationwide would disadvantage the Democratic Party and favor Republican 
presidential candidates. 

Indeed, if every state followed the Maine/Nebraska approach in 
2000, Bush would have beaten Gore in the electoral college by a 
margin of 289 to 249, which [is] much larger than the margin by 
which Bush actually won. This result seems counterintuitive, give 
that Gore—not Bush—won the nationwide popular vote. While 
the move toward more equitable distribution within each state 
would seem analytically a step in the direction of a true nationwide 
popular election, the counting of results on a state-by-state basis 
creates numerical anomalies (Amar 2004).

Other critics of the district method argue that presidential candidates 
would campaign only in highly competitive congressional districts, thereby 
ignoring other voters and failing to solve the same problem most have with 
the winner-take-all system of allocating electoral votes (Thomas et al. 2012: 
3). In fact, in a quantitative study, researchers found “[t]he direct popular 
vote and the current electoral college are both substantially fairer compared 
to those alternatives where states would have divided their electoral votes by 
congressional district” (Thomas et al. 2012: 1).

Another proposal to reform our presidential election system suggests 
that states should agree to allocate their electoral votes proportionally to the 
popular vote in the state. For example, if Candidate A received 60% of the 
popular vote in a state, she would then receive 60% of that state’s electoral 
votes. Critics of this plan argue that this plan would encourage third-party 
candidates to enter the presidential contest, knowing that even 5% of a 
state’s popular vote would result in a proportional 5% of the state’s electoral 
votes. This proposal could also result in no candidate winning a majority 
of electoral votes and throwing the presidential election into the House, 
allowing minor parties to demand concessions from the major parties (USA 
Today 2004). This idea was proposed as a direct democracy initiative in 
Colorado in 2004. The initiative was ultimately defeated, but critics argued 
that Colorado stepping out and adopting the plan before other states 
also agreed to do so would decrease the state’s influence in choosing the 
president and amount to “unwise unilateral disarmament” (Amar). Perhaps 



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HEATHER FREDERICK AND TERRANCE KIBLE

a larger issue with this initiative is its likely demise in the judicial system. 
Because the U.S. Constitution permits only the state legislatures to decide 
how electors are appointed, a plan initiated and adopted by the voters of a 
state, although very democratic, would most likely be ruled unconstitutional 
by the United States Supreme Court.

Initiatives of such nature have not only been propagated within the 
federal legislature and through isolated state proposals, but Pennsylvania has 
also attempted to reform their method of electoral vote allocation internally 
through reformations of proportional representation, congressional district-
based allocation, and the National Popular Vote Act. Representative 
Mark Cohen (D-Philadelphia) and Representative Thomas Creighton 
(R-Lancaster) sponsored House Bill 1270, the Pennsylvania version of the 
National Popular Vote Interstate Compact along with 33 other members of 
the Pennsylvania House of Representatives as co-sponsors (Pennsylvania 
General Assembly). On 12 March 2012, the Pennsylvania House Majority 
Policy Committee held a public hearing on Creighton’s “legislation to 
change the way Pennsylvania casts its Electoral College votes....by aligning 
them with the national popular vote” (Pennsylvania General Assembly). 
Since this hearing and referral to committee, no other action has been taken 
(National Popular Vote 2014).

The National Popular Vote Interstate Compact was introduced into 
Pennsylvania’s House of Representatives as the Agreement Among the States 
to Elect the President by National Popular Vote and referred to committee 
(H. 1270, 2011). As proposed by Representative Creighton, the reason for 
this bill would be to elect the president through an indirect reflection of the 
national popular vote. The Chief Election Official of each affiliated state “shall 
designate the presidential slate with the largest national popular vote total as 
the ‘national popular vote winner’” (H. 1270, 2011). A state’s allocation of 
electoral votes to the national popular vote winner must be announced as an 
official statement to the other state’s officials in the compact within 24 hours 
of the presidential electors casting their ballots (H. 1270, 2011). 

Questions have been raised about the viability of the National Popular 
Vote Interstate Compact in the occurrence of a tie; however, in the event 
of a tie, the bill contains specific legislation that proscribes the reversion 
of each state to the presently functioning form of electoral vote allocation 
(the winner-take-all method) (H. 1270, 2011). The withdrawal from the 
compact requires a state to repeal the bill at least six months prior to the 
end of a president’s term, and the entire bill shall be deemed invalid if the 
Electoral College is abolished (H. 1270, 2011). In order for this bill to be 
implemented, the accumulation of the states within said compact must 
possess a majority of the electoral votes (H. 1270, 2011).

