Equal Citizens Asks Supreme Court to Declare Winner-Take-All Unconstitutional

Forty-eight states award all of their state's electoral votes to the presidential candidate receiving the most popular votes inside each separate state.  Maine and Nebraska award two of their electoral votes to the statewide winner on a winner-take-all basis, but award the remainder of their electoral votes to the candidate receiving the most popular votes in each separate congressional district. 

On February 21, 2018, EqualCitizens.us, a non-profit organization founded by Harvard Law Professor Lawrence Lessig, organized a coalition of law firms, organizations, and professors that brought lawsuits in Massachusetts, Texas, South Carolina, and California asking that federal courts declare the existing state winner-take-all laws unconstitutional. Op-Ed in The Hill     The lawsuits sought to invalidate both the statewide and district-level winner-take-all methods of awarding electoral votes. Click here to read the complaints and briefs and follow the progress of the four lawsuits brought by Equal Citizens. American Bar Journal article describing lawsuits. Press release from lawfirm of Boies Schiller Flexner LLP announcing lawsuits.  November 20, 2016 email presenting a detailed legal argument for the lawsuits from Atlanta attorney Jerry L. Sims of Davis Gillett Mottern & Sims LLC.

On July 21, 2020, the U.S. Appeals Court for Fourth Circuit ruled 2-1 to uphold current state winner-take-all laws in the South Carolina case.  Judge Wynn's dissenting opinion argued for allowing the lawsuit to proceed.  Court's decision (Judge Wynn's dissent starts at page 29).  The Fourth Circuit heard the South Carolina case on On May 26, 2020.  Earlier District-Court opinion in the South Carolina case.

On February 27, 2020, the U.S. Appeals Court for the 5th Circuit in New Orleans ruled 3-0 that the challenged state winner-take-all laws are constitutional.  This was the first decision at the Court of Appeals level in response to four lawsuits filed asking that the federal courts to declare existing state winner-take-all laws unconstitutional. Court's opinion in the Texas case.   AP story entitled "Court OKs Texas winner-take-all presidential elector system." 

In February 2021, a petition was filed with the U.S. Supreme Court appealing lower court decisions upholding the winner-take-all method of awarding electoral votes. Article

Existing winner-take-all laws are state laws—they are not part of the U.S. Constitution.  The winner-take-all method of choosing presidential electors was never debated by the 1787 Constitutional Convention or mentioned in the Federalist Papers.

Only three states had winner-take-all laws in the first presidential election in 1789, and all three repealed them by 1800. In 1789, presidential electors were chosen from congressional districts in Massachusetts, from special presidential-elector districts in Virginia, and by counties in Delaware. The Governor and his Council appointed the state’s presidential electors in New Jersey. State legislatures appointed presidential electors in the other states.

In the nation’s first competitive presidential election in 1796, Thomas Jefferson lost the Presidency to John Adams by three electoral votes in the Electoral College. Jefferson lost the election because presidential electors were chosen in 1796 by district in the heavily Jeffersonian states of Virginia and North Carolina, and Jefferson lost one district in each state.  Had Jefferson received all of the electoral votes from Virginia and North Carolina, he would have won the Presidency.  Jefferson and his supporters became even more alarmed about losing electoral votes in Virginia when Jeffersonian candidates lost several congressional districts in the 1798 midterm elections in Virginia. 

On January 12, 1800, Thomas Jefferson wrote James Monroe (then governor of Virginia, and later President):

“On the subject of an election by a general ticket [winner-take-all], or by districts, … all agree that an election by districts would be best, if it could be general; but while 10 states choose either by their legislatures or by a general ticket [winner-take-all], it is folly and worse than folly for the other 6 not to do it.” 

As a result, the Virginia Legislature quickly passed a winner-take-all law in time for the 1800 election—thereby assuring Jefferson of all of Virginia's electoral votes.

Meanwhile, the Federalist majority in the legislature of John Adam’s home state of Massachusetts—alarmed by rising support for Jefferson in the state—repealed the state’s district system—thereby assuring John Adams of all the state’s electoral votes in 1800.  

This triggered a domino effect in which each state’s dominant political party adopted winner-take-all so that it could deliver the maximum number of electoral votes to its party’s nominee.   Ten states enacted winner-take-all by 1824 when Missouri Senator Thomas Hart Benton said:

“The general ticket system [winner-take-all], now existing in 10 States was … not [the offspring] of any disposition to give fair play to the will of the people. It was adopted by the leading men of those states, to enable them to consolidate the vote of the State.”

By 1836, all but one state had enacted laws specifying that their state’s voters would vote for presidential electors on a winner-take-all basis.  By 1880, all states were using this system.

In 1888, incumbent Democratic President Cleveland won the national popular vote, but lost the electoral vote.  When Democrats won control of the legislature in the then-regularly-Republican state of Michigan in 1890, they replaced winner-take-all with district election of presidential electors.  The Republicans challenged the Democrat’s change.  In 1892, the U.S. Supreme Court upheld district elections and ruled in McPherson v. Blacker:

“The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket [i.e., the winner-take-all rule], nor that the majority of those who exercise the elective franchise can alone choose the electors. … In short, the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States.”

The Republicans restored winner-take-all in Michigan as soon as they regained control of the legislature.

Maine adopted district elections for its electors in 1969, and Nebraska did so in 1992.

