This post was originally published on Medium by the group Equal Citizens.
In 2000, Republican lawyers, desperately seeking a way to stop the recount in Florida, crafted a brilliant equal protection argument against the method by which the Florida courts were recounting votes. Before that election, no sane student of the Constitution would have thought that there was such a claim. When the claim was actually made, every sane lawyer (on Gore’s side at least) thought it was a sure loser. But by a vote of 7 to 2, the Supreme Court recognized the claim, and held that the Equal Protection Clause regulated how Florida could recount its votes. That conclusion led five justices to conclude the recount couldn’t continue. George Bush became president.
I’ve been struck in this election cycle by just how timid Democrats have been about thinking in the same way. I’m not (yet) saying they necessarily should. But it is striking to see how committed they are to allowing this train wreck to occur. And more surprisingly, how little careful attention has been given (at the top at least) to just how vulnerable — given Bush v. Gore — the current (system for counting votes in the) Electoral College is.
Most people, even Dems, can’t seem to allow themselves to even think about a constitutional challenge to the Electoral College — because they’re convinced our current Electoral College system is embedded in the Constitution. So when someone says, “What about one person, one vote?” they respond, “It’s the Constitution that creates this inequality — just as with the Senate — and the court is not going to overrule the Constitution.”
Yet that response misses a critical point.
Yes, the Constitution creates an inequality because of the way it allocates Electoral College votes. A state like Wyoming, for example, gets three electoral votes with a population of less than 600,000, while California gets 55 electoral votes with a population of more than 37 million. Thus, while California has a population that is 66 times Wyoming, but only gets 18 times the electoral college votes.
But the real inequality of the Electoral College is created by the “winner-take-all” (WTA) rule for allocating electoral votes. WTA says that the person who wins the popular votes gets all the Electoral College votes for that state. Every state (except Maine and Nebraska) allocates its electors based on WTA. But that system for allocating electoral votes is not mandated by the Constitution. It is created by the states. And so that raises what should be an obvious and much more fiercely contested question: Why isn’t WTA being challenged by the Democrats in this election?
The strongest argument about why it isn’t is an argument of reliance (some people gussy this up to a point about “the rule of law,” but that’s just confused rhetoric): The election was waged assuming WTA; It’s not fair now, the argument goes, to change the rule for how electors will be counted.
No doubt, it is unfair to the campaigns of Hillary Clinton and Donald Trump. They spent money in reliance on the existing system. But that’s not the only “unfairness” at stake here: What about the unfairness being felt by the millions of voters whose votes were effectively diluted, or essentially disenfranchised? Why doesn’t their harm also weigh in the balance?
It’s perfectly clear that the attorney general of New York or California could walk into the Supreme Court tomorrow and ask the court to hear the case. Delaware tried to do this exactly 50 years ago, but the court ducked the question. But based on that complaint, were I a citizen of California, I’d ask my current AG (and future senator) why hasn’t California done the same thing? And were I a citizen of New York, I’d ask my AG the same. Why are these big states standing by quietly as their voters are essentially silenced by the unconstitutional inequality?
Meanwhile, as I’ve tried to get people to consider the question, I can almost feel the dynamic of their resistance. “This is beneath us,” they seem to sneer. “It’s the sort of thing only ‘they’ do.” To which the only fair response is: “Right, but that’s what they do, and because they did it in Bush v. Gore, that case gives Democrats the hook they need to do it now.” And when people say “There would be a revolution if the court decided this election,” why isn’t the response, “Why wasn’t there a revolution when the court effectively mandated the loser of the popular vote (Bush) had to be president?”
There is so much at stake here. So how can we go so quietly here?
So what would the argument be?
I’ve been sketching the argument privately as I’ve worked through the material. This article by Christopher Duquette and David Schultz raised the question years ago, and Chris has recently updated the stats on the piece. He and I have agreed to do a longer paper about the equal protection argument after this election is over, because I’ve become convinced that this is a serious and probably correct argument that needs to be pressed in the courts.
