In 1966, the state of Delaware led a group of 12 predominantly low-population states (including North Dakota, South Dakota, Wyoming, Utah, Arkansas, Kansas, Oklahoma, Iowa, Kentucky, Florida, Pennsylvania) in suing New York in the U.S. Supreme Court.
David P. Buckson (Republican Attorney General of Delaware at the time) led the effort. Delaware’s brief argued:
“The state unit-vote system [the ‘winner-take-all’ rule] debases the national voting rights and political status of Plaintiff’s citizens and those of other small states by discriminating against them in favor of citizens of the larger states. A citizen of a small state is in a position to influence fewer electoral votes than a citizen of a larger state, and therefore his popular vote is less sought after by major candidates. He receives less attention in campaign efforts and in consideration of his interests.”
In their brief, Delaware and the other plaintiffs stated:
“This is an original action by the State of Delaware as parens patriae for its citizens, against the State of New York, all other states, and the District of Columbia under authority of Article III, Section 2 of the United States Constitution and 28 U.S. Code sec. 1251. 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 misappropriate for the candidate receiving a bare plurality of the total number of citizens’ votes cast within the state.
“The Complaint alleges that, although the states, pursuant to Article II, Section 1, Par. 2 of the Constitution, have some discretion as to the manner of appointment of presidential electors, they are nevertheless bound by constitutional limitations of due process and equal protections of the laws and by the intention of the Constitution that all states’ electors would have equal weight. Further, general use of the state unit system by the states is a collective unconstitutional abridgment of all citizens’ reserved political rights to associate meaningfully across state lines in national elections.”
The plaintiff’s brief argued that the votes of the citizens of Delaware and the other plaintiff states are
“diluted, debased, and misappropriated through the state unit system.”
The U.S. Supreme 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).
The importance of the 1966 Delaware case is not that it set any legal precedent. The controlling precedent recognizing the plenary and exclusive power of the states to allocate electoral votes was set in 1893, and did not need reiteration in 1966. The 1966 case is important because 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, arguing that New York’s use of the winner-take-all effectively disenfranchised voters in their states. The importance of the 1966 case is political. This lawsuit, by the state governments of 12 states, put these states on record as recognizing the illusory benefit to the small states of the two-vote bonus. The Court declined to hear the case because of the well-established 1893 precedent that the manner of awarding electoral votes is exclusively a state decision. Ironically, defendant New York is no longer a battleground state (as it was in the 1960s) and today suffers the very same disenfranchisement as the 12 non-competitive states who sued New York in 1966. A vote in New York is, today, equal to a vote in any of these small non-competitive states—all are equally worthless and irrelevant in presidential elections.
The above statement is NOT the "be all and end all", IF the state has granted the right to vote for presidential electors.
IF the state decides that it wants to award its electors based on a vote by its legislature, it is free to do so - as is evidenced in Bush v. Gore:
“The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U.S. Const., Art. II, §1. This is the source for the statement in McPherson v. Blacker, 146 U.S. 1, 35 (1892), that the State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. Id., at 28—33.”
HOWEVER, the Court has further ruled that once the franchise is granted, 14th Amendment Equal Protection DOES apply.
So, now there are two competing clauses of the Constitution. The plenary right of the state to choose its electors vs. the fundamental constitutional right to vote.
Again, from Bush v. Gore:
“History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter ..."
"... Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966) (“[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”). It must be remembered that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555 (1964).”
In Reynolds, the Court noted:
"When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right. [n42] [p567] To the extent that a citizen's right to vote is debased, he is that much less a citizen."
The NPV EXTENDS power OUTSIDE of the domain of state interest IF it values the vote of a person EXTERNAL to the state OVER the vote of EVEN ONE of its own citizens. This is what happens if the majority of its citizens voted for the loser of the NPV and then EFFECTIVELY have their personal votes erased and given to the winner of the NPV [who then receives the state's EVs].
This would be analogous to the state legislature enacting a law stating the following:
"The State values each of its citizen's votes for presidential electors and will award its electoral votes to the winner of the State presidential election IF its citizens vote with the MAJORITY of the EXTERNAL presidential votes of the rest of the United States. HOWEVER, in the event that its citizens vote with the MINORITY of the EXTERNAL presidential votes of the rest of the United States, the State will then DISQUALIFY its citizens' majority presidential votes and then award its electoral votes to the winner of the National Popular Vote."
"Undeniably, the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal, elections. A consistent line of decisions by this Court in cases involving attempts to deny or restrict the right of suffrage has made this indelibly clear. It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote, Ex parte Yarbrough, 110 U.S. 651, and to have their votes counted, United States v. Mosley, 238 U.S. 383. In Mosley, the Court stated that it is "as equally unquestionable that the right to have one's vote counted is as open to protection ... as the right to put a ballot in a box." 238 U.S. [p555] at 386. The right to vote can neither be denied outright, Guinn v. United States, 238 U.S. 347, Lane v. Wilson, 307 U.S. 268, nor destroyed by alteration of ballots, see United States v. Classic, 313 U.S. 299, 315, nor diluted by ballot box stuffing, Ex parte Siebold, 100 U.S. 371, United States v. Saylor, 322 U.S. 385. As the Court stated in Classic,"
"Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted ..."
BTW:
I happen to agree with the 1966 action brought by the states, although the Court declined to hear the case.
You are probably mistaken, though as to the reason the Court declined. As stated in Reynolds:
"When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review ..."
New York's power was insulated INTERNALLY from ANY effect on the other state's award of THEIR presidential electors and the Court has stated that it has no interest in this case.
Does a large state's "winner-take-all" award of its electors have MORE of an effect on the outcome nationally? ABSOLUTELY! And that is what is inherently UNFAIR with the present system in 48 states.
That is why I prefer the Congressional District Method [CDM]. One District - one electoral vote, two "bonus" votes for the winner of the overall state popular vote. That is the way we choose our Representatives and Senators. HOWEVER, if this was EVER to happen, it would take a Constitutional Amendment.
CDM reflects the will of the people at both a District level AND at a state level. Recounts ONLY occur in Districts where the District popular vote is EXTREMELY close [and, POSSIBLY at the state level if the state popular vote is close].