The American presidential election process is curiously composed of two elections: a widely publicized election in which the general public is allowed to participate and another one in which obscure electors1×1. See David W. Abbott & James P. Levine, Wrong Winner: The Coming Debacle in the Electoral College 18–19 (1991). gather to determine the new President. All but two states use the winner-take-all (WTA) system in which the candidate with the majority of the statewide popular vote receives the votes of all of the state’s electors.2×2. The two exceptions are Maine and Nebraska. See Chiafalo v. Washington, 140 S. Ct. 2316, 2321 n.1 (2020). The WTA approach exacerbates the difference between the popular will and the final result, increasing the likelihood of electing the “wrong winner”: a President who won the nationwide electoral vote but not the popular one.3×3. See Abbott & Levine, supra note 1, at 22. In fact, in five presidential elections, the winning candidate did not receive the largest share of the popular vote. Dave Roos, 5 Presidents Who Lost the Popular Vote but Won the Election, Hist. (Nov. 2, 2020), https://www.history.com/news/presidents-electoral-college-popular-vote [https://perma.cc/SS3Y-8PJC]. Recently, in Baten v. McMaster,4×4. 967 F.3d 345 (4th Cir. 2020). the Fourth Circuit affirmed the dismissal of a challenge to South Carolina’s use of the WTA approach in the presidential election context.5×5. Id. at 361. The Fourth Circuit’s decision exposed a settled doctrinal landscape lined up in defense of the WTA system, suggesting that forces seeking WTA reform should focus their efforts on state-level political action rather than federal litigation.
In every presidential election since 1980, all of South Carolina’s votes in the Electoral College have been allocated to candidates from the Republican Party.6×6. See id. (Wynn, J., dissenting); Complaint for Declaratory and Injunctive Relief ¶¶ 46–47, Baten v. McMaster, 374 F. Supp. 3d 563 (D.S.C. 2019) (No. 18-cv-00510) [hereinafter Complaint]. In 2018, six voters who had voted for Democratic candidates in past presidential elections and planned to do so again brought suit against the state to challenge the WTA system.7×7. Baten, 967 F.3d at 350; Complaint, supra note 6, ¶¶ 22–28. First, the plaintiffs argued that the WTA system violates the Fourteenth Amendment’s Equal Protection Clause by diluting the votes of the political minority in the selection of electors and discarding their ballots at the second, elector-based round of voting, thus undermining the “one person, one vote” principle.8×8. Complaint, supra note 6, ¶¶ 14, 41. Second, they contended that the system runs counter to the First and Fourteenth Amendments by burdening their freedom of association.9×9. Id. ¶¶ 15, 57. Third, the plaintiffs — three of whom were African American — claimed that the system violates section 2 of the Voting Rights Act10×10. Pub. L. No. 89-110, § 2, 79 Stat. 437, 437 (1965) (codified as amended at 52 U.S.C. § 10301). (VRA) by preventing African American voters from having their preferred candidate receive representation in electoral votes.11×11. Complaint, supra note 6, ¶¶ 16, 23, 25–26, 76–79.
The District Court for the District of South Carolina dismissed all three claims.12×12. Baten v. McMaster, 374 F. Supp. 3d 563, 565 (D.S.C. 2019). On the equal protection claim, the court relied in part on the Supreme Court’s summary affirmance of Williams v. Virginia State Board of Elections13×13. 288 F. Supp. 622 (E.D. Va. 1968), summarily aff’d mem., 393 U.S. 320 (1969) (per curiam). to conclude there was no violation because the system did not “unfairly elevate one person’s vote over another.”14×14. Baten, 374 F. Supp. 3d at 569. Regarding the freedom of association claim, the court found that the plaintiffs’ argument “conflates a diminishing motivation to participate with a severe burden on the actual ability of people to participate in the voting process.”15×15. Id. at 570. Finally, because “the WTA system does not mean that the political process is ‘not equally open to participation by’ Democratic voters, whether they be African-American or of another race,” the court dismissed the VRA claim as well.16×16. Id. at 571 (quoting 52 U.S.C. § 10301(b) (emphasis added)).
