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EQUAL VOTES: OUR FIGHT TO FIX THE ELECTORAL COLLEGE

The Legal Argument


The president is elected by the Electoral College. Currently, if you don’t vote for the candidate who wins your state, your vote counts for nothing in the Electoral College. We’re challenging this unequal, “winner take all” system as being unconstitutional and in violation of the Equal Protection Clause of the Fourteenth Amendment.

Contrary to what most people might think, the winner-take-all allocation of electoral votes is not in the Constitution. It was adopted by 48 states to give themselves more power in the presidential election.

We believe the system violates our amended Constitution. The Equal Protection Clause of the 14th Amendment guarantees that all of us, and all of our votes, must be treated equally under the law. Winner-take-all breaks that guarantee. Over 52 million votes were ignored in the 2016 election because of winner-take-all.

It is time for the Supreme Court to end it. The Constitution, through the Electoral College, does create some inherent inequality. But that is no justification for allowing the states to create even more—especially when the consequence of that inequality is to systematically skew the focus of presidential campaigns.There is no good reason for this inequality.  There is no democratic justification for it. It has made our presidential elections the least democratic of all our elections.

Why Winner-take-all SYSTEM is unfair

At the core of democracy lies a simple principle—that all votes should count equally. Whether you’re white or black, rich or poor, from Rapid City, SD or Cedar Rapids, IA, your vote should count the same as the vote of anyone else. “One person, one vote!” This principle is violated by the way we elect our president.

Because of the winner-take-all system of allocating Electoral College votes, the only votes that count are those for the person who wins the state in which they were cast. In 2016, this resulted in over 52 million votes being ignored in the presidential election – that is hardly being counted equally.

All but two states (Maine & Nebraska) assign all their Electoral College votes to the winner of the popular vote in that state—regardless of the margin of victory. For example, in the last election:

Hillary Clinton beat Donald Trump by just 45,000 votes in Minnesota, winning 46.4% to 44.9%. Yet she got 100% of Minnesota’s 10 Electoral College votes, while Trump got zero. In Michigan, Trump beat Clinton by just 10,000 votes, but he got every single one of their 16 Electoral College votes, while she got zero. This is the consequence of winner-take-all: the votes for president of millions of U.S. citizens get discarded, simply because they are not in the majority in a particular state.

States originally adopted winner-take-all because it amplified the power of their votes. But once (practically) every other state had embraced winner-take-all, that effect was nullified, and presidential campaigns shifted their focus. Under winner-take-all, the only states in which it makes any sense for a presidential candidate to campaign are “battleground states”— states in which the popular vote can be expected to be so close that one side has a real chance to beat the other.

In 2016:

  • Two-thirds of campaign events happened in just six battleground states—Florida, North Carolina, Ohio, Pennsylvania, Virginia, and Michigan.
  • Four battleground states—Florida, North Carolina, Ohio and Pennsylvania—saw 71% of campaign ad spending and 57% of candidate appearances.
  • The 14 battleground states saw 99% of ad spending and 95% of candidate campaign stops.

 The consequence of this concentration for our democracy is profound. To get elected president, candidates must persuade not a majority of American voters, but a majority of voters in only 14 states.

Voters in battleground states tend to be whiter and older than Americans generally, so presidential platforms are skewed towards those populations. The issues that matter to younger Americans, and to people of color, are thus largely invisible (or hidden) in battleground campaigns. Winner-take-all in effect outsources the selection of the president to a fraction of America’s voters (35% in 2016)—a fraction that does not in any sense represent the majority of America.

Even worse, these rules increase the probability of a “minority president”—a president who loses the popular vote, yet wins in the Electoral College. Two of our last three presidents have taken office after losing the popular vote, and that probability will likely increase over time.

LEARN MORE ABOUT THE CASE

How will the lawsuit work?

