Breaking: Legal Team Led by David Boies and LULAC Files Lawsuits Challenging Winner-Take-All Approa
Source: Election Law Blog
A coalition of law firms led by David Boies of Boies Schiller Flexner LLP, and The League of United Latin American Citizens (LULAC) today announced the filing of four landmark lawsuits challenging the winner-take-all method states use to allocate their Electoral College votes. By magnifying the impact of some votes and disregarding others, the winner-take-all system is not only undemocratic, but it also violates the Constitutional rights of free association, political expression, and equal protection under the law. These suits aim to restore those rights nationwide.
The non-partisan effort will draw on the resources of several law firms in advancing legal challenges in two states that are solidly blue, Massachusetts and California, and two others that are solidly red, South Carolina and Texas. All four suits are designed to uphold the Constitutions guarantee that every votewhether for a Republican, a Democrat, or third-party candidatewill be treated equally.
Read more: http://electionlawblog.org/?p=97652
Fullduplexxx
(7,818 posts)TheBlackAdder
(28,072 posts)jalan48
(13,797 posts)Demit
(11,238 posts)The NPVIC is a proposed end-around to amending the Constitution to abolish the Electoral College. It's an agreement among a group of states and DC to award all their electoral votes to whichever presidential candidate wins the overall popular vote. It's been adopted by 10 states and DC (representing a total 165 EC votes).
It needs 105 EC votes more to reach the magic EC number 270. As of now, legislation is pending in 12 other states (representing a total 166 EC votes).
jalan48
(13,797 posts)unblock
(51,974 posts)article 1 section 2:
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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
there is zero basis for any constitutional argument for equal treatment within the state because everyone within the state gets equal say. not only is there no reason to assume the framers wanted proportional allocation of electors, article 1 section 2 explicitly gives states the leeway not to.
moreover, there is no good basis for the argument for equal treatment across state lines because the *entire purpose* of the electoral college system, by design, was to be *unequal* across state lines.
not a lawyer, but imho, this is a waste of times, at least legally.
politically, it may serve a purpose, perhaps, but constitutionally, this is going nowhere.
Va Lefty
(6,252 posts)Phoenix61
(16,951 posts)LeftInTX
(24,548 posts)gopiscrap
(23,674 posts)winner gets the first two and then each other electoral vote is awarded to the top vote getter in each Congressional District this is not a good idea for us as most Democratic votes are amassed in fairly tight urban areas
bigbrother05
(5,995 posts)If there was a method to split the Senate votes, i.e. +60% to get both, it might balance out. Would like to see how elections since Carter would go with this scheme.
unblock
(51,974 posts)states are free to do this if they choose. but the constitution doesn't force them to do so.
perhaps the point of this case is not to win, but simply to publicize the problems of the winner-take-all approach and to convince the country, state by state, to voluntarily switch.
but that really messes things up if, say, the blue states switch but the red states don't....
LeftInTX
(24,548 posts)of the current system for all 50 states.
As you stated above...article 1 section 2:
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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The plaintiffs are arguing that article 1 section 2 violates the 14th Amendment and they want a mandate that require all states to allocate electoral votes proportionality.
I don't think it will get very far, but it may start a discussion.
tinrobot
(10,848 posts)moreover, there is no good basis for the argument for equal treatment across state lines because the *entire purpose* of the electoral college system, by design, was to be *unequal* across state lines.
But Republican voters in blue states and Democratic voters in red states typically get zero electors, even when they get 48-49% of the vote. How is that equal? Equality must also happen within a state.
I think there is merit to this case. It may not be explicitly spelled out in the Constitution, but equality has become law through voting rights legislation and past Supreme Court decisions.
unblock
(51,974 posts)every eligible voter within a state has equal say in who wins the entire slate.
every other statewide election is winner-take-all. there's no proportional sharing of the governorship or senate seats.
note, also, that the state can even choose not to have an election of presidential electors entirely (though, granted, *if* they decide to have an election they have to abide by certain rules). but they could choose to appoint a slate for entirely one candidate in complete disregard for the will of the people in the state. that would also be perfectly constitutional. another argument for just amending the constitution to permit direct popular election of the president across the country.
if it got the the supreme court, no doubt some justice would ask, if the founders had wanted proportional allocation of electors within the state, they could have and would have specified that. but they didn't. the states wanted that control, and they did not want to be required to let the people decide.
muriel_volestrangler
(101,150 posts)Federal House seats are, however, districted so that each represents the same number of people. And there are signs that courts are getting fed up with gerrymandered districts that distort party representation compared to the votes each gets. An argument that Representatives should reflect the proportion of votes in a state might be extended to 'electoral college members should reflect the proportion of votes'.
unblock
(51,974 posts)and i'll be quite happy to see districts drawn in a way that doesn't give partisan advantage or that discriminates.
however, i don't think most of the arguments translate to requiring proportional allocation of electors. gerrymandered districts were drawn specifically to reduce the influence of the other party; or, in some cases, black people specifically.
winner-take-all has been with us since the first presidential election. it's rather difficult to say that the point of it is to reduce the influence of any particular group.
