Lawsuits Challenge “Winner Take All” Allocation Of Electoral College Votes

A group of lawsuits filed across the country are seeking to challenge the predominant method for allocation of Electoral College votes. These lawsuits appear to have little merit.

A group of attorneys and public interest groups are pursuing legal claims against the manner in which most of the United States allocate their Electoral Votes, but from a cursory examination of the pleadings it seems clear that these lawsuits have little chance of succeeding on the merits:

A Harvard Law professor, former governor William F. Weld, and Al Gore’s onetime attorney are making a long-shot bid to change the Electoral College system, arguing that it encourages presidential candidates to devote all their time to a handful of swing states and ignore the vast majority of the country.

The high-powered group is suing two blue states, Massachusetts and California, and two red states, Texas and South Carolina, arguing that the winner-take-all system that they and 44 other states use to allocate electors to the Electoral College effectively disenfranchises millions of voters who back the losing candidates.

In 2016, for example, more than 1 million Massachusetts voters cast ballots for Donald Trump, but that translated into zero Electoral College votes because Massachusetts’ winner-take-all system required all 11 of the state’s electoral votes to go to Hillary Clinton. Similarly in Texas, nearly 4 million voters cast ballots for Clinton, but all 38 of the state’s Electoral College votes went to Trump.

The group contends that the winner-take-all system violates the “one person, one vote” principle because voters who back losing candidates in the general election in November have their votes “discarded when it really counts in mid-December,” and the Electoral College picks the president.

Frustration with the Electoral College has increased, particularly on the left, since Clinton became the second Democratic presidential nominee after Gore to win the popular vote but lose the presidency in the Electoral College in the last two decades.

The lawsuits were orchestrated by Lawrence Lessig, a Harvard Law professor and longtime critic of the Electoral College, corporate money in politics, and gerrymandering, who briefly ran for the Democratic presidential nomination in 2015.

He hopes to get the case to the Supreme Court before the 2020 presidential election. While other critics have called for the outright elimination of the Electoral College, which would require a constitutional amendment, the legal challenge targets state laws that require a winner-take-all system in choosing electors.

David Boies, who represented Vice President Gore in Bush v. Gore, the 2000 Supreme Court case that tipped the presidency to George W. Bush, is the lead attorney in the case, and was in federal court in Boston for preliminary arguments on Thursday.

“You shouldn’t have voters going to the polls knowing their votes don’t count,” because they live in blue or red states, Boies told Judge Patti B. Saris. “That’s why political candidates don’t come here to campaign the same way they go to Ohio or Florida or other so-called battleground states.”

Weld, the former Republican governor and 2016 Libertarian nominee for vice president, is one of three plaintiffs in the Massachusetts case. The other two are Republicans — a Harvard student and a former Weld administration official.

Weld was traveling in Greece this week, but said in a statement that the winner-take-all system “discards millions of votes for president every four years” and “is at the heart of the unhealthy duopoly that plagues our national politics.”

Saris was openly skeptical of the effort, saying in court that she would be reluctant to order the Legislature to fix problems with the Electoral College unless there was a “plain violation” of voters’ constitutional rights.

“It’s a steep hill,” Saris said.

Attorney General Maura Healey is fighting the lawsuit on behalf of Governor Charlie Baker and Secretary of State William F. Galvin, who have been named as defendants.

Healey’s office argues that invalidating Massachusetts’ winner-take-all system would upend a practice that dates back to the early days of the republic, and has been upheld by every court that has considered it.

Assistant Attorney General Amy Spector told Saris that the winner-take-all system does not violate the First Amendment right to free association or the 14th Amendment right to equal protection because it treats all candidates the same, regardless of party.

“There is no inherent unfairness in it,” Spector said, and losing candidates don’t have a right to participate in the Electoral College “as some sort of consolation prize.”

“Here, there’s a level playing field,” she said. “Everyone has an equal chance at the prize.”

If the plaintiffs are concerned about the Electoral College, they should take their case to Beacon Hill, not federal court, Spector added.

The lawsuits, which were actually filed earlier this year and remain in the early stages of litigation, were filed under the rubric of an organization calling itself “Equal Votes” which appears to have been established for the sole purposes of coordinating the litigation currently pending in California, Texas, South Carolina, and Massachusetts. In each case, the Complaint filed on behalf of the respective Plaintiffs asks the Court to declare the “winner take all” method of allocating Electoral Votes to be unconstitutional under a variety of theories and to mandate that each state select some other method of allocation that would protect the rights of citizens and adhere to the “one person one vote” principle allegedly violated by the current allocation method.

The Complaints argue, for example, that the “winner take all” system violates the First and Fourteenth Amendments to the Constitution by virtue of the fact that it intrudes on the ability of citizens to express their political opinions and to associate by restricting the impact that their votes have on the outcome of a Presidential election. They also claim that the “winner take all” system violates the “one person one vote” principle protected via the Equal Protection Clause of the 14th Amendment because it gives more weight to voters who vote for the candidate who gets the most votes in a particular state while essentially not counting the votes of people who vote for the losing candidates, whether those candidates are the nominee of one of the two major parties or of a third-party such as the Libertarian Party and the Green Party. While this is certainly a unique legal argument, it does not strike me as one that has very much legal merit, and I would not expect any of these lawsuits to be successful.

