Lawsuits filed to get rid of the winner-take-all Electoral College system

William Weld, former governor of Massachusetts and 2016 Libertarian Party V.P. candidate, has filed suit in federal court in Boston, claiming that the state's method of allocating all the electoral votes to the winner of the state's popular vote violates the U.S. Constitution.  It is part of similar coordinated lawsuits filed in Texas, California, South Carolina.  These states along with Massachusetts represent two Democratic states and two Republican states.  The argument is that these states represent the situation nationwide, where the voters for the losing candidate have no voice in selecting the electoral voters and thus no voice in electing the president.

The lawsuit alleges:

The predominant method in America for counting votes in presidential elections violates the United States Constitution; it also distorts presidential campaigns, facilitates targeted outside interference in our elections, and ensures that a substantial number of citizen voters are disenfranchised when their votes are tallied in early November, only to be discarded when it really counts in mid-December. 

The argument is that winner take all (WTA) violates the First and Fourteenth Amendments because voters are not treated equally.

The Texas lawsuit, brought by David Boies, attorney for Al Gore in the 2000 Florida recount lawsuits, also alleges that Texas's system of WTA discriminates against black and Hispanic voters.  The plaintiff is the "League of Latin American Citizens."  Why not just the League of American Citizens?

Maine and Nebraska allocate by congressional districts, while the rest use the WTA system.

The fair way to allocate the electoral votes is for every state to reform its system to award the votes based on the winner of the congressional district in each state getting the electoral vote for that district.  This would mirror the House of Representatives.  But the lawsuits seek to award the electoral votes proportionally by the percentage of the popular vote in the state.  The lawsuits specifically oppose awarding electoral votes by congressional districts.

The current system disenfranchises many voters.  One could win by a few votes, as Bush did in Florida, and win the state.  Also, many states such as Ohio, Michigan, Illinois, and Pennsylvania have conservative Republican congressional districts, but their votes are usually swamped by the votes in cities such as Detroit, Cleveland, Chicago, and Philadelphia, where the Democrat machines turn out impossible-to-believe majorities for the Democrat nominee.  Thus, the Democrat-controlled cities usually wipe out the votes of the more conservative counties in each state.

The issue is whether to reform the electoral system and, if so, how.  The current system favors the Democrats because of their lock on states such as California, New York, Illinois, New Jersey, Oregon, and Washington.  President Trump won because of the close elections in the battleground states of Pennsylvania, Wisconsin, Ohio, and Michigan.

Reform would force the parties and candidates to campaign in all 50 states instead of the candidates now focusing on the battleground states.  The reform would also force each party to contest each election in every congressional district.  Now many congressional district elections are not contested by the other party because of gerrymandering.

This reform should be done by each state, since the Constitution allows each state to decide how to award its electoral votes, but each state should follow the same system. 

But the lawsuits ask the federal courts to make the policy instead of the legislatures of each state.  The 14th Amendment provision of equal protection is the vehicle for federal judges to make policy and legislate. 

The complaints cite Williams v. Rhodes, 339 U.S. 23 (1968), where the Court held that the 14th amendment equal protection provision applies to the state's system of selecting electors.

The complaints allege that the principle of "one man, one vote" requires that WTA renders the votes of those voting for the losing candidate meaningless, and therefore it violates the equal protection clause of the 14th Amendment.  This means that a WTA state places greater value on one voter than another.

The complaints do admit that a decision by a Virginia federal court in Williams v. State Board of Elections, 288 F. Supp. 622 (E.D. Va 1968), affirmed by the Supreme Court without opinion at 393 U.S. 320 (1969), held that Virginia could allocate its electoral votes by WTA.  The district court considered arguments of "one man, one vote" and equal protection similar to Weld's complaint and held:

The merits and advantages of the plaintiffs' thesis are readily recognizable.  We do not discount or deride their motives, but we are of the opinion that a compulsory compliance with their demand or any other proposed limitation on the selection by the State of its presidential electors would require a Constitutional amendment[.] ... Whatever the pattern, to succeed it must be nationwide[.] ... Any modification of the electoral college system should be on a uniform national basis in order to avoid creating additional inequities on an interstate basis.

The responsible way is for a constitutional amendment to specify proportional allocation by congressional district so that each state follows the same procedure.  It is an important issue that should be debated in the legislatures of each state and in Congress.  It should not be decided by a federal judge based on arguments from attorneys.

