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: