Legality of Electoral College process challenged in San Antonio, elsewhere

Texas Electoral College electors take the oath of office in the House Chamber at the Texas Capitol on Dec. 19, 2016. Federal lawsuits have been filed in four states, including Texas, that contest the winner-take-all method that states use to allocate their Electoral College votes. less Texas Electoral College electors take the oath of office in the House Chamber at the Texas Capitol on Dec. 19, 2016. Federal lawsuits have been filed in four states, including Texas, that contest the ... more Photo: San Antonio Express-News File Photo Photo: San Antonio Express-News File Photo Image 1 of / 72 Caption Close Legality of Electoral College process challenged in San Antonio, elsewhere 1 / 72 Back to Gallery

In a rare move, the constitutionality of the country’s Electoral College process is being challenged in lawsuits filed Wednesday in four states, including Texas.

A coalition of law firms led by nationally renowned attorney David Boies and joined by one of the country’s largest civil rights groups, the League of United Latin American Citizens, filed four federal lawsuits in two politically red states, Texas and South Carolina, and two traditionally blue states, California and Massachusetts.

The suits challenge the winner-take-all method that states use to allocate their Electoral College votes. The Texas suit was filed in federal court in San Antonio.

If successful, the suits could change the way the country selects its president.

“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,” LULAC and Boies said in a joint statement. “These suits aim to restore those rights nationwide.”

The statement said all four suits seek to uphold the Constitution’s guarantee that every vote will be treated equally, no matter if it was cast for a Republican candidate, a Democrat or a third-party challenger.

“The winner-take-all system is fundamentally flawed and holds the potential to eliminate the voice of the majority vote,” said Luis Vera of San Antonio, LULAC’s national general counsel.

“In Texas, if you vote for a Democrat, your vote is counted, then thrown away,” Vera said in an interview. “In California, if you vote Republican, your vote is counted and then thrown away.”

Vera said the suits, which are likely to ultimately end up before the U.S. Supreme Court, are nonpartisan. He said the intent is to have the courts force states to implement rules that, among other things, would allocate electors proportionally.

Texas is one of 48 states with a winner-take-all system. The other two states, Maine and Nebraska, allocate electors based on votes in congressional districts. But both systems undermine democracy, the firms said in their joint statement.

The San Antonio lawsuit notes that the presidential candidate that wins the most popular votes in the state — whether 40 percent or 90 percent, for example — is awarded all of Texas’ 38 electors. In the 2016 election, then-candidate Donald Trump got 52 percent of the popular vote in Texas and his opponent, Hillary Clinton, got 44 percent, with the rest going to third-party candidates. Under the state’s system, Trump was awarded all of the state’s electoral votes.

All of the suits generally provide three legal theories — that the winner-take-all system violates the “one person, one vote” principle of the 14th Amendment, the First Amendment’s right to association and Section 2 of the Voting Rights Act, which prohibits racial discrimination in elections.

The system, the plaintiffs argue, violates the 14th Amendment because it magnifies the votes of “a bare plurality of voters by translating those votes into an entire slate of electors who support the nominee of a single party.” At the same time, the votes for all other candidates are given no effect.

While the Electoral College is an archaic institution, a legal challenge is unlikely to succeed in the courts, said Rice University political scientist Mark Jones.

“The Constitution is very clear about the Electoral College. It leaves it up to the state to determine what method they use,” he said. “While I think there are a large number of people who would like to see us get rid of the Electoral College for a more modern and direct form, I don’t think this legal gambit is likely to have much success in the courts.”

Any self-imposed changes to the electors would likely mean one political party ceding some power to another, which is unlikely absent a mandate, Jones said.

Professor Michael Ariens, who teaches constitutional law at St. Mary’s School of Law, said he hasn’t seen the pleadings since they are so new. But he said it sounds like the plaintiffs are using one part of the Constitution to attack the constitutional section that leaves it up to the states on what kind of method they use for the Electoral College.

And, he said, it also appears the plaintiffs filed the suits for strategic reasons. The states are in four separate jurisdictions covered by federal circuit courts of appeal. Texas is in the 5th Circuit. California is in the 9th Circuit, Massachusetts is in the 1st and South Carolina is in the 4th.

“They’re trying to get the district courts to write contrary decisions so it’ll get up to the appellate level no matter what happens,” Ariens said. “Their goal is to create a circuit split, a situation in which one circuit court holds winner-take-all constitutional and another circuit holds it unconstitutional. This puts pressure on the Supreme Court to resolve that circuit conflict.”

LULAC also says the system violates the First Amendment because of the burdens it places “on the right of association and on the right to have a voice in presidential elections through casting a vote.”

Additionally, the plaintiffs contend the system adds to Texas’ history of discrimination. Although Texas has 38 electors and Hispanics and blacks represent more than 40 percent of the voting-age citizen population, the winner-take-all system allows white voters to usually defeat electors slated for minority preferred candidates, LULAC argues.

LULAC also contends that the winner-take-all system weakens the influence of Texas in presidential campaigns because candidates focus on a few “battleground” or “swing” states that are not representative of the United States. Texas is not a swing state, the plaintiffs say.

Furthermore, the winner-take-all system distorts presidential campaigns and facilitates outside interference in elections. That’s important in close elections, where the system makes it easier and more likely “for a very small number of voters in a few predictable battleground states to determine the final electoral result than would be the case with some kind of proportional allocation of electors.”

The San Antonio suit, which names as defendants Texas Gov. Greg Abbott and Texas Secretary of State Rolando Pablos, seeks an order barring the use of the winner-take-all system “or any other non-representational system” such as allocation by congressional district.

Texas Republican Party Chairman James Dickey said the Constitution clearly lays out the process and the Electoral College is “proven to be successful at respecting the republic we are are founded to be.”

“It’s not surprising that Democrats who are unable to win at Texas ballot boxes are trying to win via the courts,” Dickey said.

A spokesperson for Pablos’ office said via email Wednesday that it’s “not going to comment at this time because it’s pending litigation.”

However, the spokesperson said it’s worth noting that the section of the state’s Election Code that will be at issue in the Texas lawsuit has been on the books since 1986: Under Section 192.005, Vote Required for Election, it says that “The set of elector candidates that is elected is the one that corresponds to the candidates for president and vice-president receiving the most votes.”

All four suits were filed on behalf of multiple plaintiffs, including LULAC, the largest Hispanic membership organization in the country. LULAC is joined in the Texas suit by Pastor Joseph C. Parker, a civil rights activist who marched with Martin Luther King Jr., and constitutional scholar Sanford Levinson.

In California, LULAC is joined by actor and comedian Paul Rodriguez, who is a registered Republican. And in Massachusetts, former Republican Gov. William Weld is a plaintiff, LULAC and Boies said in their statement.

Five U.S. presidents have been elected despite losing the popular vote: John Quincy Adams in 1824, Rutherford Hayes in 1876, Benjamin Harrison in 1888, George W. Bush in 2000 and Donald Trump in 2016.