But yesterday, I received the fullest statement of the argument so far, by a lawyer from Atlanta, Jerry L. Sims. With his permission, and in the spirit of open-source legal practice, I’m posting the argument here. If you’re convinced it’s plausible — and no doubt, its 1,000 times more plausible than anything the Republican lawyers invented in 2000 — can you spread the word? Top-down thinking on this isn’t happening. It will only go somewhere if we fuel it bottom-up.
It is a rare thing for a lawyer to permit basically the first draft of an argument to be seen in public. This is a pretty good first draft, but I’m grateful nonetheless that Jerry would permit me to post this, so we can get the argument going. Comment and criticize away — but if you’re a Republican who’s going to get all outraged at the idea of appealing to the Supreme Court to intervene in an election, check your hypocrisy filter first. To remix a bit: What’s good for the elephant is good for the donkey. In this case, at least, the intervention would be to uphold a popular result. (And anyway, look to the bright side: How much fun will it be to watch us libs loving Bush v. Gore?)
What follows is the argument from Sims’ email, with some links added, and formatted for readability.
From Jerry Sims:
I believe that a reasonable argument can be made that the allocation of state presidential electors on a winner-take-all basis is an unconstitutional denial of the equal protection of the law and the principle of one man, one vote. The argument may be summarized as follows:
1. Article 2, Section 1 of the Constitution mandates the selection of the president by the Electoral College with each state having the same number of electors as it has senators and representatives. This creates an inherent bias in favor of small states by giving every state two additional electors without regard to population. (For the sake of simplicity, I will refer to this hereinafter as the small-state bias or the bonus electors.) But the small-state bias is fairly minor and it WAS NOT the cause of Donald Trump’s apparent victory in the Electoral College in this year’s presidential election. Trump won because of the winner-take-all method of allocating electors used by 49 of the 51 jurisdictions participating in the Electoral College.
2. Trump won 306 electoral votes while Clinton won 232. In doing so, Trump won the popular vote in 31 states while Clinton won in 19 states and the District of Columbia. Each candidate took all of the electors in each state won, except Trump took one elector in Maine. Without the two bonus electors in each state there would be a total of 436 electors and Trump would have won 306 electors minus (2 x 31) — 306 – 62 = 244 — and Clinton would have won 232 electors minus (2 x 20) — 232 – 40 = 192. Clinton lost the election because of the winner-take-all method of allocating electors. Trump’s lead in electors would only have dropped from 74 to 52 if each of the states did not have the two bonus electors. As a percentage of all electors, Trumps lead would have only dropped from 13.8 percent to 11.92 percent.
3. In this election Trump won the vote in states providing 306 electors with approximately 40,000,000 votes or approximately 30 percent of the total national vote of approximately 134,000,000. In fact he could have won those states with several million fewer votes than the 40,000,000 votes he received. From the standpoint of practical reality, although Trump received approximately 62,500,000 votes in total, he did not need to receive a single additional vote to win the election. None of the votes in the states won by Clinton played any role in the outcome of the election. I may be going too far into the weeds here, but to illustrate how extreme a result the winner-take-all allocation of electors could lead to, it would be possible to win the presidency by winning the vote in 37 of the 40 states with the smallest population, including DC (losing any three of the jurisdictions with only three electoral votes). These “small states” would have approximately 45 percent of the total US population in aggregate. Assuming that there are only two candidates, that voters in each of the 50 states vote in the same approximate percentages and that the electors from each of these small states are allocated on a winner-take-all basis, then the theoretical minimum vote to assure victory would be 50 percent plus 1 of the votes cast in each of these small states, or 22.6 percent of the national vote total. That vote would assure victory without a single vote from any of the other states being required to win. To be clear, this mathematical illustration provides an important backdrop to my constitutional argument, but does not provide the basis of the argument.
4. The constitution does not mandate the method the states use to select electors. That matter is left to the discretion of the states. Originally the state legislators selected the electors. But during the 19th century all of the states moved to statewide elections. Currently all of the states select electors by statewide elections and all but two of the states, Nebraska and Maine, select electors on a winner-take-all basis. Nebraska and Maine allocate electors by congressional district with two electors elected on a statewide winner-take-all basis.
