The district approach would magnify the shortcomings of the current statewide winner-take-all system.

• ACCURACY: The district approach would less accurately reflect the national popular vote than the current system and would increase the chance of electing a President who did not win the national popular vote.
• COMPETITIVENESS: The district approach would reduce the already small percentage of the people of the country who are relevant in presidential elections. Seven-eighths of the people of the country live in non-competitive "spectator" congressional districts, compared to two-thirds who live in non-competitive "spectator" states. Voters in only a few of Pennsylvania's 18 congressional districts would matter in presidential elections under the district approach.
• EQUALITY: The district approach would not make every vote equal.

As to accuracy, when Bush lost the national popular vote in 2000, he nonetheless won 55% of the country's 435 congressional districts. In 2004, Bush's won 50.7% of the popular vote, but 59% of the districts. If the district approach were implemented selectively in a large state (say, in Pennsylvania, but not Texas), the overall system would be less reflective of the national popular vote than the current system and would increase the likelihood of electing a President who did not win the national popular vote.

As to competitiveness, candidates have no reason to campaign in areas where they are comfortably ahead or hopelessly behind. Nationally, there are only about 55 congressional districts that are competitive in presidential elections.

Under the district approach, every vote would not be equal. Congressional districts are created with equal population, but not an equal number of voters. There were, for example, three times more votes cast for President in Congressman Mike Thompson's district in northern California in 2006 than in Jim Costa's district in the Central Valley or in Loretta Sanchez's district in Orange County.

As John Samples of the Cato Institute recently pointed out in a panel discussion at the National Conference of State Legislatures, the district approach would extend the effects of gerrymandering of congressional districts to the highest office in the land. Video

The congressional district plan is clearly constitutional. In the 1892 case of McPherson v. Blacker (1892), the U.S. Supreme Court upheld Michigan's switch from the winner-take-all system to a system in which one electoral vote was awarded to the candidate who received the most votes in each congressional district (and in which the state's remaining two electoral votes were awarded to the candidate who received the most votes in each of two special districts, each containing half of the state). The manner of conducting presidential elections is covered in Article II, Section 1, Clause 2 of the U.S. Constitution saying "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." The constitutional wording "as the Legislature thereof may direct" contains no restrictions. It does not encourage, discourage, require, or prohibit the use of any particular method for awarding the state's electoral votes. For example, the now-prevailing winner-take-all rule was used by only three states when the Founding Fathers went back to their states to organize the nation's first presidential election in 1789. It did not become prominent until the pre-Civil-War era — long after the Constitution was written and ratified and long after the Founding Fathers were dead. Maine enacted its congressional-district system in 1969, and Nebraska did so in 1992. The U.S. Supreme Court has characterized the authority of the states over the manner of awarding their electoral votes as "plenary" and "exclusive." States may allocate their electoral votes in any manner (provided, of course, that it does not violate some other section of the Constitution). The states have used a variety of methods in the past. Massachusetts has changed methods 11 times, and many other states have changed their methods three or four times. The district system was used in Michigan for the 1892 presidential election, but repealed in time for the 1896 election. This issue is discussed in detail in section 8.3 of the book Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote.

At any given time, there are usually bills in over a dozen of the state legislatures to allocate the state's electoral vote by congressional district.

Such bills occasionally pass one house of a state legislature. For example, such a bill was passed by the Democratic-controlled North Carolina Senate in 2007 (in a state that usually voted Republican in presidential elections) and was passed a few years ago by the Republican-controlled New York Senate (in a state that usually voted Democratic in presidential elections).

In California in 2007, an initiative petition was circulated to divide the state's 55 electoral votes by congressional district; however, the petition failed to get enough signatures to qualify for the June 2008 ballot.

If Pennsylvania awarded its electoral votes by congressional district as proposed in the September 2011 bill, the likely political outcome in the November 2012 presidential election would be that the Republican presidential candidate would win 12 district-level electoral votes and the Democratic nominee would win 8 district-level electoral votes. Two of Pennsylvania's 20 electoral votes would be awarded at-large to the candidate who received the most popular vote statewide. Thus, even if President Obama carried Pennsylvania (as Democrats have for the past six presidential elections), Obama would get only 8 electoral votes, while the Republican nominee would get 12 electoral votes.

Whatever the merits of the congressional-district approach, there is a prohibitive practical impediment associated with the adoption of this approach on a piecemeal basis by individual states. In 1800, Thomas Jefferson argued that Virginia should switch from its then-existing district system to the statewide winner-take-all system. Jefferson cited the political disadvantage suffered by states that divided their electoral votes in a political environment in which other states employed the winner-take-all approach. He said "while 10. states chuse either by their legislatures or by a general ticket [winner-take-all], it is folly & worse than folly for the other 6. not to do it." The now-prevailing statewide winner-take-all system became entrenched in the political landscape in the 1830s precisely because dividing a state's electoral votes diminishes the state's political influence relative to states employing the statewide winner-take-all approach. Suppose that 45 states chose to allocate their electoral votes by district, but the others did not. The states continuing to use the statewide winner-take-all system would then be the only states that would matter in presidential politics. The congressional-district approach only makes sense if 100% of the states adopt it. Moreover, if states started unilaterally adopting the congressional-district approach on a piecemeal basis, each additional state adopting the approach would increase the influence of the remaining states and thereby would increase the disincentive for the remaining states to adopt it. Thus, a state-by-state process adopting the congressional-district approach would bring itself to a halt. For more details, see sections 3.3 and 4.2 of the book Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote.