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Wed Feb 21, 2018, 01:01 PM

Breaking: Legal Team Led by David Boies and LULAC Files Lawsuits Challenging Winner-Take-All Approa

Source: Election Law Blog

A coalition of law firms led by David Boies of Boies Schiller Flexner LLP, and The League of United Latin American Citizens (LULAC) today announced the filing of four landmark lawsuits challenging the winner-take-all method states use to allocate their Electoral College votes. By magnifying the impact of some votes and disregarding others, the winner-take-all system is not only undemocratic, but it also violates the Constitutional rights of free association, political expression, and equal protection under the law. These suits aim to restore those rights nationwide.

The non-partisan effort will draw on the resources of several law firms in advancing legal challenges in two states that are solidly blue, Massachusetts and California, and two others that are solidly red, South Carolina and Texas. All four suits are designed to uphold the Constitution’s guarantee that every vote—whether for a Republican, a Democrat, or third-party candidate—will be treated equally.

Read more: http://electionlawblog.org/?p=97652

48 replies, 5618 views

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Reply Breaking: Legal Team Led by David Boies and LULAC Files Lawsuits Challenging Winner-Take-All Approa (Original post)
Gothmog Feb 2018 OP
Fullduplexxx Feb 2018 #1
TheBlackAdder Feb 2018 #31
jalan48 Feb 2018 #2
Demit Feb 2018 #27
jalan48 Feb 2018 #28
unblock Feb 2018 #3
Va Lefty Feb 2018 #6
Phoenix61 Feb 2018 #7
LeftInTX Feb 2018 #9
gopiscrap Feb 2018 #21
bigbrother05 Feb 2018 #32
unblock Feb 2018 #10
LeftInTX Feb 2018 #25
tinrobot Feb 2018 #16
unblock Feb 2018 #23
muriel_volestrangler Feb 2018 #42
unblock Feb 2018 #44
Fred Sanders Feb 2018 #17
unblock Feb 2018 #19
genxlib Feb 2018 #4
unblock Feb 2018 #8
LeftInTX Feb 2018 #12
unblock Feb 2018 #13
Pope George Ringo II Feb 2018 #29
genxlib Feb 2018 #20
Squinch Feb 2018 #5
unblock Feb 2018 #11
lagomorph777 Feb 2018 #36
brooklynite Feb 2018 #14
shanny Feb 2018 #22
lagomorph777 Feb 2018 #37
shanny Feb 2018 #38
lagomorph777 Feb 2018 #39
shanny Feb 2018 #41
lagomorph777 Feb 2018 #45
Yupster Feb 2018 #48
Yupster Feb 2018 #47
spicysista Feb 2018 #15
Mme. Defarge Feb 2018 #18
flyingfysh Feb 2018 #24
Doremus Feb 2018 #26
getagrip_already Feb 2018 #30
tomp Feb 2018 #33
MurrayDelph Feb 2018 #34
summer_in_TX Feb 2018 #35
Gothmog Feb 2018 #40
Hermit-The-Prog Feb 2018 #43
Gothmog Feb 2018 #46

Response to Gothmog (Original post)

Wed Feb 21, 2018, 01:05 PM

1. Kr

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Response to Fullduplexxx (Reply #1)

Wed Feb 21, 2018, 02:59 PM

31. Why stop there? While we're at it, let's change us to a parlimentary system of government. :-

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Response to Gothmog (Original post)

Wed Feb 21, 2018, 01:07 PM

2. Will our two major political parties support this?

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Response to jalan48 (Reply #2)

Wed Feb 21, 2018, 02:43 PM

27. What does have promising support is the National Popular Vote Interstate Compact.

 

The NPVIC is a proposed end-around to amending the Constitution to abolish the Electoral College. It's an agreement among a group of states and DC to award all their electoral votes to whichever presidential candidate wins the overall popular vote. It's been adopted by 10 states and DC (representing a total 165 EC votes).

It needs 105 EC votes more to reach the magic EC number 270. As of now, legislation is pending in 12 other states (representing a total 166 EC votes).

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Response to Demit (Reply #27)

Wed Feb 21, 2018, 02:44 PM

28. Sounds good to me. We don't need anymore popular vote losses.

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Response to Gothmog (Original post)

Wed Feb 21, 2018, 01:10 PM

3. imho, this is going nowhere.

article 1 section 2:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.


there is zero basis for any constitutional argument for equal treatment within the state because everyone within the state gets equal say. not only is there no reason to assume the framers wanted proportional allocation of electors, article 1 section 2 explicitly gives states the leeway not to.


moreover, there is no good basis for the argument for equal treatment across state lines because the *entire purpose* of the electoral college system, by design, was to be *unequal* across state lines.


not a lawyer, but imho, this is a waste of times, at least legally.
politically, it may serve a purpose, perhaps, but constitutionally, this is going nowhere.