The Fourth Circuit affirmed. Writing for the panel, Judge Niemeyer17×17. Judge Niemeyer was joined by Judge Floyd. Baten, 967 F.3d at 348. found that challenges to WTA systems are justiciable and that the plaintiffs had standing.18×18. Id. at 352. Turning to the merits, the court rejected the plaintiffs’ two-part equal protection claim that the WTA system first dilutes votes by not selecting presidential electors aligned with the political minority and then discards minority votes in the elector-based presidential vote.19×19. See id. at 355–58.
On vote dilution, the court reasoned that “each State has plenary authority to determine through its legislature how to appoint Electors[,] . . . [which] includes the authority to require Electors to vote for the presidential ticket that received the plurality of votes in the State.”20×20. Id. at 355. Looking to Williams and Chiafalo v. Washington,21×21. 140 S. Ct. 2316 (2020). the court found that “no vote in the South Carolina system is diluted” since “each vote is counted equally”22×22. Baten, 967 F.3d at 355. and “all persons entitled to vote have had the opportunity to vote.”23×23. Id. at 356. The court found that White v. Regester24×24. 412 U.S. 755 (1973). was inapposite since White “addresse[d] the dilutive effects of creating multi-member legislative districts and not of appointing Electors as a slate.”25×25. Baten, 967 F.3d at 356. While the Court in White found that racial minority groups in two multimember districts were “effectively excluded from the political process to the extent that they were unable to elect representatives,”26×26. Id. that holding required a showing that minority groups had “less opportunity than did other residents in the district to participate in the political processes.”27×27. White, 412 U.S. at 766.
The court then disposed of the vote discarding argument by distinguishing the case from the Supreme Court’s decision in Gray v. Sanders.28×28. 372 U.S. 368 (1963). The Court in Gray invalidated Georgia’s statewide election system that allocated to each county a certain number of “units” to award to the popular-vote winner of that county.29×29. See id. at 371, 379–80. The Fourth Circuit panel noted that unlike the state election context in Gray, “in the presidential context, there is no statewide elected seat up for grabs.”30×30. Baten, 967 F.3d at 357. The court also highlighted the Gray Court’s recognition that the “type of ‘numerical inequality’ that may render a state electoral process unconstitutional is a feature — not a flaw — of the Electoral College system.”31×31. Id. at 358 (quoting Gray, 372 U.S. at 378). Further, since “[a]ll votes cast in presidential elections in South Carolina are treated the same[,] . . . there is no risk, as there was in Gray, that votes are treated differently based on geography.”32×32. Id. Therefore, the court dismissed the plaintiffs’ Equal Protection Clause claim.33×33. See id.
Moving to the First Amendment issue, the court concluded that the plaintiffs’ claim that the WTA interferes with their freedom of association was “far more tenuous than those [claims] recognized as First Amendment violations.”34×34. Id. at 359. While the First Amendment protects the right to associate for purposes of advocacy, the court held, it “provides no guarantee that a speech will persuade or that advocacy will be effective.”35×35. Id. (quoting Smith v. Ark. State Highway Emps., Loc. 1315, 441 U.S. 463, 465 (1979) (per curiam)). Furthermore, the court determined that the First Amendment does not “guarantee to the residents of South Carolina attention from candidates for nationwide office.”36×36. Id. The WTA system may “raise the stakes of victory,” but it does not deprive the plaintiffs of the opportunity to advocate for their desired outcome.37×37. Id. (alteration in original) (quoting Lyman v. Baker, 954 F.3d 351, 377 (1st Cir. 2020)).
