Problems with the equal protection argument against “winner take all” in the Electoral College

Last week Congress tallied the votes cast by the Electoral College and officially declared Donald Trump the President-elect. Despite his Electoral College victory, however, Trump was nearly 3 million votes short of winning the popular vote. In response, prominent law professors including Lawrence Lessig, Erwin Chemerinsky, and a few others have creatively argued that courts should enforce the Constitution’s guarantee of equal protection to ensure that the Electoral College always reflects the national popular vote.

The argument, in brief, is that 48 states and the District of Columbia deny their citizens equal protection of the laws by awarding their presidential electors on a winner-take-all basis. For example, Democrats received all of California’s 55 electors this year even though 4.5 million of the state’s voters chose the Republican ticket — more than the vote total from the 11 smallest states combined. These California Republicans were denied any representation in the Electoral College. Following Reynolds v. Sims and Bush v. Gore, the professors argue that such winner-take-all selection of electors is unconstitutional because a state must follow the principle of “one person, one vote” and “may not . . . value one person’s vote over that of another.”

Professor Lessig plans to develop this idea in a longer paper. Lessig was undoubtedly one of the most brilliant professors I had in law school. (He graciously let me audit one of his seminars as a busy 3L, which means that this essay is more than I wrote for his class!) But I fear there are several serious problems with this constitutional argument that have not been addressed by the other reaction pieces online.

In the interest of offering productive feedback on this ambitious proposal, I explore some of these problems below.

The Supreme Court has already rejected a substantially similar challenge.

Professor Lessig points out that the Supreme Court declined to grant certiorari in Delaware v. New York, a 1966 equal protection challenge to states’ use of winner-take-all elections to choose presidential electors. The cert denial suggests that this issue remains unresolved. But Lessig and the other law professors appear to have missed the Supreme Court’s subsequent ruling in Williams v. Virginia State Board of Elections, 393 U.S. 320 (1969).

In Williams, a class of Virginia voters similarly tried to overturn a state’s statute for choosing presidential electors. Virginia used a general ticket at the time, under which “[e]ach voter may vote for one elector from each congressional district of the State . . . and for two electors from the State at large.” Va. Code § 24–7 (1950). The top vote-getters for each seat were then elected. So if 51% of people voted straight ticket for a party’s electors, then that party would win 100% of the seats.

The district court in Williams therefore recognized that general tickets “give[] the choice of all of the electors to the statewide plurality of those voting in the election — ‘winner take all’ — and accord[] no representation among the electors to the minority of the voters.” Id. at 622. Correctly or not, electors have long been viewed as mere conduits for electing their parties’ presidential candidates. No sane Virginian would have chosen six electors for one candidate and six for his rival.

The plaintiffs advanced three arguments against Virginia’s elector law:

(1) [T]he intendment of Article II, Section 1, providing for the appointment of electors is that they be chosen in the same manner as Senators and Representatives, that is two at large and the remainder by Congressional or other equal districts; (2) the general ticket method violates the “one-person, one-vote” principle of the Equal Protection Clause of the Fourteenth Amendment, i. e., the weight of each citizen’s vote must be substantially equal to that of every other citizen; and (3) the general ticket system gives a citizen in a State having a larger number of electors than Virginia the opportunity to effectuate by his vote the selection of more electors than can the Virginian.

288 F.Supp. 622, 624 (1968). The plaintiffs also offered statistics similar to those presented in Lessig’s and others’ essays. The court noted: “[A]s the plaintiffs demonstrate, while in 1960 the popular vote in Virginia for the Republican nominee was only 52.4%, and the Democratic nominee received 47%, of the vote cast, the Republican was credited with 100% of Virginia’s electoral votes and the Democrat with none.” Id. at 625–26.

