The Challenge To “Winner-Take-All” Launched
Beginning today, in four states across the country, lawsuits will be filed to challenge the way presidential electors are selected in America. The plaintiffs in these suits charge that the “winner-take-all” system—the system by which the candidate who wins the popular vote in a state gets all of the electoral college votes in that state—violates both the 14th Amendment’s principle of “one person, one vote,” and the Free Speech Clause of the First Amendment.
A Republican in California, no less than a Democrat in Texas, voting for the President of the United States should have her vote for President counted equally, regardless of whether she happens to vote with the majority in her state. Yet under the system as it is now, their votes are counted unequally. If they vote with the majority, their vote matters. If they vote with the minority, their vote counts for zero.
That makes no sense in any democracy; it makes no sense in ours, at least against the background of the principles embedded within our Constitution. That point we believe these cases will prove.
Two of the lawsuits filed today are in traditionally “blue” states —Massachusetts and California. Two are in “red” states—Texas and South Carolina. The plaintiffs in each state include a mix of ordinary citizens as well as more well known citizens. In Massachusetts, former Governor William Weld is a plaintiff. In California, the lead plaintiff is the popular actor and comedian, Paul Rodriguez. In Texas, the lead is the largest Latino membership organization in America, LULAC. LULAC is joined by an incredible mix of plaintiffs in Texas, from civil rights activists who father marched with Dr. King, to one of Texas’ most prominent constitutional scholars, Sanford Levinson.
The idea for these cases was born originally in an essay written more than a dozen years ago by one of Levinson’s former colleagues, NYU Law Professor Sam Issacharoff. The Electoral College itself, Issacharoff argued, could not be challenged. The College is written into the Constitution. It could only ever be removed by a constitutional amendment.
But the systems that the states use to allocate electors within the electoral college is not, Issacharoff observed, written into the Constitution. Those systems are instead created by state law. And as the Supreme Court has held over and over again, those presidential selection systems are subject to the principle of “one person, one vote.”
How that principle would apply to the Electoral College was hinted at by the Supreme Court in a 1963 case called Gray v. Sanders. That case involved a kind of state-level electoral college. Georgia had selected the nominees for statewide office through a county-based electoral system: the winner of the county got the votes of that county. The Supreme Court struck that system down, primarily because the counties were differently sized. That meant the votes in one county were worth more than the votes in another.
Yet the problem with Georgia’s system was not just the unequal size of the counties. Even if the counties were perfectly equal, the Court observed, there would still be a problem: The votes for a candidate who didn’t win that county, the Court noted to criticizing it, would be “counted only for the purpose of being discarded.” That created its own one person, one vote problem, which even equal population could not remedy.
That dynamic describes precisely the problem with winner-take-all in the Electoral College. The inequality in the size of states is baked into the Constitution. There’s nothing, short of an amendment, that can address that. But the inequality caused by a system that “count only for the purpose of … discard” them is not part of the Constitution. That inequality is created by the states. And that state-created inequality is inconsistent with the “one person, one vote” standard.
Five years after Gray v. Sanders, a lower court considered that problem. The court acknowledged the weird inequality that winner-take-all creates. But because the court didn’t believe that inequality was the product of “invidious discrimination,” it let it go. The Supreme Court summarily affirmed that decision, without argument or opinion. And there the matter rested for almost two generations.
Until the Supreme Court decided Bush v. Gore.
The issue in Bush was whether the system for recounting votes cast in Florida’s 2000 presidential election violated the principle of one person, one vote. Though the lawyers for Gore argued that there was no “invidious” discrimination created by the recount system the Florida Supreme Court had established, the United States Supreme Court rejected the idea that invidiousness was actually required by the 14th Amendment. The only question the Court saw was whether the system weighed votes unequally, at least without any basis in reason. On that standard, the Florida recount failed the one person, one vote principle.
By the same reasoning, so too should winner-take-all fail the one person, one vote principle. If the Court applies the same standard that it applied in Bush v. Gore, it should find that the states cannot “count the votes” of some voters, only to discard them when allocating the state’s electoral college votes.
MOTIVES AND REASONS
This link to Bush v. Gore explains the particular interest of the lead attorney in these cases, David Boies. Boies, of course, argued Bush v. Gore in the Supreme Court. Now, using the reasoning used against his client in that case, Boies will ask the Supreme Court to apply its rules consistently. If they do, then the system for electing the President in the United States will change dramatically.
