The Road To The Supreme Court

Oct 5, 2017 · 5 min read

by Jason Harrow, attorney and Equal Votes campaign advisor

The ultimate goal of the Equal Votes project is to have the U.S. Supreme Court find that the winner-take-all method of allocating electoral college votes violates the core “one person, one vote” principle in our Constitution. The result of a favorable decision by the Supreme Court would be the nationwide abolition of the winner-take-all system and its replacement with a system that treats every vote for President equally. But many of you have asked us: how do we get to the Supreme Court from here, and how long will it take?

The short answers to both: we get to the Supreme Court by first working our way through two stages of lower courts, and we think we can present the Supreme Court with our case before the 2020 election.

Here’s what will happen between now and then. Soon, with the help of our first-rate legal team (including legal all-star David Boies) and supporters from around the country, we’ll be filing at least two lawsuits, in two different states, arguing that winner-take-all allocation of electors violates the “one person, one vote” principle of our Constitution’s Equal Protection Clause. Those cases will be randomly assigned to single federal trial judges in the particular federal district courts in which we file the cases. For example, if we file a case in Massachusetts, the case will be randomly assigned to one of that state’s 18 federal district court judges.

That single judge will then manage the case while it is in district court, the first level of the federal system. These district court judges (also sometimes called “trial court judges,” because they are the only judges in the system that conduct jury trials) have substantial discretion in how they handle a case. Some judges will force parties to move extremely quickly in filing motions or beginning the process of gathering evidence, but others will permit parties to move at a slower pace if they wish. While we don’t know what the schedule will be in the district court, because we have not filed our cases yet, it’s likely that within about a year of filing — or perhaps even sooner — the district court judges will issue written rulings on our legal arguments after they examine our evidence and hear arguments from all sides. For more on why we think federal courts will be good venues for our arguments, see my prior posts here and here.

Once the district court determines whether we win or lose, the case will be immediately appealable by the losing party to a federal court of appeals. Courts of appeals are divided into regions, and they hear cases in randomly-assigned panels of three judges. A case filed in Massachusetts, for instance, can be appealed only to the Court of Appeals for the First Circuit, which is based in Boston and hears arguments in cases initially brought in Massachusetts, Maine, Rhode Island, New Hampshire, and, strangely enough, Puerto Rico.

In the court of appeals, both parties file new briefs making their arguments, and then lawyers argue their cases in front of the three judges assigned to the appeal. Like the district court, the process of briefing, arguing, and getting a decision from the appellate court typically takes about a year. (For the really curious, median decision times for each federal appellate court can be found at the bottom of page 2 here; the First Circuit’s median time to decision is exactly 12 months.)

Those are the first two levels of our federal court system, and at each of those stages, the relevant court must consider our case, address our arguments, and decide whether we win or lose. The final stage is the Supreme Court, which works a bit differently than the other two.

The difference between the Supreme Court and the lower courts is that the U.S. Supreme Court is not required to hear our case. Rather, the loser in the court of appeals may petition the Supreme Court to take up the matter, but the Supreme Court is permitted to turn down that petition. In order for the Supreme Court to hear a case, four justices must vote to put the case on the docket.

There are several factors that the justices of the Supreme Court will consider in determining whether to vote to hear our case, and we think they could point in our favor by the time our case reaches the High Court. For instance, the Supreme Court is likely to take a case in which a state law has been ruled unconstitutional, so if we win in the lower courts, the Supreme Court is very likely to take the case. The Supreme Court is also likely to take up our case even if only one appeals court in one region agrees with us, and one or more other courts disagree. That’s because the existence of conflicting decisions is another factor the Supreme Court uses to determine whether to take up a case. Finally, if we don’t win any victories in the lower courts, the Supreme Court still could hear our case if we convince at least four justices that this is an important and potentially meritorious issue of national importance. We certainly think it is.

In sum, the road to a Supreme Court decision requiring all states to abandon the unfair winner-take-all method of allocating electors will likely take a few years, and it will involve three different levels of the federal court system. But while that may seem like a long time to wait for a definitive resolution, remember that the next presidential election is not until 2020, and we’re hopeful that our case can reach the Supreme Court by then. And considering that our unequal, unfair system has been producing skewed results for over 200 years now, we think it’ll be worth waiting a few additional years to try and finally bring “one person, one vote” to presidential elections. You can join our cause here. We hope you’ll follow our progress for the entire way.

We only have until October 13th to reach our crowdfunding goal to get this legal case off the ground. Please make a donation today!

Equal Citizens

A conversation about (finally) achieving political equality.