Finally, the court found that the plaintiffs did not satisfy the three-pronged standard for proving a section 2 VRA violation and that the current case was distinguishable from the multimember district situation in Thornburg v. Gingles.38×38. 478 U.S. 30 (1986). The court noted three requirements for plaintiffs bringing a claim under § 2 of the VRA: “(1) ‘the minority group . . . is sufficiently large and geographically compact to constitute a majority in a single-member district;’ (2) ‘the minority group . . . is politically cohesive;’ and (3) ‘the [W]hite majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority’s preferred candidate.’” Baten, 967 F.3d at 360 (alterations in original) (quoting Gingles, 478 U.S. at 50–51); see also id. at 360–61. In presidential elections, the court noted, there are no districts — instead, “[t]he relevant geographic area . . . is the entire State, and Black voters do not constitute a majority statewide.”39×39. Baten, 967 F.3d at 361. Therefore, the court found, Black voters cannot be held to have had their votes diluted under Gingles: the plaintiffs were not represented by their preferred electors because they had voted for an unpopular candidate, not because they had been excluded based on their status as Black voters.40×40. See id. at 360–61.
Judge Wynn dissented, noting that the plaintiffs had “stated plausible violations of the First and Fourteenth Amendments and the Voting Rights Act.”41×41. Id. at 361 (Wynn, J., dissenting). He found that both the vote dilution42×42. Id. at 370 (noting that while the Constitution allocates electors to the states, states are not free to “replicate that allocation on a smaller scale if that system would violate the Equal Protection Clause”); see also id. at 368–71. Citing historical patterns and the existence of a single “district” from which electors are selected, Judge Wynn concluded that “South Carolina’s system of selecting presidential electors has many of the features that risk creating . . . vote dilution.” Id. at 369. and vote discarding arguments were plausible based on the states’ obligation to comply with the Fourteenth Amendment.43×43. See id. at 371–72 (finding the plaintiffs plausibly alleged that the WTA system discards votes). On the First Amendment violation, Judge Wynn chided the district court for misunderstanding the plaintiffs’ allegation. In his view, the plaintiffs’ allegation was not “that Democrats do not come to South Carolina [to campaign],” but rather “that all major party candidates do not come to South Carolina because of the state’s winner-take-all system.”44×44. Id. at 374. He also remarked that if the plaintiffs’ First Amendment claims were allowed to proceed, South Carolina might not be able to demonstrate a legitimate state interest in the WTA system.45×45. Id. at 375 (“[P]reservation of political power for the people who currently hold power is not a legitimate state interest.”). Finally, Judge Wynn found that the plaintiffs had sufficiently alleged the three Gingles prerequisites for proving a section 2 VRA claim.46×46. Id. at 378–79.
The seemingly fixed doctrinal landscape exposed by Baten shows that forces for WTA reform should focus their efforts on mobilizing constituencies for state-level political reforms rather than federal litigation. The WTA approach is replete with defects, and a nationwide revision of the system could plausibly take place through Congress, the federal judiciary, or state legislatures. While congressional reform efforts have largely focused on proposals of constitutional amendments, the vast majority of attempts have thus far been fruitless.47×47. See, e.g., Past Attempts at Reform, FairVote, https://www.fairvote.org/past_attempts_at_reform [https://perma.cc/HD64-AQ6W]. Baten’s reasoning — together with three other recent circuit court decisions reaching the same result48×48. See Rodriguez v. Newsom, 974 F.3d 998, 1002 (9th Cir. 2020); Lyman v. Baker, 954 F.3d 351, 355 (1st Cir. 2020); League of United Latin Am. Citizens v. Abbott, 951 F.3d 311, 313 (5th Cir. 2020). — demonstrates the hostility of the federal judiciary toward reforming the WTA system. The track record of the Roberts Court on election law also makes it unlikely that the Supreme Court will invalidate the system on its own.49×49. Cf. Nicholas O. Stephanopoulos, The Anti-Carolene Court, 2019 Sup. Ct. Rev. 111, 178–81 (exploring legal realist explanations of the Roberts Court’s approach to election law decisions). Consequently, the best avenue to eliminate the WTA system might be collective state legislation, such as the National Popular Vote Interstate Compact.50×50. Agreement Among the States to Elect the President by National Popular Vote, Nat’l Popular Vote, https://www.nationalpopularvote.com/written-explanation [https://perma.cc/2JJF-YVJV].
