Attorneys General: Ask U.S. Supreme Court to invalidate Winner Take All for electors
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Allocating electoral votes by Winner Take All is unfair and may be unconstitutional because it violates the equal protection clause of the 14th Amendment (one person, one vote). Before the 2020 presidential election, Attorneys General especially of populous states like California and New York should take this to the U.S. Supreme Court to challenge the Winner Take All system.
"Lessig's equal protection argument…[is] on the right side of history and logic."—Laurence Tribe, professor of constitutional law at Harvard Law and cofounder of American Constitution Society (December 5, 2016, on Twitter)
Law professor and activist Lawrence Lessig writes (emphasis added), 'Yes, the Constitution creates an inequality because of the way it allocates electoral college votes. A state like Wyoming, for example, gets 3 electoral votes with a population of less than 600,000, while California gets 55 electoral votes with a population of more than 37 million. Thus…California has a population that is 66x Wyoming, but only gets 18x the electoral college votes.
'But the real inequality of the electoral college is created by the “winner take all” (WTA) rule for allocating electoral votes. WTA says that the person who wins the popular votes gets all the electoral college votes for that state. Every state (except Maine and Nebraska) allocates its electors based on WTA. But that system for allocating electoral votes is not mandated by the Constitution. It is created by the states. And so that raises what should be an obvious and much more fiercely contested question—why isn’t WTA being challenged by the Democrats in this election?
'The strongest argument about why it isn’t is an argument of reliance (some people gussy this up to a point about “the rule of law” but that’s just confused rhetoric): The election was waged assuming WTA; it’s not fair now, the argument goes, to change the rule for how electors will be counted.
'No doubt, it is unfair to the campaigns of Hillary Clinton and Donald Trump. They spent money in reliance on the existing system. But that’s not the only “unfairness” at stake here: What about the unfairness being felt by the millions of voters whose votes were effectively diluted, or essentially disenfranchised? Why doesn’t their harm also weigh in the balance?
'It’s perfectly clear that the Attorney General of New York or California could walk into the Supreme Court tomorrow, and ask the Court to hear the case. Delaware tried to do this exactly fifty years ago, but the Court ducked the question. But based on that complaint, were I a citizen of California, I’d ask my current AG (and future Senator) why hasn’t CA done the same thing? And were I a citizen of New York, I’d ask my AG the same. Why are these big states standing by quietly as their voters are essentially silenced by the unconstitutional inequality?'
Lessig quotes a statement of the argument written by Atlanta lawyer Larry Sims. Salient parts of Sims's argument (emphasis added):
'a winner-take-all system of allocating Electors by the states denies the minority of voters within each state any representation whatsoever within the Electoral College and ultimately in the case of the 2000 and 2016 elections, denies the plurality of voters nationwide their choice for President under circumstances in which the constitutionally established small state advantage made part of the Electoral College would not. This is neither a reasonable nor a rational result in a representative democracy. This result was dictated by the winner-take-all method of allocating Electors used by the states. It is this state law method of allocating Electors that is an unconstitutional violation of the equal protection clause of the 14th Amendment and its bedrock principle of one [person] one vote. … The winner-take-all allocation of multiple Electors (ranging from 3 Electors in our smallest states to 55 in our largest) denies any voice whatsoever to each state’s minority voters, no matter how substantial their vote may be. The distortion of presidential election results by the winner-take-all apportionment of a state’s Electors is an unconstitutional denial of the equal protection of the law.'
Donald Trump threatens the U.S. Constitution itself through his aggressive statements against the press (threatening to "open up libel laws"), against free speech (suggesting the government should revoke citizenship as punishment for protest-burning the American flag, which the U.S. Supreme Court has upheld as protected speech), against religious groups (notably Muslims), promoting cruel and unusual punishment (Trump has spoken multiple times in support of waterboarding, which international and U.S. law have deemed torture, which is illegal), and against other institutions protected by the U.S. Constitution. Not only is Donald Trump apparently ignorant of the Constitution, his attacks make clear that he does not care to understand it or intend to uphold it.
Given what is at stake, Attorneys General should take the argument against Winner Take All, which is not in the Constitution, to the U.S. Supreme Court.
(Photo credit: AP/Evan Vucci/Getty/artisteer via Salon.com)
- How the Electoral College Became Winner-Take-All
- Why James Madison Wanted to Change the Way We Vote For President
- Five presidential nominees who won popular vote but lost the election
Updated 8/29/17 to edit recipients to match the top 10 states (as of 2008) whose voters are most impacted by biased representation due to Winner Take All. I also added links to a few related articles. While Democrats may be most aware of the unfairness of Winner Take All electors after the 2000 and 2016 elections, the 14th amendment of the Constitution is meant to apply to all U.S. citizens regardless of party affiliation, hence this is not a partisan issue. It's time to amend this undemocratic process that has allowed (at last count) five presidential candidates to win the most votes but lose the presidency.
Updated 3/4/17 to replace Kamala Harris, now a U.S. Senator, with Xavier Becerra, acting Attorney General for California.
Updated 12/14/16 to add emphasis and another example of Trump's attacks on Constitutional institutions. A New York Times op-ed today titled "Buck Up, Democrats, and Fight Like Republicans" by Dahlia Lithwick and David S. Cohen mentioned the Winner Take All unconstitutionality argument (emphasis added):
"There’s no shortage of legal theories that could challenge Mr. Trump’s anointment, but they come from outsiders rather than the Democratic Party. Impassioned citizens have been pleading with electors to vote against Mr. Trump; law professors have argued that winner-take-all laws for electoral votes are unconstitutional; a small group, the Hamilton Electors, is attempting to free electors to vote their consciences; and a new theory has arisen that there is legal precedent for courts to give the election to Mrs. Clinton based on Russian interference. All of these efforts, along with the grass-roots protests, boycotts and petitions, have been happening without the Democratic Party."
Updated 12/13/16 to add additional Attorneys General, per commented suggestion.
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