Yet the three-judge district court unanimously rejected the plaintiffs’ claims. They appealed directly to the Supreme Court under 28 U.S.C. § 1253, and the Supreme Court summarily affirmed the lower court’s ruling. See 393 U.S. 320 (1969). Although this decision leaves us without a written opinion of the Court, it still provides binding precedent adopting the lower court’s ruling on the merits. See Mandel v. Bradley, 432 U.S. 173, 176 (1977) (“Summary affirmances . . . . prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.”); see also, e.g., Schweikert v. Herring, No. 3:16-cv-00072 (W.D.V.A. Dec. 2, 2016) (applying Williams), New v. Pelosi, No. 1:08-cv-09055 (S.D.N.Y. Oct. 29, 2008) (same); Hitson v. Baggett, 446 F. Supp. 674 (1978) (same). And that Williams was decided as a memorandum opinion, per curiam, and without dissent indicates the Court considered the matter uncontroversial.

It’s “one person, one vote,” not “one person, one representative.”

The district court in Williams found no vote dilution when a state uses a general ticket to select its presidential electors. The court held that these winner-take-all laws do not violate the principle of “one person, one vote,” reasoning:

In the selection of electors the [winner-take-all] rule does not in any way denigrate the power of one citizen’s ballot and heighten the influence of another’s vote. Admittedly, once the electoral slate is chosen, it speaks only for the element with the largest number of votes. This in a sense is discrimination against the minority voters, but in a democratic society the majority must rule, unless the discrimination is invidious. No such evil has been made manifest here. Every citizen is offered equal suffrage and no deprivation of the franchise is suffered by anyone.

288 F.Supp. at 627. The court then quoted recent Senate debates about the Electoral College at length, embracing a Senator’s argument that winner-take-all does not disenfranchise losing voters because

no votes are lost when validly cast in an election; . . . they are actually counted toward the final decision and if, insufficient for victory, they have simply exhausted their power as votes. . . . By voting, the minority party voters have set a figure which must be matched and exceeded by opposing voters before the State’s electoral vote bloc is awarded to the opponent.

Id. (quoting Memorandum of the Subcommittee on Constitutional Amendments of the Committee on the Judiciary at 23).

Though the logic of “one person, one vote” certainly has rhetorical force in critiquing the Electoral College, it is most relevant to the interstate vote dilution sanctioned by the Constitution’s awarding one elector for every Senator — not the intrastate distortion of voters’ preferences due to winner-take-all selection of electors. (More on this later.)

General ticket representation does not violate equal protection when choosing congressmen, so why should it when choosing electors?

The Williams court also pointed out that the Supreme Court has countenanced general ticket at-large congressional elections. This is another powerful observation that continues to be relevant today.

General ticket congressional elections have historically functioned like winner-take-all elections. For example, New Jersey began experimenting with general tickets with the rise of political parties. Federalists won all of the state’s five seats in the House of Representatives through general ticket elections in 1794 and 1796. By 1798, however, increasingly popular Democratic-Republicans had a chance of winning and shutting these Federalists out of Congress. The New Jersey legislature responded by passing a bipartisan bill creating five congressional districts in the state. Despite Federalists’ attempt to gerrymander their way to victory, 1798 saw the election of three Democratic-Republican and two Federalist Representatives. In 1800 the newly dominant Democratic-Republicans reverted back to at-large general ticket elections. Democratic-Republicans held onto all five of New Jersey’s seats until the party dissolved in the 1820s, with one exception — the election of 1812, which temporarily created congressional districts again.

Congress first tried to cut back on states’ opportunistic use of general tickets with an amendment to the Apportionment Act of 1842. The amendment required states with multiple Representatives to draw single-member districts instead of holding at-large elections. As Senator Isaac Bates argued: “The general ticket (at-large) system disenfranchises the minority in a state, however near it may approach a majority, and in however so many districts it would actually constitute a majority, and be entitled to a representation in Congress.” 1842 Congressional Globe, at 793. Representative Garrett Davis voiced familiar concerns about the disproportionate influence some states could play by using this winner-take-all method: “Massachusetts, New York, Pennsylvania, Ohio, and Indiana, by adopting the general ticket system, would have the majority of the house, and would be able to control the legislative power of the Government.” Id. at 340. The amendment narrowly passed, but several states ignored the districting requirement.