Massachusetts has changed its method of appointing electors 11 times.  Its most recent legislative action in this area was adoption of the National Popular Vote interstate compact.  The compact will go into effect when it is enacted by states possessing a majority of the electoral votes (270 of 538). 

The plaintiffs in the lawsuits claim that state winner-take-all laws violate the Equal Protection clause of the 14th Amendment as well as the First Amendment. 

The Equal Protection clause of the 14^th Amendment states:

“No state shall … deny to any person within its jurisdiction the equal protection of the laws.”

Article II, section 1 of the U.S. Constitution gives each state the power to choose the method of appointing its presidential electors. It states:

“The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." 

In the 1968 case of Williams v. Rhodes (393 U.S. 23), the U.S. Supreme Court ruled that Article II's grant of power to the states is subject to the 14th Amendment. 

"There of course can be no question but that this section does grant extensive power to the States to pass laws regulating the selection of electors. But the Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution. For example, Congress is granted broad power to ‘lay and collect Taxes,’ but the taxing power, broad as it is, may not be invoked in such a way as to violate the privilege against self-incrimination. Nor can it be thought that the power to select electors could be exercised in such a way as to violate express constitutional commands that specifically bar States from passing certain kinds of laws. Clearly, the Fifteenth and Nineteenth Amendments were intended to bar the Federal Government and the States from denying the right to vote on grounds of race and sex in presidential elections. ... Obviously we must reject the notion that Art. II, § 1, gives the States power to impose burdens on the right to vote where such burdens are expressly prohibited in other constitutional provisions. We therefore hold that no State can pass a law regulating elections that violates the Fourteenth Amendment’s command that ‘No State shall . . . deny to any person . . . the equal protection of the laws.’”

The plaintiffs in the lawsuits point out that a presidential election is a two-stage process to fill a single office.  After counting all the votes for President cast in the state on Election Day in early November, the state then gives 100% of the state's electoral votes to the voters supporting the presidential candidate who received a plurality of the votes, while giving the supporters of other candidates no electoral votes.  That is, the state counts and then immediately discards the votes cast by supporters of the other candidates.  The votes cast by supporters of the other candidates do not get counted at the decisive second stage of the process (that is, the meeting of the Electoral College in mid-December).  Thus, the supporters of the other candidates are shut out of decisive second stage of the process.  This is precisely what the Jeffersonians in Virginia in 1800 intended by adopting the winner-take-all method of awarding electoral votes and precisely what concerned Missouri Senator Thomas Hart Benton in 1824. 

The table shows the statewide presidential vote in Maine in 2016.  The Democratic Clinton-Kaine presidential slate received the most popular votes in the state in 2016 -- a 47.8% plurality.  Suppose for the moment, for sake of argument, that Maine followed the practice of 48 other states and the District of Columbia and awarded all of its four electoral votes on a statewide winner-take-all basis.  (In fact, Maine and Nebraska do not do this, as discussed shortly).  Under this assumption, all four candidates for the position of presidential elector nominated by the Maine Democratic Party would be have been declared elected as member of the Electoral College.  When the Electoral College met on December 19, 2016, all four of Maine's electoral votes would have been cast for the Clinton-Kaine slate.  If this had happened, the 335,593 voters who supported the Trump-Pence slate (44.9% of the state's voters) and all the voters who supported the six other slates would have, in effect, been treated as if they had voted for the Clinton-Kaine slate.  A majority of the votes cast (390,192 or 52.2%) would have, in effect, been transferred to the Clinton-Kaine slate and had no influence on the decisive second stage of the process of electing the President.  The plaintiffs in the lawsuits argue that this violates the Equal Protection clause of the 14^th Amendment.  The plaintiffs also argue that this violates the First Amendment rights of these voters to voice their choice.  

In fact, Maine (and Nebraska) do not award all of the state's electoral votes to the presidential candidate receiving the most popular votes in the state. In fact, they each award only two of their electoral votes on a statewide winner-take-all basis.  So the above table actually applies only to two of Maine's four electoral votes.

The plaintiffs in the lawsuits argue that the operation of the winner-take-all rule at the congressional district level also violates the Equal Protection clause of the 14^th Amendment (and the First Amendment).  Maine (and Nebraska) award their remaining electoral votes on a winner-take-all basis by congressional district.  

The table shows the presidential vote in the 1st congressional district of Maine in 2016. The Democratic Clinton-Kaine presidential slate received the most popular votes in the 1st congressional district in 2016 -- a 54% plurality.   In this district, the 154,384 voters who supported the Trump-Pence slate (39% of the district's voters) and all the voters who supported the six other slates would have, in effect, been treated as if they had voted for the Clinton-Kaine slate.  A total of the 181,555 votes cast (46%) would have, in effect, been transferred to the Clinton-Kaine slate and had no influence on the decisive second stage of the process of electing the President.   

The table shows the presidential vote in the 2nd congressional district of Maine in 2016. The Republican Trump-Pence presidential slate received the most popular votes in the 2nd congressional district in 2016 -- a 51% plurality.   In this district, the 144,817 voters who supported the Clinton-Kaine slate (41% of the district's voters) and all the voters who supported the six other slates would have, in effect, been treated as if they had voted for the Trump-Pence slate.  A total of the 172,248 votes cast (49%) would have, in effect, been transferred to the Trump-Pence slate and had no influence on the decisive second stage of the process of electing the President.