Group of law firms file complaint challenging winner-take-all approach to electoral college


[JURIST] A large group of law firms and prominent law professors, led by David Boies [offical profile] of Boies Schiller Flexner, LLP, alongside the Leauge of United Latin American Citizens (LULAC) [websites] has filed four lawsuits [press release] challenging the winner-take-all approach to the electoral college.

Under the Constitution, the electoral college [National Archives backgrounder] provides that the “electors” of the college are the individuals who choose the president and vice president. However, the states are permitted to determine how these electors are selected. Currently, 48 states and Washington, DC, have winner-take-all systems through which the leading candidate’s political party selects all electors. Only Maine and Nebraska have a form of proportional representation. The winner-take-all approach, critics note, is what enables a candidate to win the election even when losing the popular vote.

The lawsuits challenging these practices were filed in federal courts in Massachusetts, California, Texas and South Carolina [complaints, PDF].

All of the lawsuits advance an argument claiming that this system violates a constitutional right to an equal vote in elections and First Amendment rights of expression and association. The lawsuits also claim a violation of the one-person, one-vote rule, articulated by the Supreme Court in Reynolds v. Sims [opinion] as:

The rule that, under the Equal Protection Clause of the Constitution, legislative voting districts must be the same in population size. The idea behind the rule is that one person’s voting power ought to be roughly equivalent to another person’s within the state.

In the press release, Boies states:

Under the winner-take-all system, U.S. citizens have been denied their constitutional right to an equal vote in Presidential elections. This is a clear violation of the principle of one person, one vote. We filed these cases in order to uphold the rights of every citizen. … [A]ll Americans deserve to have their votes count.

In the last election, a majority of the popular vote in Massachusetts and California went to Hilary Clinton. A majority of the vote in Texas and South Carolina went to President Donald Trump.