The WTA system is ripe for reform. Unlike other aspects of the Electoral College, the WTA approach is not mandated by the Constitution.51×51. See Katherine Florey, Losing Bargain: Why Winner-Take-All Vote Assignment Is the Electoral College’s Least Defensible Feature, 68 Case W. Rsrv. L. Rev. 317, 336–37, 370 (2017). As a state-initiated mechanism, the WTA system contributes to “the risk of popular-electoral splits,” creates “incentives for fraud[ and] voter suppression,” and “arbitrarily privileg[es] some voters’ preferences at others’ expense.”52×52. Id. at 317. Given how the WTA system hinges the presidential election on only a few states, the election may fall prey to outside influence more easily.53×53. See Natasha Bertrand, The “Unique” Nature of the US Voting System Could Help Russia Tip the Scales of Future Elections, Experts Say, Bus. Insider (Oct. 5, 2017, 7:05 PM), https://www.businessinsider.com/did-russia-swing-the-election-electoral-college-meddling-2017-10 [https://perma.cc/H9YT-6T4E]. The WTA system also aggravates polarization among the political parties and the general public.54×54. Cf. Carlos Aramayo & Carlos Pereira, Political Polarization: What the U.S. Can Learn from Latin America, Brookings Inst. (Mar. 1, 2011), https://www.brookings.edu/opinions/political-polarization-what-the-u-s-can-learn-from-latin-america“>https://www.brookings.edu/opinions/political-polarization-what-the-u-s-can-learn-from-latin-america/”>https://www.brookings.edu/opinions/political-polarization-what-the-u-s-can-learn-from-latin-america [https://perma.cc/KB23-JVJJ]. Moreover, when the result of the popular vote does not align with that of the Electoral College, “the constitutional provision [enabling such an outcome] . . . would itself be called into question.”55×55. Abbott & Levine, supra note 1, at 46; see also id. (“[T]he central legitimacy myth in the United States is that our leaders govern by virtue of their selection by the voters . . . .”).
Movements to reform the Electoral College have traditionally sought national mandates through constitutional amendments.56×56. Alexander Keyssar, Why Do We Still Have the Electoral College? 4–5, 58 (2020). However, despite more than five hundred attempts in Congress since 1797 to change the presidential election system, all but one proposal, the Twelfth Amendment, have failed.57×57. Abbott & Levine, supra note 1, at 117. In 1956, a proposal to award the candidate winning the statewide popular vote in each state two electoral votes and allocate the remaining electoral votes in proportion to the nationwide popular vote58×58. Ralph M. Goldman, Hubert Humphrey’s S. J. 152: A New Proposal for Electoral College Reform, 2 Midwest J. Pol. Sci. 89, 90 (1958). passed in the House of Representatives but failed in the Senate.59×59. Past Attempts at Reform, supra note 47. After the 1968 presidential election, a proposal to abolish the Electoral College in favor of a direct popular election passed in the House with a vote of 338–70, but it failed in the Senate because of a filibuster.60×60. Keyssar, supra note 56, at 225, 252. Absent the stimulus of a profound event or widespread public consensus on the need for change, congressional abolition of the WTA approach will likely remain woefully Sisyphean.61×61. See id. at 6–11; Vinod Bakthavachalam & Reed Hundt, Opinion, How Trump Is Running to Snatch Victory from the Jaws of Defeat, Again, N.Y. Times (Feb. 12, 2020), https://nyti.ms/2UK0ZZa“>https://nyti.ms/2UK0ZZa”>https://nyti.ms/2UK0ZZa [https://perma.cc/CJJ2-KVAG].
