Is the Winner-Take-All Method States Use to Select Presidential Electors Legally Vulnerable?

Posted in: Constitutional Law

In my last column, 2020 Election Legal Maneuvering, I described a recent lawsuit filed by some prominent lawyers and law professors challenging Texas’s use of the so-called Winner-Take-All (WTA) approach to selecting the state’s representatives to the so-called Electoral College. I explained why almost every state has, for selfish reasons, chosen WTA to selfishly maximize its own clout in the presidential campaign process. Because of these selfish motives, states are unlikely to move away from WTA unless they are legally required to do so.

To say that WTA is a rational selfish choice for each state is not, of course, to say that it is permissible under the US Constitution and federal law. The plaintiffs in the Texas lawsuit allege that Texas’s decision to use WTA violates both the Fourteenth Amendment and also the federal Voting Rights Act. In the space below, I briefly assess the major constitutional and statutory voting rights claims asserted in the complaint.

The Constitutional Voting Inequality Claims

As to the Constitution, the plaintiffs’ main argument is that by using WTA, Texas has “rendered meaningless the vote of every . . . Texas citizen” who is not aligned with the party of the leading candidate. “In Texas, it is Democrats, and Hispanic and African-American voters who are effectively disenfranchised by the WTA system of selecting Electors. In each of the last ten presidential elections, the preferred candidate [of these groups] received no Electoral votes, with the Electoral votes going solely to Republican candidates.” The complaint goes on to explain that “WTA violates the Fourteenth Amendment because it counts votes for a losing presidential candidate in Texas only to discard them in determining Electors who cast votes directly for the presidency. Put differently, the WTA system unconstitutionally magnifies the votes of a bare plurality of voters by translating those votes into an entire slate of presidential Electors, all of whom support the nominee of a single political party – while, at the same time, the votes cast for all other candidates are given no effect.”

In essence, the complaint asserts, because members of some identifiable groups never (in recent years) succeed in electing any presidential electors from Texas, these individuals are not having their votes count equally compared to the voters who are consistently winning in the state.

What are we to make of this claim that some peoples’ votes are being “magnified” while other peoples’ votes are being “discarded”? To be sure, the votes cast by people who support a losing candidate in any election are, in some sense, given less effect than the votes cast by people who support the candidate who prevails. But it can’t be unconstitutional for the largest group of voters to win elections. For example, I doubt the plaintiffs would argue that just because Democrats, or blacks or Latina(o)s tend over recent decades to support losing candidates for governor, there is a constitutional problem. Instead, when voters cast votes for a contest to elect a single person, there are always going to be demographic groups who tend to win or lose the office over time. What seems to be driving the plaintiffs’ claims in the Texas case is that when a state selects its presidential electors, it is not choosing a single person, but a group of persons. And a state could, if it wanted, select presidential electors by use of multiple geographical districts (as it does for legislators), or according to the aggregate percentage of popular votes who supported each presidential candidate (akin to the way parliamentary systems elect legislators, with each party receiving a percentage of legislative seats corresponding to its share of the overall popular vote tally). By choosing an “at-large” system (one in which all the voters as a group select all the presidential electors at once), the argument seems to be, Texas has unfairly burdened political and demographic minorities in the state by reducing their presidential elector representation to zero.

Perhaps Texas’ system (and that of many other states) is unfair, but does that make it unconstitutional? I am somewhat doubtful of the claim. For starters, realize that simply because with multiple-office elections we can imagine without much difficulty ways of empowering statewide minorities (such as by proportional representation or breaking the state into geographical districts) doesn’t by itself mean that states are violating the Constitution in adopting an at-large, winner-take-all approach. Indeed, as a general matter, at-large election schemes (which political scientists argue have some advantages over other methods) are not unconstitutional except insofar as they are used to invidiously deny racial minorities a fair chance of winning elections. If an all-white state wanted to use an at-large system for its state legislature, that would not violate the Constitution even if one political party dominated the contests for a long period of time. At-large systems violate the Constitution only when they are used for racially improper purposes.

It is true that the Supreme Court sometimes has found invidious racial motive more readily in the voting setting than in other arenas (like the workplace). But technically, invidious motive is still required to make out a violation of the Fourteenth or Fifteenth Amendment in the voting rights realm. The plaintiffs in the Texas case disagree with me here and assert that proof of invidious motive has been eliminated by the Bush v. Gore ruling in 2000. According to the plaintiffs:

To the extent that there was once an invidiousness requirement to a Fourteenth Amendment claim involving violation of the “one person, one vote” principle, the Court’s decision in Bush v. Gore, 532 U.S. 98 (2000) removed it. There, the Supreme Court invalidated Florida’s process for recounting votes in the 2000 presidential election for violating the “one person, one vote” principle. Notably, there was no suggestion that any unequal treatment of votes under Florida’s process was invidious.

I am far from convinced that Bush v. Gore eliminates any need to prove invidious intent to succeed in Fourteenth/Fifteenth Amendment voting claims. The (in)famous Bush v. Gore litigation was the case about the notorious “hanging chads” and “dimpled chads” (little pieces of cardboard that were not quite punched out of the voting cards with the voter’s stylus). In that dispute, the plaintiffs argued that votes for their favored candidate were not being counted at all (because some counties were using less generous methods than others in discerning voter intent), not that the votes were being tallied and then “discarded” because they were fewer in number compared to the votes for the other candidate. Not counting some validly cast votes at all (Bush v. Gore) seems very different from counting votes but then determining that the votes don’t ultimately affect the outcome of the contest. In the former situation, a state is treating some voters differently from others (by tallying some but not all votes), but in the latter all voters are in a very meaningful sense being treated the same – if and only if you are part of a winning coalition (regardless of your race or political party) do your preferred candidates for presidential elector get selected.

