Federal lawsuits filed simultaneously in Texas and three other states are seeking to end the system that awards every electoral vote to the winning presidential candidate in each state.
The lawsuits argue that the winner-take-all system violates voting rights by discarding ballots cast in support of losing candidates in the four states, particularly Democrats in the GOP strongholds of Texas and South Carolina, and Republicans in Democratic California and Massachusetts.
The winner-take-all system — a standard for more than 180 years that is used by almost every state — not only violates the “one person, one vote” principle, but it has turned democracy on its head, allowing presidential candidates to ignore millions of voters while focusing on the handful of competitive “battleground” states where the outcome is not preordained, the lawsuits argue.
It’s not just Lone Star Democrats — “everyone in Texas is being ignored, because Texas just doesn’t matter to the presidential election,” said Lawrence Lessig, a Harvard University law professor who was a leading organizer of the legal effort.
The goal is a lower-court decision in one of the four states that can be appealed, providing a shot at the U.S. Supreme Court and a ruling that would force all 48 winner-take-all states to adopt a “fair” system, such as dividing electoral votes according to each candidate’s percentage of the popular vote.
“Everyone wants to believe their vote’s going to count, but under the winner-take-all approach, particularly when you are in a state that is predominantly of one party, your vote simply doesn’t count,” said David Boies, a prominent New York lawyer who led the national coalition of attorneys behind the lawsuits.
“It doesn’t make any difference if you go to the polls or not. That is corrosive of our democratic principles, and it leads to voter apathy,” said Boies, who is perhaps best known for his role as lead lawyer for Democratic presidential candidate Al Gore during the Florida vote recount in 2000.
Although complaints about the arcane Electoral College have long been part of presidential politics, the lawsuit strategy gained steam with the 2016 victory of Republican Donald Trump, who defeated Democrat Hillary Clinton with a 304-227 electoral vote despite his receiving 2.84 million fewer votes.
One other election since 1900 featured a candidate who lost the popular vote but was elected president — Texas Republican George W. Bush, whose 271-266 electoral vote victory came despite receiving about 540,000 fewer votes than Gore in 2000.
Lessig, however, cautioned against trying to determine if changing the system of counting electoral votes would have resulted in defeat for Trump or Bush because no candidate ran a national campaign in either election.
“It’s hard to model because nobody really knows how the presidential campaigns would have been different,” he said. “Because under the rules so far, no Democrat campaigns in Texas, no Republican campaigns in California (for the general election). Who knows how the voters would’ve responded and how the results would’ve been different.”
Instead, Boies said, planners carefully picked four states that are either Democratic “blue” or Republican “red” in the current electoral system to emphasize to voters that “whether they’re Republicans or Democrats, conservative or liberal, it’s important to have their votes counted.”
The states also are in four different circuit courts of appeal, providing four possible paths to the Supreme Court, Lessig said.
In Texas, Attorney General Ken Paxton will defend the state’s electoral-vote system from the lawsuit, which was filed in San Antonio federal court in late February and is still in the preliminary legal stages.
“We are confident in the lawfulness of the time-honored system Texas and 47 other states use to select the president,” Paxton spokesman Marc Rylander said.
The presidential candidate who receives the most ballot support gets all of Texas’ electoral votes, whether the candidate received 88 percent of the votes like Franklin D. Roosevelt did in 1932, or only 40.5 percent like George H.W. Bush in 1992’s three-way race against Democrat Bill Clinton and independent Ross Perot.
Either way, the Texas lawsuit argued, “the vote of each and every citizen voter is canceled … unless it was cast for the winning candidate.”
The lawsuit urges Senior U.S. District Judge David Ezra to declare that the state’s winner-take-all system is unconstitutional for denying many Texas citizens the right to an equal vote in the presidential election, such as the almost 3.88 million Texans who voted for Hillary Clinton in 2016.
The lawsuits in Texas and South Carolina go one step further, arguing that the winner-take-all system in both states violates the Voting Rights Act by discarding ballots cast by minority voters, who tend to support Democratic presidential candidates.
Black and Latino voters represent more than 40 percent of the Texas electorate, yet they have not had one electoral vote cast for their preferred candidate in the past four decades, said Luis Vera Jr., a lawyer for the League of United Latin American Citizens, which joined the Texas lawsuit as a plaintiff.
“Under Section 2 of the Voting Rights Act, a state cannot create a law that dilutes the voting strength of any African-American or language-speaking minority, and that’s what this does. It lessens their power,” Vera said.
In addition to LULAC, the Texas petition was filed on behalf of nine Democratic voters, including longtime Austin Pastor Joseph Parker Jr. and Sanford Levinson, a noted professor of constitutional law at the University of Texas.
The petitions filed in Texas and the other three states do not challenge the Electoral College, which was established by the U.S. Constitution and assigns electoral votes to each state based on the number of U.S. House members plus two senators. The Constitution also allows each state to determine how its electoral votes are distributed, and only Nebraska and Maine divide votes based on the statewide victor and the winner in each congressional district.
Texas has 38 electoral votes, a number that will rise after the results of the 2020 census are known. Only California, with 55 electoral votes, has more.
Yet despite the large prizes, both states receive little attention as presidential candidates are forced to concentrate their limited time and money on states that can flip between parties.
In 2016, there were 14 such battleground states that, despite having only 35 percent of the nation’s voters, received 95 percent of candidate appearances and 88 percent of campaign advertising in the general election, the lawsuits said.
In addition to concerns about voting rights, lawyers plan to argue that the winner-take-all approach has several notable negative consequences:
• Ignored states lose national influence. Lessig pointed to Trump’s January announcement that more offshore oil drilling will be allowed. California and Florida strongly protested, but only Florida was exempted from the policy.
“The difference: Florida is a swing state, and no way Donald Trump was going to make Florida angry,” Lessig said. “But California doesn’t matter in a presidential election.”
• Research shows that the federal government’s per capita spending is higher in battleground states. “The idea that we have a federal government that is more concerned about particular states simply by the way those states pick electors is crazy,” Lessig said.
• Apathy tends to rise in states that are traditionally ignored by candidates, leaving Texas among the bottom five states in voter turnout.
“Candidates don’t speak to the voters, don’t listen to the voters, don’t interact with the voters the way they would if each vote counted,” Boies said. “It breaks the connection between the voter and the political leader. I think that is corrosive of democracy.”
American-Statesman staff writer Chuck Lindell has been covering legal issues since 2005. He recently explored Attorney General Ken Paxton’s new role as a leading defender of President Donald Trump’s policies in courts across the nation. He also has reported on a broad new effort to undermine same-sex marriage via lawsuits filed in Texas and other states. Last year, he examined how the abortion war is being fought in the Legislature and federal courts, with judges blocking seven Texas abortion-related laws or regulations this decade.