As a start, it’s worth pointing out that the Constitution seems fairly clear on the authority of the states to determine how to allocate Electoral College votes. That authority is set forth in Article I, Section One, Clause 1 which states:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

As can plainly be seen, the only limitation on the authority of the states to appoint and allocate Electors is that the Electors themselves cannot be a sitting Senator, Member of Congress, or hold any other Federal office. Beyond that, the Constitution says nothing about how the states may allocate Electors nor does it place any limitation on how Electors are to be allocated. Additionally, with the exception of the provision of the Twelfth Amendment that states that Electors cannot vote for a Presidential and Vice-Presidential candidate from the same state, no other part of the Constitution appears to place any limitations on the power of the states to allocate Electoral Votes however see fit. Based on this authority, the states have utilized a number of different allocation methods since the Constitution was ratified to allocate their Electoral Votes. This has included allocation via Congressional District, a method that Maine and Nebraska currently use to allocate themselves, allocation systems that roughly approximate a proportional allocation of Electoral Votes, and in some cases allocation via the state legislature with only a passing regard for what the actual popular vote in the state may have been. Throughout history, though, the most widely used allocation method, and the one which a majority of states use today, is the so-called “winner take all” system under which the candidate who gets the most votes in a given state is awarded all of that state’s Electoral Votes.

Based on the Complaint and the other legal documents that have been filed in this case, it seems clear that the Plaintiffs claims in this case are incredibly weak. As the responding states have noted in their respective Motions to Dismiss, the “winner take all” system has been widely used throughout American history from the very first Presidential election in 1788 through the 2016 election and there has never been a serious challenge to the propriety of this method allocation. Additionally, the Plaintiff’s claims under the First Amendment are weak to say the least. Nothing about the “winner take all” system limits the ability of a voter in any of the states that uses this method of allocation to vote or to have a voice in the political process. Finally, the argument that “winner take all” allocation violates the “one person one vote” principle makes little sense given the fact that voters are still free to vote for whomever they want and to have that vote counted. Participation in the Presidential election system as it exists today doesn’t mean that one has a right to be represented in the Electoral College, and the Constitution is clear that states can allocate Electors however they wish. Given that, there seems to be very little legal merit in these lawsuits.

In any case, you can review the Complaints and the legal documents that have been filed in all four of these cases at this link. I have also embedded a copy of the Complaint filed in Massachusetts as an example of the arguments the Plaintiffs are making and a copy of the Motion to Dismiss filed by the Commonwealth of Massachusetts as an example of the arguments being made by the states:

Lyman Et Al v. Baker Et Al by Doug Mataconis on Scribd

Lyman Et Al v. Baker Et Al Motion to Dismiss by Doug Mataconis on Scribd

FILED UNDER: First Amendment, Fourteenth Amendment, Law and the Courts, U.S. Constitution, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Gustopher says:

    When you point out this:

    Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors

    You claim it isn’t the final word for all things in the selection of electors. I think it is equally valid (if not more valid) to read the passage like this:

    Each State shall appoint, in such Manner as the Legislature thereof may direct [and consistent with the rest of this Constitution and its Amendments], a Number of Electors,

    Now, I am not a lawyer, let alone a constitutional lawyer, so I don’t know if the 14th amendment applies here, or if the application of most of the bill of rights to limit state governments applies (incorporation?), but the window to interpret those amendments as affecting allocation of electors is there if someone wants to interpret it that way.

    It would certainly not be the most insane reading of the constitution we have seen in accepted case law.

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  2. I think the stronger challenge would probably be a Voting Rights Act challenge that winner-takes-all systems violate the right of minorities of voters to select candidates of their choice, in the same way that at-large systems have been challenged in local government elections; since African American voters are consistently being outvoted by white voting blocs in states like Alabama, Georgia, Mississippi, and South Carolina it’s pretty much exactly in line with the Gingles test. However, it’d be hard to make that challenge in states with relatively small minority populations or with few electoral votes.

  3. Kylopod says:

    I agree that the constitutional objections to the winner-take-all system are dubious and this is almost certainly going nowhere. But it is true that it’s a pretty awful system that has contributed to the fact that candidates only visit and a handful of states and ignore the rest.

    If we had a purely proportional system, then a candidate who wins, say, 42% of the vote in a state would receive approximately 42% of the electors. That means that even in a state that solidly favors one party, the candidate from the other party wouldn’t necessarily be wasting time by campaigning there. It would also give third-party candidates a better chance at winning at least some electoral votes.

    The downside is that it would increase the chances of an electoral deadlock where no candidate wins a majority of the electoral votes–thus throwing the election into Congress, something that hasn’t happened since 1824.