We filed lawsuits in federal courts on behalf of real voters perpetually disenfranchised by the winner-take-all system. We have identified voters in four safe states who believe they have been denied representation in presidential elections for decades because of this system. The goal is to have the Supreme Court rule on winner-take-all in time for the 2020 presidential election.

What's happened in the case so far?

On February 21, 2018, a coalition of law firms led by Boies Schiller Flexner LLP coordinated the filing of four lawsuits in four states on behalf of a diverse group of Democrats and Republicans whose votes for President don’t matter in the general election under the winner-take-all system.

We are filing suit against officials in California, a solid blue state with 55 electoral votes, on behalf of Republicans who say their votes for President are being discarded when California predictably nominates a slate of all Democratic electors. The plaintiffs in California are comedian and actor Paul Rodriguez, Republican State Assemblyman representing the 76th District, Rocky Chavez (both are Republicans who voted for Donald Trump in 2016), and California League Of United Latin American Citizens (LULAC).

We are filing suit against officials in Texas, a solid red state with 38 electoral votes, on behalf of Democrats who say their votes for President are being discarded when Texas predictably nominates a slate of all Republican electors. We are also claiming in Texas that the winner-take-all system violates the Voting Rights Act, because it fails to give meaningful effect to the preferences of Latino and African-American voters, whose votes have historically been diluted in Texas. The plaintiffs in Texas are the League Of United Latin American Citizens (LULAC), Rev. Joseph C. Parker, Jr. of Austin, former president of LULAC Hector Flores of Duncanville, Mary Ramos of Houston, Lupe Torres of San Antonio, and Ray Velarde of El Paso. They represent Latino and African-American Democratic voters residing in Texas.

We are filing suit against officials in Massachusetts, a solid blue state with 11 electoral votes, on behalf of Republicans who say their votes for President are being discarded when Massachusetts predictably nominates a slate of all Democratic electors. The plaintiffs in Massachusetts are former Republican Governor William Weld, R.J. Lyman, and Robert Capodilupo.

We filed a suit against officials in South Carolina, a solid red state with 9 electoral votes, on behalf of Democrats whose votes for President are being discarded when South Carolina predictably nominates a slate of all Republican electors. We are also claiming that the winner-take-all system in South Carolina violates the Voting Rights Act, because it fails to give meaningful effect to the preferences of African-American voters, whose votes have historically been diluted in South Carolina. The plaintiffs in South Carolina are Cory C. Alpert of Columbia, Benjamin Horne of Greenville, and Charlette Plummer-Wooley of North Augusta.

What’s the constitutional argument for Equal Votes?

The 14th Amendment to the Constitution establishes a principle of equality that has been applied to systems that affect the weight of a citizen’s vote. This is the principle of “one person, one vote.” Roughly speaking, that principle requires that governments weigh the vote of citizens as equally as possible. As much as possible, my vote should be worth the same as your vote. By ignoring the votes of anyone who did not vote for the winner of the popular vote in a specific state, the way we elect our president currently violates that basic, constitutionally protected right.

Would winning this case threaten the National Popular Vote project?

Absolutely not. The essence of our case is the principle that votes should be counted equally. The NPV project is that principle, perfected. If the NPV project succeeds, then the president would be elected by a system that counted everyone’s vote equally. That’s why we strongly support the NPV project. But we can’t put all our eggs in one basket. While NPV would take many years to accomplish, Equal Votes is a change that can make our elections more democratic in time for the 2020 election.

In fact, we think Equal Votes and the NPV project work well together. We explain our argument in greater detail in this blog post.

HOW YOU CAN HELP

We’re taking our fight to reform the Electoral College to four different states — California, Texas, Massachusetts and South Carolina. We’ve recruited some of the nation’s top election and constitutional law attorneys to be on our team. Your donation directly funds our legal efforts and helps us keep the cases alive as they make their way though four different state court systems and hopefully — all the way to the United States Supreme Court.

JOIN THE FIGHT

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