Ratification of the Fourteenth Amendment in 1868 did not stop states from holding these general ticket elections either. Since then, 40% of states with multiple Representatives have used general tickets for congressional races, including: Alabama, Arizona, California, Florida, Kansas, Kentucky, Hawaii, Idaho, Maine, Minnesota, Missouri, Montana, New Mexico, North Dakota, South Dakota, Virginia, and Washington. For example, New Mexico used a general ticket to elect its Representatives from the time it was granted statehood through 1966. (In 1967 Congress again enacted a ban on at-large elections in states with more than one Representative. See 2 U.S.C. § 2c. This time the districting mandate worked.)

In 1964 — a time when 12 sitting Representatives from 3 states had been elected via general tickets — the Supreme Court confronted the question of whether the Equal Protection Clause’s “one person, one vote” principle applied to congressional elections. The Court held:

[C]onstrued in its historical context, the command of Art. I, § 2 that Representatives be chosen “by the People of the several States” means that, as nearly as is practicable, one man’s vote in a congressional election is to be worth as much as another’s. This rule is followed automatically, of course, when Representatives are chosen as a group on a statewide basis, as was a widespread practice in the first 50 years of our Nation’s history.

Wesberry v. Sanders, 376 U.S. 1, 7–8 (1964). This practice certainly was widespread: Half of the states held general ticket congressional elections by 1792.

The Williams court cited Wesberry and declared: “If the plan is legally permissible in the selection of Congressmen, it may hardly be stigmatized as unlawful in choosing electors.” 288 F.Supp. 622 at 628. Though general ticket congressional elections have faded from our collective memory, they are banned only by statute and could legally be reinstated by Congress — undercutting the constitutional argument against winner-take-all selection of presidential electors.

Williams was probably the best shot challengers will ever get.

It’s worth noting Williams’s opportune timing. The district court issued its opinion four months before the 1968 presidential election, and the Supreme Court affirmed two months after the election. This was the second-closest election in the 20th century — decided by just half a million votes representing a 0.70% margin — and followed on the heels of the even closer 1960 election, which John F. Kennedy won by just over 100,000 votes (0.17%). Third-party candidates won Electoral College votes in the Deep South in both elections (46 electors in 1968!). These events brought Congress in 1969 the closest it has ever been to abolishing the Electoral College through a constitutional amendment. It would be an understatement to say that complaints against the Electoral College were salient when Williams was decided in January 1969.

And this constitutional drama unfolded against a backdrop of expanded judicial intervention in election issues. The ink was still drying on the Voting Rights Act of 1965. The Supreme Court signaled increasing willingness to supervise elections in Baker v. Carr (1962) and Reynolds v. Sims (1964). Chief Justice Warren himself wrote in Reynolds: “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.”

If the Supreme Court were ever going to strike down an Electoral College winner-take-all law, then it would have in January 1969. Yet that moment came and went. The era of expansive judicial engagement in election issues has long since passed, and the Court seems unlikely to change course in the foreseeable future.

Bush v. Gore does not undermine Williams.

“Summary dismissals lose their binding force when ‘doctrinal developments’ illustrate that the Supreme Court no longer views a question as unsubstantial, regardless of whether the Court explicitly overrules the case.” Bostic v. Schaefer, 760 F.3d 352, 373 (4th Cir. 2014) (quoting Hicks v. Miranda, 422 U.S. 322, 344 (1975)). But I see no reason to think that doctrinal developments have made the questions presented in Williams a closer call.

Specifically, Bush v. Gore appears to have done nothing to change the legal landscape in which Williams was decided. (Assuming, of course, that Bush v. Gore has any precedential value in the first place.) True, Bush v. Gore is a fair basis for asking the Supreme Court to intervene in states’ administration of presidential elections. But the Court heard challenges related to the selection of presidential electors long before this in Williams v. Rhodes, 393 U.S. 23 (1968), Ray v. Blair, 343 U.S. 214 (1952), and McPherson v. Blacker, 146 U.S. 1 (1892).