Prior to this bill, Pennsylvania attempted to reform their method of 
allocation multiple times. These attempts have included both a multitude of 



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initiatives to implement the National Popular Vote Interstate Compact and an 
effort to allocate Pennsylvania’s electoral votes by means of congressional 
districts (Pennsylvania General Assembly). The former of these efforts 
for reform was proposed as House Bill 1028 (05 April 2007), House Bill 
841 (10 March 2009), and Senate Bill 1116 (17 June 2011) (Pennsylvania 
General Assembly). Representative Cohen, one of two sponsors of the most 
current reform proposal (House Bill 1270), coincidentally sponsored both 
House Bill 1028 and 841 (Pennsylvania General Assembly). Like House 
Bill 1270, no other bill proposed in either House has made it to the floor for 
a vote (Pennsylvania General Assembly).

Although these bills have lacked any genuine sense of viability, the 
recent movement to adopt the district method of allocating electoral votes 
in the Pennsylvania state legislature has received much attention from both 
advocates and adversaries. Then-Senate Majority Leader, Senator Dominic 
Pileggi (R-Delaware) “proposed that Pennsylvania’s electoral votes be 
allocated by congressional district” on 12 September 2011 (Pennsylvania 
General Assembly). For Senator Pileggi, the goal of such a reformation 
is to not only redefine the method through which Pennsylvania allocates 
its electoral votes, but also to proscribe said votes in a manner that more 
closely reflects the state’s popular vote (Greenblatt 2013). Similar to 
Senator Pileggi’s original plan, an amendment to P.L. 1333, No. 320 has 
been introduced by Representative Robert Godshall (H. 94, 2013). This 
plan would not only delegate the responsibility of allocating Pennsylvania’s 
electoral votes to each congressional district, but also grant an additional 
two electoral votes to the presidential nominee who received the greatest 
number of votes statewide (H. 94, 2013).

Senator Pileggi rescinded his support of this reform proposal in order 
to appease criticism from his constituents and peers (Greenblatt 2013). 
Objections to Senator Pileggi’s proposal often embodied the sentiments of 
corrupt gerrymandering practices (Greenblatt 2013). If this bill were to be 
ratified and enacted, the Executive Branch would be subjected to the same 
practices that have historically disenfranchised voters through means of 
packing and cracking. 

More recently, Senator Pileggi introduced Senate Bill 538 to the 
Pennsylvania state legislature, which has been referred to the Senate 
Government Committee (Lynch 2013). Senate Bill 538 would allocate 
Pennsylvania’s electoral votes proportionally, rather than the current winner-
take-all system (Lynch 2013). As proposed, this amendment to P.L. 1333, 
No. 320 would modify the current system by means of the following criteria 
(Skelley 2013). The nominee for the Office of President of the United States 
who wins the plurality of the Statewide popular vote shall be awarded two 
presidential electors (S. 538, 2013). The remaining electors shall be divided 
between presidential nominees proportionally to the statewide popular vote, 



73

HEATHER FREDERICK AND TERRANCE KIBLE

with the electoral vote total rounded up to the nearest whole number (S. 
538, 2013; Skelley 2013). If the total number of electoral votes required 
to properly allocate them proportionally exceeds the amount available, the 
candidate who received the smallest percentage of the popular vote shall 
be denied one electoral vote; this process continues for each candidate in 
chronological succession (excluding the recipient of the plurality) until the 
required amount of electoral votes is achieved (S. 538, 2013). This bill, 
along with the others introduced, has failed to reach floor of either chamber. 
Consequently, within each committee, the bills are motionless and progress 
is stationary. Such proposals do not seem to be gaining much attention 
beyond the minimal press coverage expected from a revolutionary bill. 

The presidential electoral reforms proposed in Pennsylvania and 
explained above may in fact improve the ways by which Americans select 
their president. However, Pennsylvania legislators and political activists 
who have the best interest of the state in mind should abandon all attempts 
to reform the method by which our state allocates electoral votes and 
realize that the current winner-take-all system benefits our state. Because 
Pennsylvania is considered to be a swing state3, we benefit more from the 
status quo. 

Because the proposal in the Pennsylvania General Assembly to adopt 
the district method for allocating electoral votes was ultimately brief and 
unsuccessful regardless of the press attention received by the proposal, we 
begin with the argument that this reform method would disadvantage our 
state. Pennsylvania should reject the district method of allocating electoral 
votes because the state would “lose attention and clout if fewer of its 
electoral votes were in play” (Thomas et al. 2012: 2). Under the winner-take-
all system, Pennsylvania’s electoral votes are a huge prize for presidential 
candidates. Changing to a district method like Maine and Nebraska would 
merely result in presidential candidates ignoring Pennsylvania voters and 
the issues of interest to Pennsylvanians. Also, “there was the possibility that 
the change of focus to the Congressional district level for president would 
similarly affect other elections down the ticket, putting once-safe state-level 
seats into play again” (Thomas et al. 2012: 2).