    The system used in Nebraska and Maine isn’t purely proportional–rather, it’s winner-take-all at the level of district. If all the states used such a system, it would cause gerrymandering to have an influence on presidential elections. Indeed, that’s exactly what happened after Obama’s surprise win of a single EV in Nebraska in 2008: the Nebraska legislature deliberately redrew the district to make it harder for Obama to win it again. (Hillary came within two points of winning that same district in 2016.)

    https://fivethirtyeight.com/features/nebraska-g-o-p-draws-a-tougher-map-for-obama/

    All in all, the way this is ultimately going to be resolved is legislatively, not judicially, and the real goal should be abolition of the electoral college altogether. Making stuff proportional might be an improvement over the current system (keeping the above caveats in mind), but it would be a half-measure toward the real problem.

  4. TM01 says:

    @Chris Lawrence:

    winner-takes-all systems violate the right of minorities of voters to select candidates of their choice

    What about the minorities who voted for Trump?

    Do you always assume that all people of a certain skin tone vote the same way?

    @Kylopod:

    candidates only visit and a handful of states and ignore the rest

    Like Wisconsin?

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  5. James Joyner says:

    @Chris Lawrence: An interesting argument. But, not only has Gingles been read quite narrowly in most cases, but one wonders if Shelby County v. Holder obviates that decision entirely?

  6. george says:

    Winner take all is pretty much the basis of most forms of democratic gov’t. Take the presidential election; even if there were no electoral college, Clinton would have won 48% of the gov’t, Trump 46% of the gov’t, Johnson 3% and Stein 1%. Without winner take all, that would mean Clinton would get to be President 48% of the time, Trump 46% of the time, Johnson 3% of the time, and Stein 1% of the time.

    Its fairly arbitrary to say winner takes all should apply to the presidency, but not to the electoral college. There are a lot of reasons for getting rid of the electoral college, but saying winner take all is unfair simply isn’t one of them unless you concede that the whole electoral system based on it is also unfair (senators are elected winner take all, congress as well and so on), in which case you’d have to change the whole system.

    Having said that, I think it’d be amusing to watch gov’t with a non-winner take all president; imagine if say Trump and Clinton were president on alternative days. Or Obama and Romney and so on – there’s probably a great comedy movie in there somewhere.

  7. Kylopod says:

    @george:

    Winner take all is pretty much the basis of most forms of democratic gov’t.

    That isn’t correct. Many countries use proportional representation in electing legislatures.

  8. @TM01: I’m not “assuming” anything; it’s the legal standard that’s applied in these cases, based on the fact that (a) the vast majority of African Americans vote for the same candidate (usually Democrats) and (b) in at least some cases the vast majority of white Americans appear to vote together to ensure the candidate preferred by the black population doesn’t win. That some black people vote for Republicans or some white people vote for Democrats doesn’t change that.

    @James Joyner: Shelby County only affected section 5; Gingles has to do with the interpretation of section 2. It’s a bit of a longshot argument; I can only figure the LDF hasn’t tried it out because they think either (a) it’s not worth litigating or (b) district-based or proportional allocation would probably not benefit Democrats overall. Looking here I think (b) might be the answer, since district-based allocation would probably pass constitutional muster and it’d probably actually end up benefitting Republicans more than winner-takes-all does (Romney would have won in 2012 using the district method).

  9. Just nutha ignint cracker says:

    @george: Even if winner take all is unfair–and I can see the argument for that–the constitutional remedy is what the Mass AG suggested it is. Take it to the Legislature.

    I mean, if you can’t sell this to gerrymandering GOP legislatures, whazzup wid dat?

  10. george says:

    @Kylopod:

    That isn’t correct. Many countries use proportional representation in electing legislatures.

    Fair point, I overstated the frequency.

    Proportional representation in a president would be interesting. You could either divide the time as President up according to percentage of vote (ie Clinton would be President 48% of the time, Trump 46% etc), or by powers (some split that gave Clinton 48% of the powers, Trump 46% etc) – practically the latter would be easier to mange. In fact, I think it’d be a good idea – the American president has become far too powerful, splitting the powers proportionally could be a very good thing.

    And splitting the senate and congress proportionally could work just as well.

  11. HarvardLaw92 says:

    Or just do the logical thing and move to direct election of president and vice president. Hmm?

  12. TM01 says:

    @george:

    the American president has become far too powerful,

    well… Yeah. It’s not just the president tho.
    We used to have actual 3 coequal branches of govt. Also, the 10 amendment is supposed to limit the reach of the federal government, which obviously includes the President. Maybe we should just try limiting the power of govt overall for a change.

  13. george says:

    @TM01:

    Maybe we should just try limiting the power of govt overall for a change.

    Yup. The military and police are excellent parts of the gov’t to start with – way too much power entrusted with both of them. After all, if you can’t trust the gov’t, you absolutely can’t trust the sections of the gov’t that can apply physical force.