328 323 see id at 454 noting that pennsylvania has

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328 323 . See id. at 454 (noting that Pennsylvania has been a battleground state in several elections, although it was not in 2012). 324 . See id. at 453 (“The year 2012 is the 100th anniversary of the last time the popular-vote margin in Utah and Nebraska was less than 6%.”). 325 . See id. at 454 (“After decades of voting solidly Republican in presidential elections, Virginia and North Carolina suddenly emerged as battleground states in 2008 . . . .”). 326 . See Christopher Ingraham, How the Electoral College Gerrymanders the Presidential Vote , Wash. Post: Wonkblog (Nov. 29, 2016), https:// - college-gerrymanders-the-presidential-vote/?utm_term=.ab6fd4ee0ac4 [https: //perma.cc/B4RQ-XUHR]. 327. These are, respectively, John F. Kennedy’s Hawaii margin in 1960, and George W. Bush’s in Florida in 2000. See Leip, supra note 62. 328. Of course, the argument can be made that swing state voters, win or lose, derive benefits other than sway over electoral outcomes; they receive disproportionate attention from candidates and may receive special solicitude from the president’s party in designing legislation and bestowing funds. See, e.g. , Nzelibe, supra note 191, at 1272 (noting the “rampant coddling” of swing states, which he criticizes as “parochialism”). These benefits are, however, difficult to defend on any principled grounds; it is hard to see why living in a closely divided state should entitle someone to additional disaster relief, for
Case Western Reserve Law Review·Volume 68·Issue 2·2017 Losing Bargain 378 C. The Practical Consequences of a Winner-Take-All Focus If we regard the winner-take-all feature of the electoral college as uniquely indefensible, what are the consequences? To begin with, defenders of the electoral college should be challenged specifically to explain why the winner-take-all feature of the electoral college is better than alternatives. Defenders of winner-take- all electoral vote assignment have argued, for example, that the system has historically produced clear results, without the necessity of invoking the contingency feature for deciding elections in the House; 329 they likewise contend that winner-take-all supports the two-party system because third parties have difficulty in garnering a meaningful number of electoral votes. 330 Some have also argued that it promotes federalism for control of voting to be left to the states and for states to be seen as independent units in a presidential election. 331 But even if one regards these as desirable goals, they do not specifically justify a winner-take- all system because there are many other ways of achieving them. For example, a system of proportional allocation like that used in Demo- cratic primaries, in which a candidate is entitled to a share of a state’s delegates only after exceeding a certain threshold of votes, 332 might well be similarly effective in marginalizing third-party candidates and avoid- ing contested elections. Likewise, if the role of the House in resolving presidential contests is problematic, it could be replaced by another

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