The Equal Protection Challenge to Winner Take All: A Legal Guide

Lessig
Lessig
Sep 14, 2017 · 15 min read

(1) What’s the practical problem with the winner-take-all system?

Winner-take-all skews the presidential selection process in two critical ways.

(2) The electoral college is part of the Constitution. How could a Court ever invalidate it?

Our lawsuit will not challenge the Electoral College. We will challenge the winner-take-all rules for allocating electoral college votes. Those rules are not part of the Constitution. They are the creation of state legislatures. It is the states that establish the procedures that erase the impact of any vote for any candidate other than the winning candidate. Those state procedures do not have the sanction of the framers’ Constitution. But they must conform to the standards of our amended Constitution—amended by the 14th Amendment.

(3) But doesn’t the Constitution give the states “plenary power” to choose their electors however they wish?

It does, but let’s be clear about what the Supreme Court has said “plenary power” means. As the Court wrote in Williams v. Rhodes (1968),

(4) Ok, assuming, as Bush states, the “Presidential selection process” is constrained by “one person, one vote,” how does winner-take-all actually deny anyone an equal vote?

This is the critical step in the argument. Certainly, there is no decision by the Supreme Court that squarely addresses the issue. But the reasoning of the Court’s jurisprudence clearly points to the conclusion that winner-take-all violates “one person, one vote.”

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(5) Has the Court really never addressed this issue?

Never directly, indirectly once. And the authority of that one time has now been drawn into question by Bush v. Gore (2000).

(6) Yes, but didn’t the Supreme Court say that the rule of Bush v. Gore applied to that case only?

It is true that the Court did say that its “consideration is limited to the present circumstances.” 531 U.S., at 109. It’s also true that no one really knows what that bizarre statement means. The Court could not, honestly, be saying that it was crafting a 14th Amendment rule for that case alone. It could not have been saying that somehow the 14th Amendment protects Republicans differently from how it protects Democrats. As Justice Scalia said in a law review article,

(7) If you win, won’t the states just allocate electors at the congressional district level?

They may try, but if we win, they won’t be allowed to. The basis upon which we would prevail would also foreclose allocation by congressional district.

(8) If you win, won’t the system become unstable. Won’t third party candidates throw the election into the House?

Under the Constitution, if no candidate for President gets 270 votes in the College, then the House of Representatives must determine who the next President will be. The House votes by state delegation — each state gets one vote. Currently, 31 states are controlled by Republicans. Thus, if the election were decided by the House, it is most likely that the Republican candidate would win, regardless of who won the “one person, one vote” election.

Conclusion

Thus an outline of a legal argument for the conclusion that “one person, one vote” renders winner-take-all in the states unconstitutional. I’m happy to extend the analysis in response to questions raised in the comments. We’re eager for feedback and criticism. Note, we don’t consider “you’re not going to win” criticism. In our view, the question is (1) do we have a correct legal claim, and (2) will bringing that claim help build the movement necessary to bring about reform, whether through this litigation or not.

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