While many scholars contend that federal courts are uniquely situated to change the WTA system,62×62. See, e.g., Michael Weisbuch, Note, Winner-Take-All as a Collective Action Problem, 35 J.L. & Pol. 67, 69 (2019); cf. Peter H. Schuck, Public Law Litigation and Social Reform, 102 Yale L.J. 1763, 1769 (1993) (book review) (noting that some scholars view courts as “effective reformers”). Baten suggests that the judiciary is poorly suited to do so.63×63. While Baten foreclosed challenges to WTA elections only in the Fourth Circuit, efforts in three other circuits have recently failed. See cases cited supra note 48. There is a dearth of cases examining the constitutionality of the WTA system in presidential elections;64×64. See Baten, 967 F.3d at 370, 374 (Wynn, J., dissenting). existing constitutional vote dilution precedents thus focus on state and local legislative elections.65×65. See, e.g., id. at 353 (majority opinion); see also Complaint, supra note 6, ¶¶ 50–52. Williams, decided in 1969, is the only case involving the WTA approach in the presidential context to have reached the Supreme Court.66×66. Williams v. Va. State Bd. of Elections, 393 U.S. 320 (1969) (per curiam) (mem.); see also Complaint, supra note 6, ¶ 53. In the decades since Williams, the Court has “several times elaborated on the scope of the one-person, one-vote rule,”67×67. Evenwel v. Abbott, 136 S. Ct. 1120, 1124 (2016) (discussing rulings in the districting context). yet the Court has not had the opportunity to reconsider the WTA system. Since Williams was a summary affirmance without an opinion, the only Supreme Court precedent that analyzed voter equality in the presidential election context is Bush v. Gore,68×68. 531 U.S. 98 (2000) (per curiam). and the Court severely limited the applicability of that case.69×69. See id. at 109. Some scholars contend that the possibilities of election reform associated with Bush v. Gore are now nonexistent. See, e.g., Richard L. Hasen, The Untimely Death of Bush v. Gore, 60 Stan. L. Rev. 1, 3 (2007); see also id. at 4 (“[W]e should abandon any hope created by [Bush v. Gore] that the judiciary would serve as an engine of election administration reform.”). In addition, while the Court in Bush v. Gore held that ballots should be treated equally at the ballot-counting stage of the presidential electoral process,70×70. See Bush v. Gore, 531 U.S. at 100, 104. the differential treatment of ballots under the WTA system takes place in the subsequent stage of allocating ballots to electors.
Beyond rejecting the plaintiffs’ specific claims, the Fourth Circuit’s decision suggests that the current doctrinal landscape is wholly inhospitable to WTA challenges. On the equal protection claim, the court found that under the WTA system, “all persons entitled to vote have had the opportunity to vote and . . . their votes have been counted with equal weight, regardless of political affiliation.”71×71. Baten, 967 F.3d at 356. The decision suggested that the plaintiffs’ “essential problem” — that “they did not have enough votes to achieve the outcome they desired” — is one that the judiciary is unable to remedy.72×72. Id. The court’s treatment of the VRA claim is equally instructive. By noting that Gingles’s “requirements do not map onto the type of challenge that the plaintiffs have mounted,”73×73. Id. at 360. the majority implied that the Gingles test could never be satisfied by a WTA challenge in the presidential election context. Although the Supreme Court has not yet decided the question, the Baten court’s WTA analysis seems to align with that of three other circuit courts that recently considered WTA challenges and issued unanimous decisions dismissing the plaintiffs’ claims.74×74. The First and Fifth Circuits affirmed the dismissal of suits in Massachusetts and Texas, respectively, that alleged that the WTA system violates the Equal Protection Clause and the First Amendment. See Lyman v. Baker, 954 F.3d 351, 355 (1st Cir. 2020); League of United Latin Am. Citizens v. Abbott, 951 F.3d 311, 313 (5th Cir. 2020). The Ninth Circuit, the last to consider the WTA system in this round of parallel litigations, similarly dismissed the claims. See Rodriguez v. Newsom, 974 F.3d 998, 1002 (9th Cir. 2020). Moreover, as members of the Roberts Court appear ideologically committed to remaking election law into doctrines that allow powerful parties to do as they please at the state level,75×75. See Stephanopoulos, supra note 49, at 178 (“Both the Court’s intrusions into, and its abstentions from, the political process . . . empirically benefit the Republican Party, whose presidents appointed a majority of the sitting Justices.”); see also id. at 180. the Supreme Court is unlikely to invalidate the WTA system.76×76. See id. at 113–16 (discussing the Court’s recent approach of “refusing to fix democratic malfunctions judicially . . . [and] thwarting nonjudicial actors from dealing with them,” id. at 115).
