Former Vice President of the United States Joe Biden walking with supporters at a pre-Wing Ding march from Molly McGowan Park in Clear Lake, Iowa. Photo: Pix_Arena/Shutterstock.com

Legislation introduced in Delaware's House of Representatives last week proposed making the state, home of Democratic presidential candidate Joe Biden, the third in the nation to not give all of its electoral college votes to the presidential candidate who wins the popular vote statewide.

If passed into law, House Bill 257, sponsored by state Rep. Stephen Smyk, R-Milton, and Sen. Dave Lawson, R-Marydel, would allocate one of Delaware's three presidential electors to each of its three counties based on the popular vote in each respective county.

The move would likely put at least one electoral vote in the Republican column, that of Sussex County downstate, which has voted for the GOP national tickets in 2008, 2012 and 2016—in the first two of those elections with Biden as the Democratic vice presidential nominee. Kent County voted for President Donald Trump in 2016, but for the Democrats in 2008 and 2012,

Statewide, Democratic presidential tickets have secured Delaware's three electoral votes in every general election since 1992, each time by margins of more than 10%.

Smyk said he introduced the bill June 18 in response to hearing constituents' dissatisfaction with the prospect of the National Popular Vote bill, which was signed into law by Gov. John Carney last year, joining Delaware with 14 other states and Washington, D.C., in an effort to elect the president based on a nationwide popular vote rather than the electoral college system.

"Once it passed, some people looked into it and realized that it wasn't their vote," Smyk said Monday. "It was surrendering its three electoral votes to whatever won throughout the nation, so no longer did it matter what Delaware voted for. Delaware voluntarily gave up its three electoral votes to the rest of the nation. And it was disheartening for some, because they felt duped."

The state, similar to 47 others, currently gives all of its electoral votes to one presidential candidate. Maine and Nebraska are the only two states that currently don't use a winner-take-all system, with one vote allotted for each of those states' congressional districts, instead. Unlike the system proposed in H.B. 357, those states also give two electoral votes to the winner of the statewide popular vote, and their congressional districts are divided into areas with roughly equal populations.

Delaware's electoral college votes have not been cast toward a Republican presidential candidate since 1988, according to data from the Office of the State Election Commissioner. In that time, the winner of the popular vote in New Castle County, where about 60% of the state's population resides, was always the winner of the statewide popular vote.

That data shows voters in New Castle County have favored Democratic presidential candidates almost exclusively over the past three decades, while those in Sussex County have historically leaned consistently toward Republican candidates. Kent County voters have favored candidates from both major parties fairly equally over time.

Smyk, who represents the state's 20th representative district, located in eastern and central Sussex County, said his goal is simply to advocate for the people of that area.

"That's who I represent. That's my voice in Delaware," he said. "I don't represent Wilmington; I represent Delaware and that little part of Delaware in Delaware's Legislature. So I've got to serve them."

The bill's synopsis states the suggested system "would be unique and proportional, better reflecting the will of the individual Delawarean with greater accuracy and independent strength of geographic location for all Delawareans, not just those in the densely populated areas in this nation or State."

Alan Garfield, a professor at Widener University Delaware Law School, said the system proposed in H.B. 257 would be counterproductive to the most common complaint about the electoral college: that a candidate could receive the popular vote but still lose an election.

"Putting aside the constitutional issues for doing this, it does seem like it's taking a bad system and making it even worse," Garfield said. "As a matter of constitutional law, as the courts have interpreted, the congressional districts must be allocated on a one person, one vote basis, so they should be relatively equal in population. The case law requires that."

If Delaware had historically used the system proposed in H.B. 257, roughly equal numbers of votes would have gone to Republican and Democratic candidates over the course of the past eight presidential elections. And if Delaware voters this November fall along the same party lines they did in the 2016 election, Democratic presidential candidate Joe Biden would receive just one of the three votes from his home state. That's because in 2016, Kent and Sussex voted for Trump with populous New Castle voting for Hillary Clinton, the Democrat.

"This, in effect, would give greater weight to less populated counties, perhaps in an extreme sense, as some of them are quite a bit smaller," Garfield said. "And so it just exacerbates the problem of giving some people disproportionate voting power versus other citizens of Delaware, and so I can't imagine any logic for doing that … It seems like it would just be an open invitation of abuse."

All the legislators currently sponsoring the bill represent districts entirely or partially in either Kent or Sussex counties. Smyk said though all eight are Republicans, he's spoken to legislators from both major political parties about H.B. 257, and his support for the bill is not based on partisanship.

After the seminal 1962 Baker v. Carr decision establishing the principle that it could weigh in on the size of state legislative districts, the U.S. Supreme Court followed up with several more voting rights rulings. They included Reynolds v. Sims, mandating that under the 14th Amendment's equal protection clause, state legislative electoral districts must have roughly equal populations, with each person's vote in a state election equal to everyone else's

The Constitution gives states broad authority to determine on an individual basis how they want to determine the distribution of electoral college votes. With Reynolds v. Sims applying specifically to electoral districts for a state's legislature, rather than a state's authority to create districts to be considered in a federal election, Garfield said if H.B. 257 were to become law and was eventually challenged in a court, the proportional voting rule would likely be weighed against the state's right to design its own system for distributing electoral college votes