 Yet again, the district method does not solve the problem of not 
counting citizens’ votes at the national level. If Pennsylvania under the 
winner-take-all system provides all of its electoral votes to the Democratic 
presidential candidate, the votes of Republicans in the state have not been 
counted at the national level. Transforming our method of allocating votes 
to a district plan merely reduces the same problem to a congressional district 
level rather than a statewide level. For example, if the Third Congressional 
District of Pennsylvania awarded a plurality of its votes to the Republican 
presidential candidate, thereby providing that candidate with one electoral 
vote, the Democratic voters in that district would not have the benefit of 



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ELECTORAL VOTE ALLOCATION AND PENNSYLVANIA

having their votes counted at the national or state level. The same problem 
of uncounted votes exists, just on a smaller platform.

Perhaps the greatest danger of instituting the district method of 
allocating electoral votes is the potential for more serious gerrymandering 
problems within the state (Thomas et al. 2012: 12). Indeed, since minority 
districts are more likely to be packed districts (and packed tightly), the 
district method may be unconstitutional too because it disenfranchises 
minority voters and violates the Voting Rights Act.

A far more likely scenario in Pennsylvania is that we would seriously 
consider entering the National Popular Vote Act. This reform, like the 
district method, would be detrimental to the importance of Pennsylvania 
in presidential politics. The Compact would cause Pennsylvania as a swing 
state to lose its importance because 

the overall national vote total will matter, and proponents of the 
Compact believe that this will lead politicians to more equally 
value votes across all fifty states. On the other hand, a national 
popular vote system could lead presidential candidates to focus on 
states or cities that are highly populated because those areas would 
have the most possible votes (Patel 2012: 6).

In essence, not only would Pennsylvania lose its importance as a battleground 
state during presidential elections, millions of rural Pennsylvanians would 
also be ignored so that presidential candidates could focus on the heavily 
populated areas of the state and the country. It is, however, worth noting 
that the current electoral system is often seen as neglectful of rural voters 
and states. Under the National Popular Vote Act, the importance shifts from 
winning states to winning individual votes. So while rural voters and rural 
states might be ignored in the current state-centered electoral model because 
of their sparse numbers and limited effect on state-by-state outcomes, the 
National Popular Vote Act would actually benefit these rural voters and 
states by allowing their aggregate national power to be felt.

The next criticism of the Compact reform for Pennsylvania is that the 
Guarantee Clause of the Constitution provides that “[t]he United States shall 
guarantee to every State in this Union a Republican Form of Government.” 
Kristen Feeley 

argues that the Guarantee Clause prohibits the Compact because 
the Compact undermines process federalism in presidential 
elections. Ms. Feeley reasons that, by mandating that member 
states allot their electoral votes for the national popular vote 
winner, the Compact not only silences the voice of the nonmember 
states, but also prohibits member states from making their own 
decisions (Patel 2012: 8). 



75

HEATHER FREDERICK AND TERRANCE KIBLE

This silencing of nonmember states is a serious concern. There is potential 
under the National Popular Vote Act for only 11 states to fundamentally 
restructure the selection process of the President of the United States 
regardless of the desires of the citizens in the other 39 states (Johnson 2012: 
67; Ross 2004). It is worth noting, however, that the interests of voters in 
nonmember states would not be ignored. Under the National Popular Vote Act, 
these voters in nonmember states would still be courted for their votes. The 
Constitution empowers states to determine the time and method of elections; 
the Compact would necessitate the federal government enacting election laws 
to ensure uniformity throughout the compacting states. This would include 
“the manner in which elections are orchestrated, ballots are counted, and 
recounts are instituted” (Johnson 2012: 78). A problem such as the recount 
during the 2000 presidential election in Florida, under the National Popular 
Vote Act, would require a recount of every vote in the country.

The implementation of the interstate compact reform would also 
require the federal government to enact legislation dealing with voter 
eligibility. This reform is proposed due to the improbability of passing a 
constitutional amendment; therefore, the states would continue to have the 
power to decide which of their people are eligible to vote. If the winner of 
the presidency were predicated on the winner of the national popular vote, 
states could attempt to increase their influence in the election by broadening 
their definition of who is eligible to vote—“including definitions based on 
age, felon status, alien status, and mental incapacity” (Muller 2012: 1241). 
If states attempted to “cheat the system” by changing their voter eligibility 
laws, then a uniform federal law would be necessary to determine who is 
permitted to vote. 