Baten suggests that collective action at the state level might be the most promising avenue for reform. Although courts could deliver relief when “politicians’ incentives conflict with voters’ interests,”77×77. Gill v. Whitford, 138 S. Ct. 1916, 1941 (2018) (Kagan, J., concurring). other Western countries employ various means of reform, including external review bodies and legislative initiatives.78×78. See, e.g., Thomas Carl Lundberg, Electoral System Reviews in New Zealand, Britain and Canada: A Critical Comparison, 42 Gov’t & Opposition 471, 473–75 (2007) (discussing electoral reform through external groups). When courts in other countries do take action, their impact may be indirect. See Lidia Nunez & Kristof T.E. Jacobs, Catalysts and Barriers: Explaining Electoral Reform in Western Europe, 55 Eur. J. Pol. Rsch. 454, 467–68 (2016). Baten’s logic also makes clear that while nationwide redesign is unlikely, state legislatures have plenary power in governing their electors.79×79. See Baten, 967 F.3d at 355; Barry Fadem, Supreme Court’s “Faithless Electors” Decision Validates Case for the National Popular Vote Interstate Compact, Brookings Inst. (July 14, 2020), https://www.brookings.edu/blog/fixgov/2020/07/14/supreme-courts-faithless-electors-decision-validates-case-for-the-national-popular-vote-interstate-compact“>https://www.brookings.edu/blog/fixgov/2020/07/14/supreme-courts-faithless-electors-decision-validates-case-for-the-national-popular-vote-interstate-compact/”>https://www.brookings.edu/blog/fixgov/2020/07/14/supreme-courts-faithless-electors-decision-validates-case-for-the-national-popular-vote-interstate-compact [https://perma.cc/VM37-XPKY]. Two states currently reject the WTA approach in presidential elections,80×80. See supra note 2. and numerous alternatives to the WTA system exist.81×81. See Gaming the Electoral College, 270toWin, https://www.270towin.com/alternative-electoral-college-allocation-methods/?year=2016“>https://www.270towin.com/alternative-electoral-college-allocation-methods/?year=2016”>https://www.270towin.com/alternative-electoral-college-allocation-methods/?year=2016 [https://perma.cc/5CTU-2VMC]. The most ambitious attempt to enhance the representativeness of the presidential electoral process, the National Popular Vote Interstate Compact,82×82. The National Popular Vote Interstate Compact proposes to change the presidential election system from a state-based federal system to a national popular vote system. See Agreement Among the States to Elect the President by National Popular Vote, supra note 50. is “a state-based approach that preserves . . . the power of the states to control how the President is elected.”83×83. Id.; see also Adam Schleifer, Interstate Agreement for Electoral Reform, 40 Akron L. Rev. 717, 718–19, 725 (2007). The Compact has so far garnered the support of sixteen jurisdictions of various sizes, amounting to a total of 196 electoral votes and leaving 74 more electoral votes until it goes into effect.84×84. Status of National Popular Vote Bill in Each State, Nat’l Popular Vote, https://www.nationalpopularvote.com/state-status“>https://www.nationalpopularvote.com/state-status”>https://www.nationalpopularvote.com/state-status [https://perma.cc/XAD4-J73A]. In addition, Americans may currently be unusually open to electoral reforms.85×85. See Candice Bernd, Winner-Take-All Electoral College Could Enable Dreaded Constitutional Crisis, Truthout (Sept. 29, 2020), https://truthout.org/articles/winner-take-all-electoral-college-could-enable-dreaded-constitutional-crisis“>https://truthout.org/articles/winner-take-all-electoral-college-could-enable-dreaded-constitutional-crisis/”>https://truthout.org/articles/winner-take-all-electoral-college-could-enable-dreaded-constitutional-crisis [https://perma.cc/7VAB-DB46].
Baten may ultimately be a blessing in disguise. Successfully reforming the WTA system will inevitably be an uphill battle fraught with resistance and compromise and requiring broad public participation. Perhaps it is time to look not to the judiciary, but directly to the people, for change.