If we kept the Electoral College but eliminated winner-take-all, the popular candidate would win. [View all]

[pnwmom]

There is nothing in the Constitution that requires winner-take-all. That didn't happen till 1824, another election won by a popular vote loser.

The A.G.'s of non-swing states should sue on the grounds that our present Electoral College system denies "one person, one vote." It makes some votes -- those in the swing states -- more valuable than others.

BUT it is important that all states do this at once, which is why this would probably require a SCOTUS decision. Otherwise, states that switched to proportional representation would lose influence in the Electoral College.

http://www.fairvote.org/how-the-electoral-college-became-winner-take-all

The election of 1824 is most famous for the "corrupt bargain," a deal in the House of Representatives that gave John Quincy Adams the presidency despite his winning fewer popular and electoral votes than Andrew Jackson. But 1824 was also significant for another reason: it was the first election in which the majority of states used a statewide winner-take-all voting method for choosing their presidential electors.

It is a system that now seems like a fundamental part of the American democracy. Presidential candidates compete to win states, which is how they get votes in the Electoral College. The U.S. Constitution does not mandate that system, however. Instead, it is left up to the states to determine how they select their representatives in the Electoral College. For the first 13 presidential elections, spanning the first four decades of the history of the United States, states experimented with many different electoral systems.

The shift to statewide winner-take-all was not done for idealistic reasons. Rather, it was the product of partisan pragmatism, as state leaders wanted to maximize support for their preferred candidate. Once some states made this calculation, others had to follow, to avoid hurting their side. James Madison's 1823 letter to George Hay, described in my earlier post, explains that few of the constitutional framers anticipated electors being chosen based on winner-take-all rules.