That change will be a great thing—for Republicans and Democrats alike. We can show that going forward, at least 30% of the Presidents that the current system would elect would be candidates who lost the popular vote, but won in the electoral college. That’s slightly more likely to happen with a Republican candidate, but only slightly. Some of those minority elected Presidents will be Republicans. Some will be Democrats. All will have been elected by a system that violates the principle of one person, one vote.
That’s true at least 30% of the time. Yet in every election, as Sam Issacharoff had observed in the essay from a dozen years ago, the campaigns of presidential candidates are focused not on America generally, but on the small slice of America living in battleground states.
For example, in 2016, 99% of campaign spending was in 14 states. Those states, representing just 35% of America, are older and whiter than the rest of America. No doubt, they deserve to be represented just as any one else does. They don’t deserve to be represented any more than any one else does. Yet as researchers have demonstrated, those battleground states get more money, per capita, from the federal government. So too do they get more regulatory attention.
No one, whether a Democrat or a Republican, should support a system that produces such inequality. Everyone, regardless of party, should support a system that weighs the votes of citizens equally.
INCENTIVES AND SOLUTIONS
All four cases raise the same constitutional arguments. And the plaintiffs in every case have committed to assuring that regardless of the results in the lower courts, they will ask the Supreme Court not to permit a different constitutional rule to apply to different parts of the nation.
Yet two of the cases also raise a claim that can only be brought in some states — a claim grounded in the Voting Rights Act. There is good evidence that at least some states used winner-take-all as a means to exclude minorities from the presidential selection system. In those states at least, even if the constitutional claims fail, a Voting Rights Act claim could well succeed. Texas, for example, could be required to allocate electors differently under the Voting Rights Act than New York or California, simply because those latter states have a different history and voting pattern for minorities and historically excluded groups of citizens.
These possibilities, we certainly hope, might shift the willingness of legislators of both parties to consider again the one simple solution to this system of inequality, the National Popular Vote Interstate Compact [NPV].
For at just about the same time that Issacharoff wrote his essay, a number of state legislators started pursuing a very different reform strategy. Rather than litigating the question, they launched a project to get the states to commit to pledging their electors to the winner of the national popular vote. When states representing 270 electors commit to this pledge, then their electors will be selected to vote for the winner of the national popular vote. So far, 11 states representing 165 electors, have committed to the initiative. States representing at least 105 more electors now must join for it to go into effect.
NPV is the simplest solution to the one person, one vote problem that plagues the Electoral College. Indeed, it is the only solution, short of an amendment, that perfectly guarantees one person, one vote.
Yet we can’t let the perfect be the enemy of the good. And we can’t sit around waiting until state legislators finally step up to defend the principle of citizen equality. Until the states have embraced NPV, we have to fight for equality in every forum we can. These lawsuits are the next battlefield in that fight.
PRINCIPLES AND PURPOSE
That, ultimately, is why I entered this struggle. After the 2016 election, I helped found EqualCitizens.US. Our aim is to build recognition among citizens across the country of just how poorly our current political system lives up to the promise of equal political rights. Whether it is the way we fund campaigns, or gerrymander districts, or suppress votes, or elect our President: We have allowed our “representative democracy” to become fundamentally unrepresentative.
In October last year, we launched a crowdfunding campaign to build the resources it would take to launch these lawsuits and to support the movement they must inspire. We met our goal then — two times over. And now, four months later, those lawsuits are finally filed.
It will be a long struggle in the courts to get the questions these cases raise resolved by the Supreme Court finally. But that fight is not just a legal battle. Much more important is building a movement of citizens, both Democrats and Republicans, who recognize just how we have allowed the principles of our representative democracy to be compromised by the politicians.
I'm cautiously optimistic that when the judges fairly consider the claims raised in these lawsuits, they will agree that the current system fails to live up to the constitutional principles within our Republic. But ultimately, a democracy must be defended by its citizens, not just its lawyers. We need millions of Americans to defend our equality as citizens — not just five justices on the Supreme Court.
You can join that movement here—as a supporter, or just a follower. Because what we know is that either way, eventually, you will become a leader in this fight as well.
There are many hard questions in our democracy today. This one should be easy: Every American citizen, regardless of where or he or she lives, or who their neighbors are, should have an equal say in electing our President. Right now, they do not. We can fix this—if you help.
About the Author
Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School and is the founder of Equal Citizens