5. Since the electoral system was adopted vast changes have occurred in state populations, so that as of 2010 our least populous state, Wyoming had a population 563,626, and three presidential electors, and our most populous state, California had a population of 37,253,956 and 55 presidential electors. In other words, California had a population more than 66 times greater than Wyoming while having only 18 times as many presidential electors. As of 2010 our most populous nine states in aggregate have a larger population than the other 40 states and the District of Columbia combined. The large concentration of population in a handful of states combined with the winner-take-all method of selecting electors has skewed the original constitutional design so that the likelihood that a candidate who loses the popular vote will win the Electoral College has become greater than ever before.
6. A candidate who lost the popular vote has been elected president five times in US history. It occurred three times in the 19th century, when the elections were thrown into the House of Representatives because the electoral votes were spread between multiple candidates with no candidate getting a majority. As we all know it has also occurred twice in the last 16 years. The 2000 election was the first time in US history that the candidate losing the popular vote won a majority of the Electoral College outright. Now that has happened again in 2016. The major contributing factors to this outcome are the winner-take-all system of allocating electors coupled with the growing concentration of the US population in a handful of states. These factors create a substantial risk that a candidate that loses the popular vote would win the Electoral College outright even if the small state advantage did not exist. This election is a clear example of that risk. To be clear, Trump did not win the Electoral College because of a constitutional design, he won because of the winner-take-all system of allocating electors and that critical legal factor is strictly a function of state law.
7. In Williams v. Rhodes, 393 US 23, 89 S. Ct. 5, 21 L.Ed.2d 24 (1968), the Supreme Court made the critical point regarding presidential election law, that although the election of the president by the Electoral College is established by Article II of the Constitution, presidential electors may be selected by the states in any manner they choose, but when the states opt to select electors by an election, the election conducted by the states must be conducted in a manner consistent with other provisions of the Constitution:
‘The state also contends that it has absolute power to put any burdens it pleases on the selection of electors because of the first section of the second article of the Constitution, providing that ‘Each state shall appoint, in such Manner as the Legislature thereof may direct, a number of electors’ to choose a president and vice president. 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. … 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 15th and 19th 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. And the 24th Amendment clearly and literally bars any state from imposing a poll tax on the right to vote ‘for electors for president or vice president.’ 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 14th amendment’s command that ‘No State shall … deny to any person … the equal protection of the laws.’ Id. pp, 28–29.
8. In Bush v. Gore, 531 US 98, 121 S. Ct. 525, 148 L.Ed.2d 388 (2000), the Supreme Court further explained as follows:
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. … When the state legislature vests the right to vote for president in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The state, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (“[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated”) (quoting S. Rep. №395, 43d Cong., 1st Sess.).
The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 US 663, 665 (1966) (“[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”). It must be remembered that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 US 533, 555 (1964). Id, pp. 104–105. (Emphasis supplied)
9. In Reynolds v. Sims, 377 US 533, 84 S. Ct. 1362, 12 L.Ed.2d 506 (1964), the Supreme Court made the following salient observation:
Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is bedrock of our political system. It could hardly be gainsaid that a constitutional claim had been asserted by an allegation that certain otherwise qualified voters had been entirely prohibited from voting for members of their state legislature. And, if a state should provide that the votes of citizens in one part of the state should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the state, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted. Id., p. 561.
Logically, in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people of a state could elect a majority of that state’s legislators. To conclude differently, and to sanction minority control of state legislative bodies, would appear to deny majority rights in a way that far surpasses any possible denial of minority rights that might otherwise be thought to result. Id., p. 565.
10. Although Reynolds was decided in connection with legislative elections, the point the court made in Reynolds is clearly true in connection with the selection of presidential electors. Paraphrasing Reynolds v. Sims, in the converse, to apply to presidential electors, the applicability of Reynolds becomes clear.
