Photographer: Patrick T. Fallon/Bloomberg

Winner-Take-All Electoral Practice Faces Voter-Rights Challenge

  • LULAC, Boies file lawsuits in 2 red states, 2 blue states
  • Civil rights groups claim current method violates Constitution

Civil rights activists are challenging the legality of four states’ winner-take-all method of allocating U.S. presidential electoral college votes, claiming the practice magnifies some votes at the expense of others and violates voters’ constitutional rights.

The lawsuits were filed Wednesday in Texas and South Carolina, two states seen as “solidly red,” or Republican, and Massachusetts and California, two states seen as “solidly blue,” or Democratic, according to a statement from the activists’ lawyers. Veteran U.S. Supreme Court litigator David Boies, of Boies Schiller Flexner LLP, and the League of United Latin American Citizens, or LULAC, are spearheading the “non-partisan” challenges.

“Under the winner-take-all system, U.S. citizens have been denied their constitutional right to an equal vote in presidential elections,” Boies said in an emailed statement. “This is a clear violation of the principle of one person, one vote.”

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The lawsuits don’t challenge the electoral college system established by the Constitution, according to the statement. Instead, they question the way most states allocate all their presidential electors to the candidate who polls the most popular votes in that state. The four states account for 113 out of the nations’s 538 electoral college votes.

‘Simple Ideal’

“The promise of democracy is that all votes count equally,” Lawrence Lessig, a Harvard law professor, said about the suits. “Winner-take-all denies Americans that simple ideal. If you’re a Republican in California, or a Democrat in Texas, your vote for president gets counted only to be thrown away.”

The idea for the challenges originated in a crowdfunding campaign organized by Lessig through the website EqualVotes.US.

The two suits filed in Texas and South Carolina also claim the allocation system violates the Voting Rights Act by disenfranchising minority voters. Minority voters have historically supported Democratic candidates in those states, which since the 1970s have awarded all their electoral college votes to the Republican candidate that captured the majority of the statewide votes.

The case is League of United Latin American Citizens v. Abbott, 5:18-cv-00175, U.S. District Court, Western District of Texas (San Antonio).

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