150 years later: Can the 14th Amendment be used to fix the Electoral College?

By Georgia Logothetis

“There is nothing permanent but change,” wrote the ancient Greek philosopher Heroclitus. 150 years ago, the 14th Amendment was ratified by the states, and in the years since, courts and commentators have debated the scope and meaning of its words, dramatically changing the real-word impact of the Amendment over generations. As historian Amanda Bellows lays out in The New York Times this week:

In the last 50 years, the Supreme Court’s evolving interpretations of the 14th Amendment have led to an expansion of civil rights. Its decisions have also produced a system of federalism that significantly differs from that of 1868 through the reallocation of power from the states to the federal government. Thanks to the 14th Amendment, with its plain text authorizing Congress to act in perpetuity, the contours of our federal system continue to shift.
The question remains: How will the Supreme Court interpret the rights promised by this critical amendment in future cases of national importance? We can only hope that, in the words of Frederick Douglass, it will continue to “give full freedom to every person without regard to race or color in the United States.” While 150 years have passed since the ratification of the 14th Amendment, it is not too late to give this powerful document its due.

Jeffrey Rosen at The Atlantic also provides some important background on how the 14th has been interpreted, especially regarding Justice Kennedy’s impact on expanding the reach of the 14th Amendment:

Ratified in 1868, the Fourteenth Amendment was originally intended to allow Congress and the courts to protect three fundamental values: racial equality, individual rights, and economic liberty. But the amendment was quickly eviscerated by the Court, and for nearly a century it protected economic liberty alone. Justice Kennedy embraced all three values of the Fourteenth Amendment, invoking it to protect reproductive autonomy and some forms of affirmative action, as well as to establish marriage equality, but also to limit federal economic regulations, such as the Affordable Care Act. His replacement will determine which vision of the amendment prevails for decades to come.

I want to highlight one specific aspect of the 14th Amendment that plays an enormous role in Equal Citizens’ mission and work — the Equal Protection clause. As you know, our group is a bit different than traditional advocacy groups in that, led by Harvard Law Professor Lawrence Lessig, we have a robust legal advocacy program in addition to traditional grassroots advocacy. That means Professor Lessig and our chief counsel, Jason Harrow, work with some of the nation’s top attorneys to advance our vision of equal and fair representation in courts across the country.

One of our key legal campaigns is Equal Votes, an endeavor that seeks to have the Supreme Court hold that the current winner-take-all system of awarding electoral college votes is unconstitutional. We have four cases working their way through the courts in four states — two red, two blue — with both Republican and Democratic plaintiffs making the argument that allocating ALL of a state’s electoral college votes to a single candidate violates various provisions of the Constitution.

You can dive in depth into our briefs here, but for now, let’s take a look at the equal protection argument, one of many we’re presenting in each of the cases. Professor Lessig laid out the case in a post last year when we began the legal campaign:

[T]he 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, while 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.

Because that system is not mandated by the Constitution and was created by the states, we’re fighting in four different federal courts across the country to say that the winner-take-all-system violates the 14th Amendment. You can read more about the arguments underpinning our cases from our chief counsel Jason Harrow here.

If we do get to the Supreme Court, will it hold that the Equal Protection clause of the 14th Amendment protects voters in the electoral college context? It’s a novel argument (and novel arguments are our specialty!) but there is a real chance that the Court would find exactly that. After all, in Obergefell v. Hodges, the Court noted that “in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”

Winner-take-all has indeed been largely unchallenged for a long time (a majority of states have been using the system since 1824). But with two of the last three presidents taking office after having lost the popular vote, and with experts predicting that we’re going to see more such popular vote/electoral college splits in the future, it’s clear that the state-created concept of winner-take-all is unfair and yes, unconstitutional. So as we mark the 150th anniversary of the 14th Amendment, let’s celebrate the fact that it gives us a strong argument to end a system that has caused injustice and unfairness in the electorate for far too long.