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Challenge to Massachusetts "Winner-Take-All" Voting Met With Skepticism in First Circuit

close up of campaign voting flag pins on white
By Laura Temme, Esq. on September 12, 2019

Forty-eight states and the District of Columbia employ a “winner-takes-all” approach to presidential elections – the candidate who wins the majority of the popular vote gets all of that’s states electors for the Electoral College. However, in recent decades, candidates and voters have begun to take issue with the fact that this system allows a candidate who wins the popular vote to lose the presidential election.

One such challenge has made its way to the First Circuit Court of Appeals, where the winner-take-all (WTA) rules of Massachusetts are under the microscope.

In oral arguments on September 10, attorney David Boies, possibly best known for representing Vice President Al Gore in Bush v. Gore, argued that when voters retain the power to appoint electors, that process must conform to constitutional guarantees.

Is Winner-Take-All as “Invidious” as a Poll Tax?

Calling electors in presidential elections a “ministerial act” rather than representatives chosen by the popular vote, Boies pointed to other voter restriction cases to support his conclusion that WTA violates the 14th Amendment. Where an election employs a two-step process, Boies argued, discarding votes at the first stage unconstitutionally minimizes the votes of those in a state’s political minority.

The panel seemed skeptical, noting that this kind of argument has struggled to gain traction anywhere in the nation despite repeated attempts. Where exactly does the voter dilution come in, one judge wondered. If every vote carries the same weight up until a winner is called, where is the constitutional violation?

Counsel for the governor of Massachusetts argued that an equal protection violation in voting requires “invidious discrimination,” such as the literacy requirements and poll taxes that historically affected racial minorities. Here, they argue, there are no barriers to participating in the election and therefore no “invidious discrimination.”

The Bigger Picture

The case in Massachusetts is one of four lawsuits coordinated across the country by Harvard Law professor and longtime Electoral College critic Lawrence Lessig. Although most states employ some form of the winner-take-all system, challengers chose strategic states: Massachusetts, California, Texas, and South Carolina.

The advocates behind these lawsuits point to two significant problems with winner-take-all: First, they argue, the practice leads to millions of votes being effectively tossed out in presidential elections. Second, without “winner take all,” they contend that presidential candidates would have more of an interest in campaigning nationwide.

Some critics have called for the elimination of the Electoral College altogether. However, that would require a constitutional amendment. By targeting state WTA procedures, those looking to change how the Electoral College functions stand a better chance of having an impact before the 2020 election.

We’ll be keeping an eye on Lyman v. Baker (18-2235) as well as the other WTA challenges as they develop.

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