Fred Sanders
(23,946 posts)New rules for new times.
We update computers to address new threats and incorporate better thinking, why not constitutions?
unblock
(51,974 posts)that can certainly be done. but if we're amending the constitution, why not just go straight to popular vote across the entire country. i would certainly support that.
this case is trying to advance an argument that winner-take-all is unconstitutional based on the existing constitution. i think there is no real basis for that argument.
and no, it's not the originalist argument. there is no real way to read the constitution and come to the conclusion that winner-take-all is unconstitutional.
genxlib
(5,506 posts)But it should be every state.
I actually think it will be the closest we will ever come to making the electoral college work. If distributed by a ratio matching the vote totals within a state, it would much more closely align with the popular vote and make upside down victories nearly impossible.
I still think the popular vote would be better but it is an uphill battle for a constitutional change that will never happen.
This is not as good but far more likely
unblock
(51,974 posts)we would lose a lot of californian and new york electoral votes, for example.
republicans would lose a lot of texas votes, but we're getting close to flipping texas anyway, and in fact this would reduce that prize.
much depends on if electoral votes were allocated proportionally, or if they were done by congressional district plus two at large (the way maine and nebraska already allocate theirs). if it's by congressional district, then gerrymandering messes with everything.
either way, small states still have disproportionate influence.
one plus would be that it would shift campaigning away from being so heavily concentrated in a small number of "battleground states".
LeftInTX
(24,548 posts)unblock
(51,974 posts)i'm thinking we have a decent shot in 2024.
Pope George Ringo II
(1,896 posts)But in substance I agree with you.
genxlib
(5,506 posts)It would be bad to break up California and New York. But it would be offset by breaking up all the others as well. That's why it has to be all of them.
I agree it should be directly proportional to popular vote and not based on the congressional districts.
I once did a spreadsheet analysis and doing it proportional to the popular vote resulted in Gore and Clinton wins.
It's not perfect but I would take a system like that over what we have.
Squinch
(50,773 posts)unblock
(51,974 posts)i fear this may be a case of "the system we have sucks, let's see if we can make it worse."
the problem is not so much the winner-take-all strategy as the way the electoral college itself is set up.
popular vote across the nation would be better.
brooklynite
(93,847 posts)The US Constitution simply says that States will determine the allocation of the Electoral Votes. It says NOTHING about the rights of citizens to vote for President, nor that those votes be treated proportionally.
shanny
(6,709 posts)but SCOTUS decided several cases in the early 60s based on the Equal Protection clause in the 14th Amendment and established the standard of "one man one vote".
So, yeah, they do have a prayer.
lagomorph777
(30,613 posts)If ever there was a case for impeaching Justices, that was one.
shanny
(6,709 posts)We need no further "tell" than that that decision was supposed to stand alone, and set no precedent. In short it was made-up bullshit for the sole purpose of installing the preznit they wanted.
lagomorph777
(30,613 posts)How did they get away with that???
shanny
(6,709 posts)They asserted it in the decision and they got away with it because there is no higher review.
Fun fact, Justices are exempt from the ethical rules that apply to lower court judges. Just another set of rules / standards--like the ones the trumpettes are ignoring--that will need to be codified into law ASAP.
lagomorph777
(30,613 posts)You are correct; we need to fix that pronto.
Yupster
(14,308 posts)They can rule that the 15th Amendment giving A-A males the right to vote means everyone has to wear red socks to work each Tuesday.
It doesn't have to make any sense. They can interpret whatever they want.
The only remedy is impeachment.
Yupster
(14,308 posts)The state legislature could decide to just name electors on its own. For a long time that's how some states did it.
South Carolina didn't have its first vote for president until 1868. It was likely not an honest vote as Ulysses Grant won the state.
spicysista
(1,663 posts)I don't feel that this is going anywhere. However, we need to be more like the "pro-life" crowd. They never give up! They just keep chipping away at our rights....no matter the number of setbacks. We should be more determined in fighting for our causes as well. Maybe, this will give life to the conversation that started after Bush vs Gore. There's nothing to be gained by giving up!
Mme. Defarge
(7,981 posts)states should be able to sue other states that are unable or unwilling to demonstrate and assure the integrity of their voting systems, thereby disenfranchising voters in states that can.
flyingfysh
(1,990 posts)If this is adopted by the blue states, but not by the red states, then Republicans will have a solid lock on the White House forever. Do we really want that?
