Will Suing Governors Change the Electoral College?

The longest chapter in Fault Lines in the Constitution is Chapter 12: The College with No Courses or Credits/The Electoral College. We explain a number of problems with the Electoral College, especially the outsize influence that small states and battleground states have on the outcome of presidential elections. Still, just because this is the longest chapter doesn’t necessarily mean that the Electoral College is the faultiest line we discuss. But, there has been a rise this century in the frequency with which presidents get sworn into office even if they have not received the most popular votes. Concerns that this problem could arise again in November 2020 have led to not only increased chatter about what to do but even legal action. Here’s what’s happening.

In February 2018, lawsuits were filed against the governors of four states—California, Massachusetts, South Carolina, and Texas. Remarkably, one of the plaintiffs (plaintiffs are the people doing the suing) is a past governor of Massachusetts, William Weld, who sued the current governor of Massachusetts, Charlie Baker. Along with the League of United Latin American Citizens (LULAC), a plaintiff in Texas is Sandy Levinson, who is a coauthor of Fault Lines in the Constitution. Their basic argument goes like this.

In all but two states—Maine and Nebraska—the candidate who wins the most popular votes gets all of that state’s Electoral College votes. The winner doesn’t need to get a majority of that state’s votes, just more than every other candidate. This system, called winner-take-all, means that the votes people cast for the losing candidates get left behind at the state level and literally don’t count at the Electoral College level. Winner-take-all, the plaintiffs say, is unconstitutional because it undermines the Fourteenth Amendment.

This amendment, which was added to the Constitution after the Civil War in 1868, states that every person in America has the right to “equal protection of the laws.” In 1964 in a case called Reynolds v. Sims, the Supreme Court used this clause to rule that every representative in a state legislature must represent approximately the same number of people. Before this decision was reached, some state legislative districts held hundreds, even a thousand, times as many people as others! Voters in large districts complained that their votes didn’t count as much as those of people who lived in smaller districts. The Supreme Court agreed, saying that each state must provide “fair and effective” representation to all of its citizens.

The lawsuits over the Electoral College are making a similar case: it is not a “fair and effective” election if votes given to a losing candidate in a state are completely ignored.

So far, three suits have been decided at the state level—California, Massachusetts, and Texas—and all have lost. The plaintiffs have appealed the decision to the next level of the court system. Three judges at the First Circuit Court of Appeals in Boston heard the case on September 10, 2019. Responding to the view that the Electoral College is unfair, Amy Spector, the lawyer for the Commonwealth of Massachusetts, argued that we have tolerated winner-take-all for decades—even centuries. She added that courts are not the right place to change the Electoral College. If change is needed, it should come through legislation or a constitutional amendment. As we point out in Fault Lines, over six hundred constitutional amendments have been introduced to change the electoral college; however, none has been proposed to the states, let alone ratified.

Several important questions come up.

• What do you think of the Electoral College?
• If you believe it should be retained, instead of being replaced by a national popular vote, for example, should states be able to give all of their votes to the person who comes in first, rather than dividing them up among the candidates depending on the percentage of the votes they received?
• If changes are made to the Electoral College, should courts impose them on states that want to stick with the long-established practice of winner-take-all?

One last question: Will any of these cases be appealed to the US Supreme Court? The answer is probably “yes” if a state court loses the case. Otherwise, no one knows yet if the Supreme Court will decide to hear the case. To keep updated, look at Equal Votes: One Person = One Vote.