9.33.1 MYTH: The state-by-state winner-take-all rule prevents tyranny of the majority.
- Winner-take-all statutes enable a mere plurality of voters in each state to control 100% of a state’s electoral vote, thereby extinguishing the voice of the remainder of the state’s voters. The state-by-state winner-take-all rule does not prevent a “tyranny of the majority” but instead is an example of it. As Missouri Senator Thomas Hart Benton said in 1824, “This is … a case … of votes taken away, added to those of the majority, and given to a person to whom the minority is opposed.”
- It is impossible to discern any specific threat of “tyranny of the majority” that was posed by the first-place candidates in the four elections in which the Electoral College elected the second-place candidate to the Presidency (1824, 1876, 1888, and 2000).
- Under the American system of government, protection against a “tyranny of the majority” comes from specific protections of individual rights contained in the original Constitution and the Bill of Rights; the “checks and balances” provided by dividing government into three branches (legislative, executive, and judicial); the existence of an independent judiciary; and the fact that the United States is a “compound republic” in which governmental power is divided between two distinct levels of government—state and national.
Hans von Spakovsky has written:
“The U.S. election system addresses the Founders’ fears of a ‘tyranny of the majority,’ a topic frequently discussed in the Federalist Papers. In the eyes of the Founders, this tyranny was as dangerous as the risks posed by despots like King George.” 
State winner-take-all statutes enable a mere plurality of voters in each state to control 100% of a state’s electoral vote, thereby extinguishing the voice of all the other voters in a state.
Suppressing the voice of a state’s minority is, by definition, an example of “tyranny of the majority.” The state-by-state winner-take-all rule does not prevent a “tyranny of the majority” but instead is an example of it.
In 1824, Missouri Senator Thomas Hart Benton said the following about the winner-take-all rule in a Senate speech:
“The general ticket system, now existing in 10 States was the offspring of policy, and not of any disposition to give fair play to the will of the people. It was adopted by the leading men of those States, to enable them to consolidate the vote of the State. …The rights of minorities are violated because a majority of one will carry the vote of the whole State. … This is … a case … of votes taken away, added to those of the majority, and given to a person to whom the minority is opposed.” [Emphasis added]
The winner-take-all rule treats all the voters who did not vote for the first-place candidate as if they had voted for the first-place candidate.
In 2012, 56,256,178 (44%) of the 128,954,498 voters had their vote diverted by the winner-take-all rule to a candidate they opposed (namely, their state’s first-place candidate).
Table 9.45 shows the number of voters who opposed the candidate who received the most votes in each separate state in 2012. Columns 2 through 5 show the number of votes cast in each state in 2012 for Barack Obama (Democrat), Mitt Romney (Republican), Gary Johnson (Libertarian), and Jill Stein (Green). Column 6 presents the number of votes received by the other 22 minor-party and independent candidates that were on the ballot in 2012 in at least one state (and write-in candidates). Column 7 shows the total vote for each state.
Column 8 of table 9.45 shows the number of voters who did not vote for the candidate who received the most votes in each state. Taking Alabama as an example, former Massachusetts Governor Romney received the most popular votes in the state (1,255,925 out of a total of 2,074,338 votes). However, a total of 818,413 other voters in Alabama did not favor Romney, but instead voted for President Obama, former New Mexico Governor Gary Johnson, Dr. Jill Stein, or one of the other minor-party candidates. Nonetheless, the winner-take-all rule diverted the 818,413 votes cast for Obama, Johnson, Stein, and other minor-party candidates and treated them as if they had been cast for Mitt Romney.
Table 9.45 Votes diverted by the winner-take-all rule in 2012.
The candidate receiving the most popular votes nationwide did not win the Presidency in four of our nation’s 57 presidential elections.
If the winner-take-all rule protects the nation against a “tyranny of the majority,” it is appropriate to inquire as to what specific threat of “tyranny” was posed by the first-place candidate in the four elections in which the Electoral College elected the second-place candidate (1824, 1876, 1888, and 2000)?
What “tyranny” did the winner-take-all rule prevent by not giving the White House to the candidate receiving the most popular votes nationwide in 1888 (Grover Cleveland) and instead installing the second-place candidate (Benjamin Harrison)?
If Andrew Jackson presented the threat of “tyranny” in 1824 (when the Electoral College denied him the Presidency), why did Jackson not present an equal threat in 1828 and 1832 (when he was elected by the Electoral College)?
Under the American system of government, protection against a “tyranny of the majority” primarily comes from the numerous protections of individual rights contained in the Bill of Rights as well as numerous specific clauses of the original constitution, including, but not limited to, the prohibition of ex post facto laws, prohibition of bills of attainder (i.e., legislative acts that impose criminal penalties on named individuals), and prohibition on religious tests for office.
The “checks and balances” provided by dividing government into three branches (legislative, executive, and judicial) provides additional protection against a “tyranny of the majority.” In particular, the existence of an independent judiciary provides significant protection against “tyranny of the majority.”
Additional protection comes from the fact that the United States is a “compound republic” in which governmental power is divided between two distinct levels of government—state and national. James Madison explains the concept of a “compound republic” in Federalist No. 51.
“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” [Emphasis added]
 Von Spakovsky, Hans. Destroying the Electoral College: The Anti-Federalist National Popular Vote Scheme. Legal memo. October 27, 2011. http://www.heritage.org/research/reports/2011/10/destroying-the-electoral-college-the-anti-federalist-national-popular-vote-scheme.
 41 Annals of Congress 169–170. 1824.
 The 2012 election returns shown in table 9.35, table 9.36, table 9.45, and appendix HH were obtained from the National Archives and Record Administration (NARA) web site at http://www.archives.gov/federal-register/electoral-college/2012/popular-vote.html. The NARA web site presents the number of votes shown on each state’s Certificate of Ascertainment. There are two differences between our tables and that on the NARA web site. First, the NARA web site presents votes by party, whereas our table is based on votes by candidate. This difference in treatment creates a difference in the case of New York (which uses fusion voting). The NARA web site (as of January 4, 2013) showed the 141,056 votes that the Obama-Biden slate received on the Working Families Party line (and contained in New York’s Certificate of Ascertainment) as minor-party votes in column 6 of their table, instead of showing these votes as Obama-Biden votes in column 2 of their table. Similarly, the web site shows the 256,171 votes that the Romney-Ryan slate received on the Conservative Party line as minor-party votes in column 6, instead of showing these votes as Romney-Ryan votes in column 3. Our table puts these Obama-Biden votes and Romney-Ryan votes in columns 2 and 3, respectively, in conformity with the practice of the New York State Board of Elections Thus, our table shows (in column 6) only 8,652 votes for minor-party candidates in New York. See section 2.10 for additional details on fusion in New York and figure 2.11 was an example of a presidential ballot in New York. Secondly, our table reflects the adjustment (certified on December 31, 2012) to New York state’s vote totals resulting from the fact that an executive order issued on the evening before Election Day allowed voters in counties affected by Hurricane Sandy to cast provisional ballot at any polling place in the state. A total of 400,629 additional ballots (over 300,000 in New York City alone) were counted as a result of this executive order.
 Publius. The structure of the government must furnish the proper checks and balances between the different departments. Independent Journal. February 6, 1788. Federalist No. 51.