Doremus
(7,261 posts)An intelligent and compassionate man. I hope he's successful.
getagrip_already
(14,239 posts)And those definitely don't favor the dems. gerrymandering would have an outsized impact. You would still be awarding winner takes all, but at the district level.
Unless they are arguing the popular vote should allocate the seats. It's hard to tell from the brief write up.
tomp
(9,512 posts)...better hope Boies does better than he did in Bush v Gore.
MurrayDelph
(5,279 posts)is to see a double-proportional method of assigning Electoral College votes.
Pulling numbers out of my butt for example purposes:
Let's say we allocate 10,000 Electoral College Votes nation-wide.
If a state (let's say California) has 15% of the national registered voters, they would get 15% of the national total of electorates, or 1,500 Electoral College votes.
If this example-California voted for the Democratic candidate with 66% of their voters, the Democratic candidate would receive 66% of that state's electorates, or 990 Electoral College votes, with the remaining being distributed proportionally among the other candidates.
The purpose of the double-proportion rather than straight national totals is to insure that no state (let's say, Florida, or Ohio, or Kentucky) cannot provide more votes than there are voters. They can affect their state, but no one else's.
summer_in_TX
(2,680 posts)I have to agree with LeftinTexas. No matter how much energy there is right now on the blue side here, I'm pessimistic. For one thing, the level of donating to Democratic candidates here has been one-tenth of that of Republicans, up until now, according to reporting I heard this week on The Texas Standard.
Because we've been out of power so long and haven't won a statewide race in about two decades, even with the undeniable energy and more candidates than we've had in years, too many Dems are planning to rely on crossing over to vote in the Republican primary I fear. Early voting started yesterday, and I saw a post on Twitter from someone who did that.
When Dems cross over, the numbers of potential Dem voters look smaller than they really are, and when the next opportunity occurs to recruit candidates they're discouraged. It's a vicious cycle.
My plea would be that we all vote in our primary, no matter how outnumbered we are and how few choices we have in our own primary, wherever we live in Texas. And maybe, just maybe, despite being badly outspent, we will win several of these races.
I'm praying the Supreme Court ruling on gerrymandering will be one that will help us save this democracy.
Gothmog
(143,999 posts)Hermit-The-Prog
(33,032 posts)Maybe he's on the up-and-up; maybe not. He has a checkered history.
Represented SCO in their idiot lawsuits against IBM, Autozone, Daimler-Chrysler, and everybody.
Represented Oracle against Google, trying to copyright APIs.
Benchslapped by Judge Alsup:
http://www.groklaw.net/articlebasic.php?story=20121127123047829
Threatened journalists over stories based on Sony's leaked emails.
https://www.hollywoodreporter.com/news/sony-attorney-david-boies-threatens-757537
"Theranos sent David Boies and a team of lawyers to The Wall Street Journal to try to stop its bombshell story"
http://www.businessinsider.com/theranos-lawyers-vanity-fair-2016-5
Harvey Weinsteins Army of Spies
The film executive hired private investigators, including ex-Mossad agents, to track actresses and journalists.
https://www.newyorker.com/news/news-desk/harvey-weinsteins-army-of-spies
In some cases, the investigative effort was run through Weinsteins lawyers, including David Boies, a celebrated attorney who represented Al Gore in the 2000 Presidential-election dispute and argued for marriage equality before the U.S. Supreme Court. Boies personally signed the contract directing Black Cube to attempt to uncover information that would stop the publication of a Times story about Weinsteins abuses, while his firm was also representing the Times, including in a libel case.
"Report Details Weinsteins Covert Attempt to Halt Publication of Accusations"
https://www.nytimes.com/2017/11/07/us/harvey-weinstein-new-yorker.html
NYT fired him after the above.
Gothmog
(143,999 posts)Texas: In lawsuit, activists say Texas winner-take-all approach to the Electoral College is discriminatory https://thevotingnews.com/winner-take-all-electoral-practice-faces-voter-rights-challenge-bloomberg/
Similar Electoral College lawsuits were also filed Wednesday in Republican-dominated South Carolina and Democratic-leaning Massachusetts and California. The South Carolina suit also alleges a Voting Rights Act violation.
At the suits core is the doctrine of one person, one vote, rooted in the 14th Amendment. The plaintiffs argue that the winner-take-all system is unconstitutional because Texans who favor losing candidates effectively had their votes cancelled, while voters who favor winning candidates see their influence unconstitutionally [magnified]. The suit also alleges that winner-take-all violates the First Amendment.