Professor Lessig’s article includes a draft argument that quotes a couple passages from Bush v. Gore, but I don’t think these quotations do much work either. For example:

The individual citizen has no federal constitutional right to vote for Electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. . . . When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.

531 U.S. 98, 104 (2000). This passage just summarizes McPherson v. Blacker, 146 U.S. 1 (1892), which Williams addressed. 288 F. Supp. 622 at 626. And the statement simply means that a state must afford each of its citizens’ votes equal weight. As discussed above, Williams already confronted this issue in the context of the Electoral College and concluded that “[t]his rule is followed automatically . . . . when [electors] are chosen as a group on a statewide basis.” Id. at 628 (quoting 376 U.S. at 7–8).

Another quotation says: “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” 531 U.S. at 104. This statement refers to Florida’s uneven manual recount of contested ballots in 2000, which is very different from a state’s statutory method for awarding presidential electors. I don’t see any of this language being relevant to states’ laws that award presidential electors on a winner-take-all basis. These laws are not “arbitrary” (in fact, the Williams court called them not “unwise[]”), and they do not treat voters “disparate[ly]” or “value one person’s vote over that of another” (again, see above).

Other excerpts just quote older cases like Reynolds v. Sims, which were discussed and distinguished in Williams.

A Delaware v. New York-like approach is even more likely to fail.

Professor Lessig advocates that states like California and New York sue other states for using winner-take-all laws to choose their presidential electors. Delaware tried this approach in Delaware v. New York, but the Supreme Court denied certiorari. Some courts have viewed this cert denial as a judgment on that case’s merits since the Court unquestionably had original jurisdiction over the dispute. See, e.g., Penton v. Humphrey, 264 F.Supp. 250, 252 (1967). This interpretation is probably correct, but cert denials generally are not understood to create binding precedent. More significantly, the only differences between Delaware and Williams actually make this type of challenge less likely to succeed.

In particular, the Fourteenth Amendment’s Equal Protection Clause says that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” This provision is not violated when a state infringes on the equal protection rights of citizens in other states. Indeed, “[t]here is no legal precedent for inter-state equal protection claims.” Jennings Wilson, Bloc voting in the Electoral College: How the ignored states can become relevant and implement popular election along the way, 5 Election Law Journal 384, 387 (2006). So even if Virginia’s winner-take-all system violated Californians’ equal protection rights, this injury would not be cognizable under any reading of the Fourteenth Amendment.

Moreover, it’s somewhat misleading to blame winner-take-all systems for the significant interstate inequality in citizens’ votes. For example, another post by Professor Lessig illustrates the problem by showing that Alaskans have nearly three times as much Electoral College representation per capita as do Texans. That is, roughly 750,000 Alaskans are represented by three electors — the constitutional minimum reflecting the state’s Representative and two Senators — or about one elector per 250,000 people. In contrast, more than 27 million Texans are represented by 38 electors, about one elector per 750,000 people. But if you ignore the two electors each state gets for its Senators regardless of the state’s population, then Alaskans and Texans are not unequal in the Electoral College: Each state gets approximately one elector for every 750,000 people. And the “one person, one vote” cases explicitly recognize that the inequality arising from the Constitution’s awarding one bonus elector for every Senator is an exception to this general principle. See Reynolds v. Sims, 377 U.S. 533, 574 (1964); Gray v. Sanders, 372 U.S. 368, 378 (1963).

While I am sympathetic to the motivations underlying the theory that winner-take-all laws violate the Constitution, Supreme Court precedent appears to have foreclosed this argument. If I’m right, that is unfortunate. But if the courts can’t help fix our democracy, then maybe it’s best to redirect reform efforts at a bipartisan legislative project to get states like Texas and West Virginia to join the National Popular Vote Interstate Compact — similar to Lessig’s inclusive alliance with Tea Party Patriots founder Mark Meckler. I hope to work on this pitch in future posts.

* This article expresses Mr. Cline’s views and does not necessarily reflect the views of his employer.