Moreover, the Court in Bush v. Gore was quite insistent (in part because the decision was so hurried and the justices likely understood that they lacked time to fly-speck their opinion and analysis) that its ruling not have wide precedential effect, observing that its “consideration [was] limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” For this reason, the Court itself has not in the last 17+ years ever cited Bush v. Gore in a majority opinion, and only one justice (Clarence Thomas) has cited to it in a separate writing; even then, the citation did not involve the merits of the Fourteenth Amendment claim.

Finally, although the majority in Bush v. Gore may not have discussed invidious motive explicitly, the likelihood of such improper motive lurked in the background and affected the way the ruling was understood. Justice Stevens spoke for many jurists and observers when he wrote in his dissenting opinion:

What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court [is a troubling thing.]

For all these reasons, I don’t think lower courts, or certainly the Supreme Court itself, will find Bush v. Gore particularly supportive of the Texas plaintiffs’ claims. Instead, I think the plaintiffs invoke the ruling in their complaint primarily to tweak the Court and perhaps remind it that it should not have intervened in 2000 at all.

If we assume (or conclude) that invidious intent remains part of what a plaintiff needs to prove to succeed on a Fourteenth or Fifteenth Amendment voting rights claim, then the plaintiffs in the Texas case will have a hard time prevailing since, as I explained in detail in Part One of this series, states have powerful non-invidious reasons for selecting and maintaining a WTA approach to presidential elector selection.

The Claims Under the Federal Voting Rights Act

In some respects, the Texas plaintiffs’ claims under Section 2 of the Voting Rights Act (VRA) are more interesting, because the Supreme Court has, at least in the past, indicated that when racial minorities are unable over time to elect to office the candidates of their choice, they may have a valid statutory claim regardless of whether they can show invidious motive. In other words, under Section 2 of the VRA, the Supreme Court has used a “results test” under which the VRA is construed to prohibit things other than intentional discrimination on the basis of race.

But, as with the constitutional claims, I am somewhat doubtful that a VRA claim will succeed here. For one thing, I am not sure the current Supreme Court will continue to embrace a “results test” and hold that Congress has the power to prohibit state practices that are not grounded in a history of racial discrimination. The Court has not fully examined this question for over a generation, and cases in the last few decades such as City of Boerne v. Flores (1997) and Shelby County v. Holder (2013) reflect (whether rightly or wrongly) a somewhat narrow view of Congress’ power to implement the Reconstruction amendments. It is true that Justice Anthony Kennedy provided the swing vote a few years ago to uphold race conscious affirmative action in the higher educational context (in the Fisher v. University of Texas case), but I do not know that he will have the same instinct with regard to affirmative assistance for minorities in this, the voting, context.

One particularized reason I think the VRA claim in the present dispute might face an uphill battle is that blue states may not be subject to a VRA attack on their use of WTA the way some red states (like Texas) are, because neither racial minorities nor whites in blue states have been systematically unable to elect their presidential electors of choice in recent decades. Perhaps Republicans in states like California consistently lose, but Section 2 of the VRA is focused on protecting racial groups more than political parties, and no racial or ethnic group is a consistent loser in the Golden State (e.g., white voters in California favored Obama in 2008) the way blacks and Latina(o)s fail to elect the electors they prefer in Texas. So even if the VRA were to protect whites as well as racial minority groups (itself perhaps a thorny question), the VRA claim would be an uphill climb in blue states like California. Why does this matter? Because if red states have to abandon WTA and blue states do not, then embrace of the Texas plaintiffs’ claims would help the Democratic party in a huge way – and the chances the Electoral College winner diverges from the national popular vote winner goes up too. The latter would be an ironic result given the more global attack on the Electoral College that the Texas plaintiffs embrace. Courts are unlikely to be oblivious to these facts when they consider the plaintiffs’ legal claims. As the Court noted in Anderson v. Celebrezze, presidential elections are somewhat unique among electoral contests in America in that the rules that apply in one state affect other states as well:

[I]n the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation. Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States.

Finally, note that if a state decided not to hold “elections” for presidential electors, but simply allowed the people of the state to give “input,” the state could conceivably completely avoid any challenge to WTA. The Court in Bush v. Gore (in a part of the ruling that did not seem to generate much controversy) observed: “The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”

So imagine a state said: “The elected state legislature will pick the state’s slate of electors, taking into account the wishes of the people of the state as expressed at a statewide poll to be conducted in November alongside the congressional elections. And generally the legislature will select a group of electors who are all pledged to support the same presidential candidate.” If a state were to do this, even if it almost always deferred to the wishes of the people expressed in early November and picked the slate of electors pledged to the most popular presidential candidate in the state, the constitutional and statutory claims against WTA discussed here would be even less likely to succeed.

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I close on a personal note. I can’t write my column this week without thinking a great deal about Julie Hilden, an editor and columnist emeritus who was responsible seventeen years ago for bringing me (as well as other Verdict writers) into this website and indeed into this business of online legal commentary. Julie passed away last week (at much too young an age), and wherever she is I hope she knows how much I – and my fellow columnists – appreciated the kind and accomplished person she was, and how much we admired, respected and enjoyed her talents and her sprit.

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