Image: michael_swan via Flickr.

William Weld, former governor of Massachusetts and 2016 Libertarian Party V.P. candidate, has filed suit in federal court in Boston, claiming that the state's method of allocating all the electoral votes to the winner of the state's popular vote violates the U.S. Constitution.  It is part of similar coordinated lawsuits filed in Texas, California, South Carolina.  These states along with Massachusetts represent two Democratic states and two Republican states.  The argument is that these states represent the situation nationwide, where the voters for the losing candidate have no voice in selecting the electoral voters and thus no voice in electing the president.

The lawsuit alleges:

The predominant method in America for counting votes in presidential elections violates the United States Constitution; it also distorts presidential campaigns, facilitates targeted outside interference in our elections, and ensures that a substantial number of citizen voters are disenfranchised when their votes are tallied in early November, only to be discarded when it really counts in mid-December. 

The argument is that winner take all (WTA) violates the First and Fourteenth Amendments because voters are not treated equally.

The Texas lawsuit, brought by David Boies, attorney for Al Gore in the 2000 Florida recount lawsuits, also alleges that Texas's system of WTA discriminates against black and Hispanic voters.  The plaintiff is the "League of Latin American Citizens."  Why not just the League of American Citizens?

Maine and Nebraska allocate by congressional districts, while the rest use the WTA system.

The fair way to allocate the electoral votes is for every state to reform its system to award the votes based on the winner of the congressional district in each state getting the electoral vote for that district.  This would mirror the House of Representatives.  But the lawsuits seek to award the electoral votes proportionally by the percentage of the popular vote in the state.  The lawsuits specifically oppose awarding electoral votes by congressional districts.

The current system disenfranchises many voters.  One could win by a few votes, as Bush did in Florida, and win the state.  Also, many states such as Ohio, Michigan, Illinois, and Pennsylvania have conservative Republican congressional districts, but their votes are usually swamped by the votes in cities such as Detroit, Cleveland, Chicago, and Philadelphia, where the Democrat machines turn out impossible-to-believe majorities for the Democrat nominee.  Thus, the Democrat-controlled cities usually wipe out the votes of the more conservative counties in each state.

The issue is whether to reform the electoral system and, if so, how.  The current system favors the Democrats because of their lock on states such as California, New York, Illinois, New Jersey, Oregon, and Washington.  President Trump won because of the close elections in the battleground states of Pennsylvania, Wisconsin, Ohio, and Michigan.

Reform would force the parties and candidates to campaign in all 50 states instead of the candidates now focusing on the battleground states.  The reform would also force each party to contest each election in every congressional district.  Now many congressional district elections are not contested by the other party because of gerrymandering.

This reform should be done by each state, since the Constitution allows each state to decide how to award its electoral votes, but each state should follow the same system. 

But the lawsuits ask the federal courts to make the policy instead of the legislatures of each state.  The 14th Amendment provision of equal protection is the vehicle for federal judges to make policy and legislate. 

The complaints cite Williams v. Rhodes, 339 U.S. 23 (1968), where the Court held that the 14th amendment equal protection provision applies to the state's system of selecting electors.

The complaints allege that the principle of "one man, one vote" requires that WTA renders the votes of those voting for the losing candidate meaningless, and therefore it violates the equal protection clause of the 14th Amendment.  This means that a WTA state places greater value on one voter than another.

The complaints do admit that a decision by a Virginia federal court in Williams v. State Board of Elections, 288 F. Supp. 622 (E.D. Va 1968), affirmed by the Supreme Court without opinion at 393 U.S. 320 (1969), held that Virginia could allocate its electoral votes by WTA.  The district court considered arguments of "one man, one vote" and equal protection similar to Weld's complaint and held:

The merits and advantages of the plaintiffs' thesis are readily recognizable.  We do not discount or deride their motives, but we are of the opinion that a compulsory compliance with their demand or any other proposed limitation on the selection by the State of its presidential electors would require a Constitutional amendment[.] ... Whatever the pattern, to succeed it must be nationwide[.] ... Any modification of the electoral college system should be on a uniform national basis in order to avoid creating additional inequities on an interstate basis.

The responsible way is for a constitutional amendment to specify proportional allocation by congressional district so that each state follows the same procedure.  It is an important issue that should be debated in the legislatures of each state and in Congress.  It should not be decided by a federal judge based on arguments from attorneys.

Image: michael_swan via Flickr.