Four federal lawsuits have been filed arguing that while the Electoral College may be enshrined in the Constitution, the winner-take-all system utilized by it is not.
The lawsuits, which have been filed by the attorney David Boies from the law firm Boies Schiller Flexner and by the League of United Latin American Citizens, was made possible by a crowdfunding campaign started by Harvard University law professor Lawrence Lessig.
"By magnifying the impact of some votes and disregarding others, the winner-take-all system is not only undemocratic, but it also violates the Constitutional rights of free association, political expression, and equal protection under the law," Boies Schiller Flexner explained in a press release on Friday. "These suits aim to restore those rights nationwide. The non-partisan effort will draw on the resources of several law firms in advancing legal challenges in two states that are solidly blue, Massachusetts and California, and two others that are solidly red, South Carolina and Texas."
Two of the lawsuits also argue that the winner-take-all system violates the Voting Rights Act of 1964. According to the press release, "The winner-take-all method has meant that the minority-preferred candidate for president has not been able to receive a single elector since the 1970s in Texas and South Carolina, despite the fact that minority voters make up a significant portion of the electorate in each state."
The suit hinges on the "one person one vote" principle — under the the Equal Protection Clause of the Constitution, no individual's vote can wind up mattering more than that of any other citizen. It was most famously cited in the 1964 Supreme Court case Reynolds v. Sims, which required state legislatures to make sure that their congressional districts had roughly equal populations. It's been used as the linchpin of modern electoral law.
As a result of the winner-take-all system, five presidents have been elected through the Electoral College despite losing in the popular vote: John Q. Adams in 1824, Rutherford Hayes in 1876, Benjamin Harrison in 1888, George W. Bush in 2000 and Donald Trump in 2016. Although the Electoral College was enshrined in the Constitution, the mechanism that allows popular vote losers to ascend to the White House was not.
"Winner-take-all is not part of the Constitution," Lessig wrote in an article on Medium explaining his decision. "The states started adopting the method after the Constitution was ratified; many bemoaned that decision from the very start."
Lessig also pointed out that, ironically, the Supreme Court's 2000 decision in Bush v. Gore may have opened the door to deeming the winner-take-all system unconstitutional. "Until Bush, structures that rendered voting systems unequal were tested under an 'invidiousness' standard — does the rule betray invidious discrimination? — meaning basically, can you show it was adopted for some illicit purpose?" Lessig explained. In 2000, however, the Supreme Court had found that Florida had violated the "one person one vote" principle even though there was no evidence of invidious intent.
As a result, even though the Electoral College's winner-take-all system was not developed with invidious intent, it could still be deemed unconstitutional.
Shares