VOTING RIGHTS AND THE UNCONSTITUTIONALITY OF THE ELECTORAL COLLEGE WINNER-TAKE-ALL ALLOCATION.

• Author: Schultz, David

1. INTRODUCTION

   The 2020 presidential election was effectively over in approximately in all but a handful of states well before it began.(1) This is because of the Electoral College, the partisan geography and polarization of the American electorate,2 and the decision of forty-eight of the fifty states plus the District of Columbia to award electors on a winner-take all basis.(3) In all but seven states, it effectively did not matter if you voted if you were a member of the minority party.(4) Republican voters in New York or California and Democratic voters in Alabama or Mississippi might as well have stayed home on election day when it came to the presidential election. Your vote effectively did not matter.

   This article contends that the winner-take-all allocation for awarding electoral votes (currently used in forty-eight states) disenfranchises voters. It does so not because it abrogates a right to vote for president--because there is no right to vote for that office5--but because such an allocative method violates the First (Free Speech) and Fourteenth Amendments (Equal Protection Due Process Clauses) in that it discriminates on the basis of partisanship or party preference, arbitrarily classifies individuals, and constitutes an impermissible viewpoint or content-based form of expression. In some cases, it may also violate state constitutional protections.

2. HISTORY OF THE ELECTORAL COLLEGE

   The United States is unique among democracies in many ways, including the method employed to elect its chief executive officer. In a democracy, the prime minister or president should be selected by some version of direct popular vote, where the person or party that receives the most votes gets selected or elected.(6) In the United States, the president is ultimately not selected by a popular vote but by the Electoral College, as described by Article II of the Constitution and the Twelfth Amendment.

   Consider where the United States was in 1787 at the Constitutional Convention. Dueling images of executive power and demands of political compromise were presented to the Framers.(7) In one, as Robert Dahl8 and others have pointed out,9 fear, especially of majoritarian power, was at the forefront in terms of constitutional design.(10) When the United States declared its independence from England, it was in part because of the abuses of power by King George III.(11) The Declaration of Independence is a bill of particulars detailing the abuses of rights the king had inflicted.(12) Asa result of this experience with an overbearing king, the first U.S. constitution--the Articles of Confederation--called for a weak national government and presidency.(13) Yet conversely, the experiences of the Articles government, especially Shays's Rebellion,14 demonstrated to many of the Framers the need to strengthen the national government. Hence, one image in the mind of the Framers was to create a national government powerful enough to perform its tasks yet not so powerful as to turn the presidency into another king.(15) This is the challenge Alexander Hamilton set forth in Federalist number 68.(16)

   Yet the Constitutional Convention was also about compromises. Historian Richard Hofstadter points to the fact that the constitutional framers were political realists and politicians, challenged by the need to forge compromise among and with diverse interests.(17) The Constitutional Convention was marked by disputes between the more and less populous states and over the issue of representation. It was also challenged by the divide over slavery.(18) Free and slave states feared that the other side, depending on the representation schema selected for Congress, would prevail and that there would be a United States of all slave states or all free states. The resulting compromises, including the two-house Congress with equal and per capita representation, the Three-Fifths Compromise, and the delay on the halt of the slave trade, all spoke to the need to overcome polarization and division.(19) The structure of the American political system, with checks and balances, separation of powers, representation, and federalism, was a mechanism to break up and channel political power so that simple majorities could not have their way.(20)

   Similarly, when the task came to selecting the president, fears of majoritarianism prevailed.(21) Moreover, consider the time, 1787. Most countries of the world were kingdoms or other forms of non-democratic regimes. The United States was the first experiment in democracy, and the question was the best way to create a popular government without falling prey to the problems of majority factions.(22) Alexander Hamilton, again in Federalist number 68, described the need to create a president who was above popular opinion and able to lead while also accountable to the people.(23) At the Constitutional Convention, similar debates occurred over the selection of the president, with little support for direct selection by the people.(24) The result was the Electoral College, where the right of the people to vote was largely left to the states to decide.(25)

   At its simplest, the selection of the president would be two-stage in the original Constitution.(26) States would pick the president.(27) They did so by appointing electors, who would then pick the president.(28) The person receiving the most electoral votes would be president and the runner up vice-president.29 The original Constitution was designed in the hope that political parties would not emerge or did not already exist,30 and the electors would serve almost as elder, wise sages to pick the president.(31) Martin Diamond, perhaps the most emphatic defender of the Electoral College, saw it as yet another mechanism to check the majority faction.(32) Among the hallmarks of the Electoral College is letting each elector make an individual choice for the selection of president.

   Very quickly, the carefully tuned structure of the Electoral College fell apart, with many of the constitutional framers urging winner-take-all allocation of electoral votes in each state to maximize their influence and possibly reward the party in control.(33) By the middle of the 1790s, political parties emerged across America, with political figures such as Thomas Jefferson urging states to create a winner-take-all system for the allocation of electoral votes.(34) He specifically argued for that system in Virginia during the election of 1800.(35) The idea was that such a system would maximize the political influence of states. It was also appealing to the then emerging parties because it meant that the opposition in a specific state would get no electoral votes, creating a zero-sum game for elections that rewarded partisan strength and punished the opposition.(36) With Jefferson's party in control, this was effectively a way to help his partisan interests at the expense of the Federalist Party. The winner-take-all system also had a "banking" aspect; it allowed a party to bank the states it knew it would win, allowing it then to concentrate upon the few that were uncertain and potentially decisive.37 Moreover, in turning the selection of the president and the electors into de facto party functions, it transformed the idea of electors from wise independent persons who would find the best president for the nation into tools of the party.

   The 1800 presidential election completed the transformation of presidential selection into a party mechanism when it featured the first fully partisan election.38 Thomas Jefferson ran with a slate that included Aaron Burr as the Democratic-Republican Party vice-presidential candidate against the Federalist slate of John Adams and Thomas Pinckney.(39) The election was rife with intrigue. Alexander Hamilton opposed Adams's re-nomination; the sitting vice-president Jefferson opposed him.(40) Jefferson encouraged his party members to cast their votes for him and Burr as a ticket, leading to a tie and a tense struggle in the House of Representatives that eventually produced Jefferson as president.(41) The result of the disputed election of 1800 was the full emergence of party politics in the United States, contrary to the fears of George Washington in his 1796 Farewell Address42 and also the design of the Constitution and the presidential selection process. It took until the adoption of the Twelfth Amendment to fully recognize presidential party politics,43 but it was a crude graft onto a system that had envisioned an entirely different way to think about what purpose the Electoral College was to serve.

   Over time, the Electoral College and presidential selection have evolved. By the early 1800s, states began letting eligible voters select the electors, but they were still subjected to the winner-take-all rule. While on the surface, it appears that presidents are picked by the popular vote, the reality is that by the grace of the states, the November elections are where voters select the electors who are picked by the parties to pick the president of the United States.(44) As the Supreme Court again reminded America in Bush v. Gore, there is no right to vote for president of the United States;45 that task remains with the states, which have largely turned it over to the parties. With the Apportionment Act of 1911 limiting the number of house representatives to 435 members46 and the Twenty-Third Amendment giving the District of Columbia three electoral votes,47 today there are a total of 538 electors, with 270 electoral votes necessary to win the Presidency.(48) The presidential election is thus fifty-one separate elections, featuring forty-eight jurisdictions with winner-take all allocations of electoral votes (Maine and Nebraska are the exceptions), where the race is to get to 270 electoral votes.

3. ELECTORAL COLLEGE PERVERSIONS

   While some supporters of the Electoral College such as Martin Diamond might see it as an institution protecting against the tyranny of the...