In 1966, Attorney General David P. Buckson filed a lawsuit on behalf of the state of Delaware against New York (and other states) concerning the use of the winner-take-all rule in presidential elections. Under the winner-take-all rule (also called the "unit rule" or "general ticket" system), all of a state's electoral votes are awarded to the candidate who receives the most popular votes in each separate state.

It is sometimes asserted that the current system of electing the President is advantageous to low-population states. Small states benefit from the current system, it is argued, because each state receives a bonus of two electoral votes in the Electoral College. The 13 smallest states (i.e., those with three or four electoral votes) have 8% of the electoral votes, but just 4% of the population of the United States.

In reality, the current system is especial disadvantageous to the nation's least populous states. The reason is that political power does not flow from the number of electoral votes that a state possesses, but from whether or not the state is a closely divided "battleground" state. Under the prevailing statewide "winner-take-all" system of allocating electoral votes in presidential elections, all of a state's electoral votes are awarded to the candidate receiving the most popular votes within each state. The winner-take-all system forces presidential candidates to concentrate their campaigns on a handful of closely divided "battleground" states, while neglecting voters of both parties in all the non-competitive states.

Over two-thirds of the states in the United States are ignored in presidential elections because they are not battleground states. However, 92% (12 of the 13) smallest states fall into the unenviable category of spectator states. Over the past five presidential elections, Idaho, Montana, Wyoming, North Dakota, South Dakota, and Alaska have regularly gone Republican, whereas Rhode Island, Delaware, Hawaii, Vermont, Maine, and DC have regularly voted Democratic. (New Hampshire is the one small state, among the 13, that is a battleground state).

The 12 non-competitive small states together contain 11 million people. Because of the two electoral-vote bonus that each state receives, the 12 non-competitive small states have 40 electoral votes. However, the two-vote bonus is entirely illusory. Ohio has 11 million people and has "only" 20 electoral votes. The 11 million people in Ohio are the center of attention in presidential campaigns, while the 11 million people in the 12 non-competitive small states are irrelevant. Nationwide election of the President would make each of the voters in the 12 smallest states as important as an Ohio voter. In fact, the vote of every person in the United States would become equally important under the proposed compact.

The fact that the bonus of two electoral votes is an illusory benefit to the small states has been widely recognized for some time. In 1966, the State of Delaware led a group of 12 predominantly low-population states (North Dakota, South Dakota, Wyoming, Utah, Arkansas, Kansas, Oklahoma, Iowa, Kentucky, Florida, Pennsylvania) in suing New York in the U.S. Supreme Court. The 12 states argued that New York's use of the "winner-take-all" rule effectively disenfranchised voters in their states. As the State of Delaware said in its brief:

"The suit challenges the constitutionality of the respective state statutes employing the 'general ticket' or 'state unit-vote' system, by which the total number of presidential electoral votes of a state is arbitrarily misappropriated for the candidate receiving a bare plurality of the total number of citizens' votes cast within the state."

The Court declined to hear the case (presumably because of the well-established constitutional provision that the manner of awarding electoral votes is exclusively a state decision). Ironically, New York is no longer an influential battleground state (as it was in 1966). Today, New York voters suffer the very same disenfranchisement as the 12 non-competitive low-population states. Today, a vote in New York is equal to a vote in any of the 12 small non-competitive states — all are essentially meaningless in presidential elections. In a 1979 Senate speech, Senator Henry Bellmon (R–Oklahoma) described how his views on the Electoral College had changed while he had served as Governor, Senator, National Campaign Director for Richard Nixon, and a member of the American Bar Association's commission studying electoral reform.

"While the consideration of the electoral college began—and I am a little embarrassed to admit this—I was convinced, as are many residents of smaller States, that the present system is a considerable advantage to less populous States such as Oklahoma …. [A]s the deliberations of the American Bar Association Commission proceeded and as more facts became known, I came to the realization that the present electoral system does not give an advantage to the voters from the less populous States. Rather, it works to the disadvantage of small State voters who are largely ignored in the general election for President.

As the Idaho State Journal editorialized in 2004,

"As we enter of the home stretch of the quadrennial horse race known as the presidential election, it's time to remember that this is an election for the president of the United States of America — all 50 states, not an election for the president of the Swing States of America."

A nationwide popular vote is the only way to make every vote equal throughout the United States. In fact, it is the only way to provide the non-competitive small states with any influence in presidential elections.

LINKS

Delaware's Complaint (pages 1-46)
Delaware's Complaint (pages 47-96)
New York's Response
Delaware's Petition for Re-Hearing