Cert Petition Calls on Supreme Courtroom to Finish Electoral School Election “Winner Take All”
Rodriguez v. Newsom may never make it onto the Supreme Court file. That would be a shame, because it poses many important questions about how the American presidential election works and has the potential to radically reshape the way the country is viewed as a community. Exactly the kind of weighty constitutional issues the Supreme Court should be addressing, though likely issues that the conservatively dominated court does not want to address right now.
The case, brought by two California Republicans and two nonprofit organizations, alleges that the presidential election system prevalent in all states except Maine and Nebraska, in all states except Maine and Nebraska, is an unconstitutional dilution of their right to vote. A California Republican’s vote is undoubtedly as worthless as a Utah Democrat in any presidential election, at least in practice. Nobody in these states is going to go head-to-head, advertising dollars will not pour in, and the fact that there is even a turnout is more out of spite than a real belief in the franchise’s power.
It is important to clarify what is not the case. It is not an attack on the electoral college as an institution. In contrast to a national referendum, the requested relief would maintain the tradition of states of appointing voters to do the real job of selecting the next president. What it would do would be to force states to split those voters up to better reflect the actual votes cast as a matter of equal protection.
The attorneys filing this petition are Larry Lessig of Harvard Law, Luis Vera Jr. of San Antonio, and James Denvir and David Boies of Boies Schiller Flexner.
The winners of all presidential elections previously faced a constitutional challenge, but what has changed since the court upheld a ruling confirming the 1960s system – and while Susan Collins ponders the decision, it’s more likely that the Current Roberts Court is setting an established precedent on a percentage basis than even the Warren Court – is the rise in laws prohibiting unfaithful voters. Given that states prohibit voters from using an independent judgment, the – mostly illusory – concept of an indirect presidential election has turned into a declaration that a large number of voters have 100 percent of the voting rights. As the letter points out, it would be unconstitutional for a state to fill the entire state parliament with candidates from one party just because that party received more overall votes in the entire state. Why is this allowed in the election of voters?
Boies hopes the court will see the overall value of the case. “When the judges see what is good for the country in the long run rather than what is good for one political party or the other in the short run, they will see that it will benefit both parties in the long term and strengthen the political system and reduce the pressure to split. “
My first reaction to this argument was that it invites all kinds of ridiculous calamities. I’m old enough to remember Virginia attempted to “fix” the 2012 election by moving the distribution of voters from winning to a Congressional model similar to Maine and Nebraska – a move Obama’s A relatively comfortable 4-point win would have changed Virginia to 9 votes for Romney and 4 votes for Obama. If 13 votes for a 4-point win is a dilution of the electorate, a 5-vote deficit for a win is certainly a constitutional violation. All of this could be avoided if the electoral college were completely segregated from membership in the House of Representatives, which is what the original TEXT of the Constitution provides, but not a single framer would believe the House, which voted for a membership cap in 1921, is coming to an end run around the constitutional amendment process. But unfortunately that is definitely a challenge that this Tribunal will not hear.
In response to concerns about the division of Congressional district, Boies said that a Supreme Court opinion based on equal protection would not support a gerrymandering-based remedy as it would certainly make the problem worse. That’s right, but I’m not sure I trust this Supreme Court that much – especially after it recently waved the white flag to protect the right to vote against partisan gerrymandering – to see this as more than an invitation to vote for To consider congressional district and in a broader sense to bring Gerrymandering into the sphere of the president.
But Boies believes this is inevitable in the status quo. The brief details of the winner’s history relate to the overall election distribution and indicate that not only was it not the “original public meaning” of the requirement of Article II to “determine the election distribution as required by law”, without the convention nor the Federalist Papers commenting on it, and Jefferson specifically writes that it was a bad idea, but one that his followers should adopt because followers of John Adams had already done so. Boies said that while the Democrats have largely defended district delegation to independent commissions to end the scourge of gerrymandering, “I am surprised that the Democratic Party’s good governance wing has won the political realism wing.” Eventually, he says, the Democrats will begin manipulating the blue states as aggressively as the Republican lawmakers gutted Wisconsin for survival under the broken electoral college.
The petitioners believe that the correct solution and the solution supported by the establishment of equal protection is a proportional allocation of voters. If 63 percent of Californians vote for Biden, he should get voters (open the calculator), not 55. That is, Mississippi should give the Democrats 2 of their 6 votes. It is a model that some post-Soviet states have adopted – and not for voters but for parliament itself – when drafting their own constitutions, so that it would not be without precedent.
Personally, I think any decision this court would make would overdo the wandering … until this “wing of good governance” the Dems decides to make every borough in New York state a borough. At this point everyone has to admit and take a different path. In addition, the legal precedent for watering down votes in different counties is not ideal for potential presidential elections.
Could such a thing really cure division? That’s a lot to hold onto an argument, but Boies makes a lot of sense in his pitch.
As a result, the result corresponds more closely to the choice of the voter. It accomplishes a number of secondary goals – compete in each state – there are only a handful of battlefield states. This would get more people into the process. The candidates would have to compete nationally. It would be a greater incentive to go to the center as every vote counts. If you can’t get 50.1 percent in one state today, it’s not worth trying. A positive side effect is to get the parties involved in a real debate that brings the country closer together. The winner takes all the effects and tends to wither the minority political party in a state.
This party atrophy effect is very real. What bothers State Apparachik with voter participation initiatives in elections does not matter. The Stacey Abrams-led initiative to vote in Georgia was impressive, but it was based on the realization that the state was close from afar. While mass participation could flip a district of the State House in a random locale, it is often weighed down by the fact that the top of the ticket feels inaccessible to desperate partisans. And when the party is weak, community ties are weak, and this only adds to the minority party’s hopes for longer-term influence.
While the case is an issue that should be isolated from current party political demands, it would be done by the originalists of the Court, who, despite the “original public understanding” of the Constitution, really only care about the current political positions of the Republican Party what happens if Texas narrowly switches to Democrats in statewide elections. It is an outcome that is likely in the short term and all but inevitable in the medium term, and which if it happens will utterly fail Republicans at the national level.
Oh, Supreme Court. We could resolve the deepening divisions in the country and encourage people who feel disenfranchised in this nation. But ahead of us is an almost announced campaign by Donald Trump in 2024. Or at least a campaign by Don Jr. against Sam Alito and ACB.
Yes. Isn’t it nice to think like that?
(Scroll to the next page to read the petition.)
Earlier: Why is the electoral college constitutional?
Joe Patrice is Senior Editor at Above the Law and co-moderator of Thinking Like A Lawyer. Feel free to email tips, questions, or comments. Follow him on Twitter if you’re into law, politics, and a healthy dose of college sports news. Joe is also the managing director of RPN Executive Search.