Winner-take-all presidential elections: Unconstitutional and unfair to voters in 48 states

William Weld and Sanford Levinson, Opinion contributors

The Electoral College has its problems, from the increasing frequency of presidents winning the election while losing the popular vote, to the outsize and anti-democratic influence of battleground swing states, to the millions of voters in dozens of states who know that their votes make no practical difference in the election.

It doesn’t have to be this way.

For instance, 48 states give all of their electors to the candidate who wins a majority or  plurality of the state popular vote, regardless of how wide or narrow the victory. This freezes out even a large minority from gaining any representation in the Electoral College, and drastically magnifies the significance of a handful of votes in arbitrary swing states.

This “winner-take-all” system, unlike the Electoral College, is not mandated by the Constitution. States could choose to award their electoral votes proportionally to their statewide popular vote, ensuring that every vote in even reliably blue or red states mattered to the outcome. This can be changed without a constitutional amendment.

Winner-take-all is anti-democratic

We are working to do just that. One of us is a former Republican governor of Massachusetts and now a Republican candidate for president, and the other is a liberal Democratic law professor at the University of Texas (who also spends fall semesters in Massachusetts). Although we belong to different political parties, we agree that winner-take-all has unacceptable anti-democratic effects.  

More than that, we believe winner-take-all is in fact unconstitutional under modern voting jurisprudence. For that reason, we are each plaintiffs in four coordinated lawsuits across the country that challenge the constitutionality of winner-take-all.

The first appellate court to consider our challenge will be the U.S. Court of Appeals for the 1st Circuit in Boston on Tuesday, when attorney David Boies will present argument in support of our challenge.

Protesters in Philadelphia on Nov. 13, 2016.

Our claims are grounded on bedrock constitutional precedents that call into question this practice. Specifically, the Supreme Court has for half a century recognized the possibility of invidious “vote dilution”: the commonsense idea that certain electoral systems, even if they nominally treat voters equally, are unconstitutionally designed to magnify the power of majorities and minimize minority voting strength. Winner-take-all suffers from this problem.

Currently, Gov. Weld's home state of Massachusetts has 40 state senators elected from 40 districts. Most of them are Democrats, but some are Republicans. What if the heavily Democratic Massachusetts Legislature passed a law saying that the entire Senate should be elected along party lines in a single statewide vote? This would surely be unconstitutional, because the state's nearly half million Republican voters would effectively and intentionally be excluded from having even a single voice in the legislature.  

Millions of votes translate into zero

The Supreme Court has recognized as much already, because it has blocked the use of particularly large “multimember” districts in contexts where this was designed to prevent racial minorities from being able to gain “fair and effective” representation in state legislatures. The Supreme Court has stated that the same vote dilution principles apply to political minorities as well.

The states opposing our constitutional challenge have three responses to this straightforward case: 

►The first is “we’ve used winner-take-all for a long time.” True, but that just makes the constitutional violation even more urgently in need of correction. It also misses the fact that winner-take-all was first adopted decades before the Supreme Court decided the first “one person, one vote” cases in the 1960s that struck down long-established electoral systems — taken for granted by everyone as beyond rebuke. It is past time to add winner-take-all to that list.

►The states say winner-take-all does comply with “one person, one vote,” because every vote is tallied equally: Every voter in California, for instance, Republican or Democrat, gets to compete for all 55 of California’s electoral votes. But this ignores the concept of vote dilution. Millions of votes for the losing party are systematically translated into zero representation. Such a power grab by the dominant party in any given state would be recognized for what it was: an unfair diminution of minority voting rights. Winner-takes-all is no different; it’s just older.  

Red state or blue, voters would benefit

►Finally, the states suggest that it is not a court’s role to change winner-take-all. But the federal courts have repeatedly put an end to unconstitutional electoral systems, because it is the duty of such courts to interpret and enforce the Constitution. Court intervention is particularly appropriate here: Unlike certain constitutional provisions that give Congress the power to regulate the states, no such provision exists in the Elector Clause. If the courts do not step in to end winner-take-all, it is not clear who will.

The consequences of striking down winner-take-all would benefit all voters, whatever their political party, by making every state a battleground state. They would be lavished with attention, and they would turn out to vote because they would feel like their votes matter.

That is sadly not the case right now in our states of Massachusetts and Texas, where most voters see the presidential election as a foregone conclusion. Most of the country is like us and lives in these safe red or blue areas, where they are all but ignored — 94% of campaign events in 2016 were held in just 12 states.

The federal courts should recognize that winner-take-all is unconstitutional. This would not only be a principled legal decision, it would also improve our democracy from top to bottom and ensure that every vote matters in our country’s most important election.

William Weld, a former governor of Massachusetts, is a candidate for the 2020 Republican presidential nomination. Follow him on Twitter: @GovBillWeld. Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School. 

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This article originally appeared on USA TODAY: Winner-take-all for Electoral College votes is unfair, unconstitutional