However, creating a federal standard to determine voter eligibility 
would present its own problems by disenfranchising voters in certain states. 
If, for example, the federal government

decided to disenfranchise a set of ex-felons, it would need to define 
felony by referring to the different crimes in the fifty states, and it 
would disenfranchise individuals in one jurisdiction for conduct 
that would not disenfranchise them in another. A federal standard 
would almost certainly disenfranchise individuals currently given 
the right to vote, as the varying eligibility standards would find a 
political compromise in the center, enfranchising voters in some 
states while disenfranchising them in others (Muller 2012: 1242).

Therefore, it is clear that enacting the National Popular Vote Act would 
create serious problems in terms of voter eligibility, constitutional powers, 
and our federal system of government.

The final reason why neither Pennsylvania nor any state should entertain 
adoption of the National Popular Vote Act is that the reform ultimately 



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ELECTORAL VOTE ALLOCATION AND PENNSYLVANIA

subverts the United States Constitution. Changing the Electoral College 
through an interstate compact rather than through the formal amendment 
process of the Constitution undermines our entire system of government. 
The Founders created a difficult but not impossible method for amending 
the Constitution: a proposal by two-thirds of both houses of Congress and 
ratification in three-fourths of the states. States adopting this reform are 
attempting to change through an interstate compact what they are unable to 
change through the supermajority required of a constitutional amendment. 
Certainly, this was not what the Framers intended when including the 
Compact Clause in the Constitution.

There are inherent issues with the wholesale elimination of the Electoral 
College. Opponents of reform argue that Americans would essentially be 
“trading an institution whose pluses and minuses we know for one whose 
evils are yet to be determined” (Grofman and Feld 2005: 12). It would be 
difficult to determine exactly what issues would arise from reform. We 
could be replacing the Electoral College with a system even more difficult 
to understand, predict, or deem as fair.

Despite many attempts and plans to reform the way America chooses its 
president, none of the proposals has been adopted thus far. The fact remains, 
however, that most Americans feel that the current Electoral College system 
presents problems of unfairness and inequality. Critics continue to argue 
that the Electoral College violates the constitutional principle of “one-
person, one-vote” instilled by the Supreme Court’s interpretation of the 
14th Amendment’s Equal Protection Clause (Muller 2012: 1241).  This 
objection, however, cannot be sustained due to the fact that the United 
States Constitution does not provide American citizens with the right to 
vote for president. Rather, the Constitution empowers state legislatures to 
determine how electors are chosen. 

The inherent problems with the current method by which most states 
allocate their electoral votes are undeniable. However, the winner-take-all 
method confines any necessary recounts to one state or one county within 
a state and creates clear winners and losers by exaggerating the margin of 
victory. The Electoral College “promotes stability in the election of the 
President by providing a clear and official winner for America. The Electoral 
College increases the spread in the election results signaling a clear winner” 
(Johnson 2012: 30). 

The benefits of the current winner-take-all system of allocating votes 
in the Electoral College for the country and especially for Pennsylvania 
far outweigh the potential benefits and virtually certain disadvantages of 
adopting Electoral College reform through proportional methods, district 
methods, or an interstate compact. In order for Pennsylvania to maintain 
its importance in presidential electoral politics as well as its support for 
and endorsement of our federal system of government and the Constitution, 



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HEATHER FREDERICK AND TERRANCE KIBLE

Pennsylvania citizens, activists, and legislators are encouraged to think 
about the ramifications of reform when the current system, while not 
perfect, is clearly most advantageous.

Notes

 1 The constitutional language governing the Electoral College has not changed since 
the 12th Amendment was ratified in 1804. However, states continued to experiment with 
different methods of awarding electoral votes, with the winner-take-all system achieving 
universal use by the 1830s (Richie and Levien 2013:). Maine and Nebraska switched to the 
Congressional District Method in 1972 and 1996, respectively (The Center for Voting and 
Democracy 2009).

 2 Nebraska and Maine are the only states that allocate their electoral votes by 
congressional district, rewarding the two “bonus” electoral votes to the overall winner of the 
state.

 3 Pennsylvania has been considered a battleground, swing, or “purple” state for many 
years. Although the state was considered a weak Democratic state in the 2012 presidential 
election, we maintain that our Republican controlled state legislature as well as the slight 
margin of victory for presidential candidates in Pennsylvania through several election cycles 
ensures our continuation as a swing state.

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