Presidential electors represent people, not trees or acres. Electors are elected by voters, not farms or cities or economic interests. …Logically, in a society ostensibly grounded on representative government, it would seem reasonable that a minority of the people of a state could elect a minority of that state’s electors. To conclude differently, and to sanction winner-take-all control of the states’ electors would appear to deny minority voting rights in a way that far surpasses any possible denial of majority rights that might otherwise be thought to result.
11. In summary, a winner-take-all system of allocating electors by the states denies the minority of voters within each state any representation whatsoever within the Electoral College and ultimately in the case of the 2000 and 2016 elections, denies the plurality of voters nationwide their choice for president under circumstances in which the constitutionally established small state advantage made part of the Electoral College would not. This is neither a reasonable nor a rational result in a representative democracy. This result was dictated by the winner-take-all method of allocating electors used by the states. It is this state law method of allocating electors that is an unconstitutional violation of the Equal Protection Clause of the 14th Amendment and its bedrock principle of one man one vote.
12. The winner-take-all allocation of multiple electors (ranging from three electors in our smallest states to 55 in our largest) denies any voice whatsoever to each states minority voters, no matter how substantial their vote may be. The distortion of presidential election results by the winner-take-all apportionment of a state’s electors is an unconstitutional denial of the equal protection of the law. If the selection of electors is viewed by a state as a statewide election and 51 percent of the voters in that ctate vote for Candidate A and 49 percent for Candidate B and all 29 electors from that state are electors for Candidate A, then the voice of all of the voters for Candidate B will be ignored. On the other hand, if that state’s electors are allocated proportionately between candidate A and Candidate B, every significant group of voters in the state is represented by electors in the selection of the president. The winner-take-all allocation of a state’s electors results in an electoral delegation that is not representative of the state’s voters and denies any voice whatsoever to minority voters within that state.
13. In Georgia, for example, we have 16 electors and approximately 44 percent of all voters cast ballots for Clinton. Yet the Clinton voters receive no representation within the state’s electors. They are left with no voice whatsoever in the election of the president by the Electoral College, their votes are for all practical purposes thrown away. If Georgia were electing a single candidate then a winner-take-all result would be proper, but in an election of 16 electors, the Clinton votes are not being given equal dignity with the Trump votes. Of course the state could argue that there is a single slate of electors is up for election. But therein lies the rub;’ the state is not free to disregard the one-man-one-vote rule by arbitrarily framing the election of 16 electors as though it is an election of a single office holder. That argument would be a pretext designed to deny any voice to the voters for the candidate not winning the plurality of the vote within the state, even though in reality multiple representatives are being selected to vote in a second election for a single candidate. This system leaves minority voters in Georgia with no voice whatsoever in the final real election. Thus, if the election is viewed by the state as a statewide election, then electors should be allocated proportionately, in order to give every vote equal dignity and weight, thereby electing a delegation of electors that actually represents all of the voters within the state. Under this methodology every vote counts. Proportional allocation of electors respects the one man one vote principle while preserving the small state bias. It merely eliminates the likelihood of a president being elected who did not win the popular vote and did not win because of the small state bias embedded in the Constitution.
14. On the other hand, if the selection of electors is viewed by a state as part of a nationwide election, then no matter what percentage of the voters in that state vote for a candidate a winner-take-all approach makes sense when the “winner” is based on the winner of the national popular vote, because this selection of electors is representative of the plurality of voters nationwide in the ultimate single candidate election. Thus in a very different way, under that methodology, every vote counts toward the ultimate result of the election and reflects the will of the people, thereby honoring the one-man-one-vote rule.
15. I think it is important that the argument be made that either proportional selection of electors be allowed on the state level or winner-take-all selection of electors be allowed based on the national vote. The winner-take-all method on the national vote level could serve as a backstop to use in the event a political party moves to gerrymandered district voting for electors. That methodology would also provide some insurance against the increased risk of elections being thrown into the House of Representatives due to some electors being allocated to third-party candidates. This is a greater risk of having elections thrown into the house of Representatives using proportional selection of electors even if a minimum cutoff of 10 percent of the vote if required for a candidate to be eligible for allocation of electors. Finally both options would encourage voters to turn out because under both methods all votes are counted and are equally important. Under current methodology democratic votes in heavily red states play no role in the outcome of the election and the same is true of Republican votes in heavily blue states.
16. There are arguments that can be made against proportional allocation or the unconstitutionality of a winner-take-all allocation to the winner of the national popular vote and I am aware of several of them, but probably not all. There are also several end arounds — the most obvious being drawing (or shall I say gerrymandering) districts from which each elector is selected by popular vote. Another would be to have electors appointed by the legislature. Anyway, if I am missing something please let me know.
17. I have attached an excel spreadsheet [now a Google sheet] showing what would have happened in the current election if electors were appointed proportionately by each state disregarding candidates with de minimis votes of under 5 percent. The columns are labeled at the top of the spread sheet. The far left side uses voting figures (percentages) as of the end of week of the election; the voting figures to the right are based on voting totals as of Nov. 17.
18. Several people have commented that cutting off candidates from an allocation of electors who receive less than 5 percent of the vote within a state is inconsistent with a proportional allocation of electors and the principle of one man one vote, because some votes would not be counted that might proportionately qualify to be awarded electors. Others have observed correctly that without the 5 percent cutoff used in my calculation of who would have won the 2016 presidential election if electors had been allocated proportionately, third-party candidates would have been allocated several electors and no candidate would have received a majority of electors. This illustrates another point made in a comment — without a cutoff the likelihood that an election would be thrown into the House of Representatives is greatly increased by a proportional allocation of electors.
I have little doubt that the winner-take-all method was intended, in part, to minimize the probability that no candidate would win a majority of the electoral vote. But unlike a proportional allocation of electors, the winner take all method could theoretically lead to grossly aberrant results. The method denies representation at the Electoral College to significant blocs of voters within every state. The concept of a proportional allocation of electors with a de minimis cutoff is designed to minimize the risk of an election being thrown into the House of Representatives while giving significant voting blocs a proportional voice in the election. Using a cutoff set at a de minimis percentage of the total vote within a state might accomplish this goal without denying major voting blocs representation in the Electoral College.
If equal protection of the law is taken to a level as granular as individual ballots and hanging chads, as in Bush v. Gore, then a de minimis cutoff might be viewed as constitutionally impermissible. If failing to award electors to a candidate with only 4 or 5 percent of the vote would be constitutionally suspect then clearly the winner take all method would be unconstitutional. On the other hand, awarding electors to candidates receiving a de minimis percentage of a state’s votes would be an exercise in constitutional “purity” that accomplishes nothing other than systemic dysfunction (i.e., throwing the election into the House of Representatives). Although this may seem to pose a practical dilemma, consider these questions:
Would the equal protection principle of one man, one vote be best served by the winner-take-all system which cuts off all candidates from an allocation of electors who receive fewer votes than the “winner” of the state’s plurality of votes?
Would that principle be best served by cutting off all candidates from a proportional allocation of electors who receive fewer votes than the two candidates with the highest vote totals within the state?
Would that principle be best served by cutting off all candidates from a proportional allocation of electors who receive less than a specified de minimis percentage of the total vote cast for presidential candidates in the state (say 5 percent, 10 percent or 15 percent)?
Would the principle be best served by allocating electors proportionately to all candidates whose share of the vote would round to a whole number of electors, thereby posing a substantial risk of throwing the election to the House of Representatives?
It would seem that the most reasonable practical answer would be a proportional allocation of electors with a cutoff at a de minimis percentage of the total vote. The percentage should represent a reasonable balancing of the right of every voter to participate in the election in a meaningful way and the risk of taking the election entirely away from the voters by sending it to the House of Representatives. A reasonable cutoff would probably be in the range of 10 to 15 percent of the total vote; but any cutoff percentage should be based on a detailed probability analysis which, for obvious reasons, has yet to be conducted.