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Response to unblock (Reply #3)

Wed Feb 21, 2018, 01:14 PM

6. Agree. The courts aren't going to touch this.

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Response to unblock (Reply #3)

Wed Feb 21, 2018, 01:16 PM

7. Nevada and Maine split their votes nt

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Response to Phoenix61 (Reply #7)

Wed Feb 21, 2018, 01:23 PM

9. I think it's Nebraska and Maine

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Response to LeftInTX (Reply #9)

Wed Feb 21, 2018, 02:20 PM

21. you are correct

winner gets the first two and then each other electoral vote is awarded to the top vote getter in each Congressional District this is not a good idea for us as most Democratic votes are amassed in fairly tight urban areas

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Response to gopiscrap (Reply #21)

Wed Feb 21, 2018, 03:35 PM

32. Agree, with gerrymandering this could enhance the GOP advantage

If there was a method to split the Senate votes, i.e. +60% to get both, it might balance out. Would like to see how elections since Carter would go with this scheme.

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Response to Phoenix61 (Reply #7)

Wed Feb 21, 2018, 01:24 PM

10. nebraska and maine, yes.

states are free to do this if they choose. but the constitution doesn't force them to do so.

perhaps the point of this case is not to win, but simply to publicize the problems of the winner-take-all approach and to convince the country, state by state, to voluntarily switch.

but that really messes things up if, say, the blue states switch but the red states don't....

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Response to unblock (Reply #10)

Wed Feb 21, 2018, 02:35 PM

25. I believe this is in federal court, so it can challenge the constitutionality

of the current system for all 50 states.

As you stated above...article 1 section 2:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.


The plaintiffs are arguing that article 1 section 2 violates the 14th Amendment and they want a mandate that require all states to allocate electoral votes proportionality.

I don't think it will get very far, but it may start a discussion.

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Response to unblock (Reply #3)

Wed Feb 21, 2018, 01:49 PM

16. Equal representation also must happen within a state.

moreover, there is no good basis for the argument for equal treatment across state lines because the *entire purpose* of the electoral college system, by design, was to be *unequal* across state lines.


But Republican voters in blue states and Democratic voters in red states typically get zero electors, even when they get 48-49% of the vote. How is that equal? Equality must also happen within a state.

I think there is merit to this case. It may not be explicitly spelled out in the Constitution, but equality has become law through voting rights legislation and past Supreme Court decisions.

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Response to tinrobot (Reply #16)

Wed Feb 21, 2018, 02:32 PM

23. equality under the law doesn't demand proportional results.

every eligible voter within a state has equal say in who wins the entire slate.

every other statewide election is winner-take-all. there's no proportional sharing of the governorship or senate seats.

note, also, that the state can even choose not to have an election of presidential electors entirely (though, granted, *if* they decide to have an election they have to abide by certain rules). but they could choose to appoint a slate for entirely one candidate in complete disregard for the will of the people in the state. that would also be perfectly constitutional. another argument for just amending the constitution to permit direct popular election of the president across the country.

if it got the the supreme court, no doubt some justice would ask, if the founders had wanted proportional allocation of electors within the state, they could have and would have specified that. but they didn't. the states wanted that control, and they did not want to be required to let the people decide.

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Response to unblock (Reply #23)

Wed Feb 21, 2018, 07:24 PM

42. But governorship and senate seats can't be shared, so that's irrelevant

Federal House seats are, however, districted so that each represents the same number of people. And there are signs that courts are getting fed up with gerrymandered districts that distort party representation compared to the votes each gets. An argument that Representatives should reflect the proportion of votes in a state might be extended to 'electoral college members should reflect the proportion of votes'.

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Response to muriel_volestrangler (Reply #42)

Wed Feb 21, 2018, 07:39 PM

44. well i'm certainly liking what's going on in pennsylvania regarding gerrymandered districts

and i'll be quite happy to see districts drawn in a way that doesn't give partisan advantage or that discriminates.

however, i don't think most of the arguments translate to requiring proportional allocation of electors. gerrymandered districts were drawn specifically to reduce the influence of the other party; or, in some cases, black people specifically.

winner-take-all has been with us since the first presidential election. it's rather difficult to say that the point of it is to reduce the influence of any particular group.

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Response to unblock (Reply #3)

Wed Feb 21, 2018, 01:55 PM

17. The is the originalist approach. Times change. Like with firearms from 200 years ago and today.

New rules for new times.

We update computers to address new threats and incorporate better thinking, why not constitutions?

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Response to Fred Sanders (Reply #17)

Wed Feb 21, 2018, 02:06 PM

19. well if you're talking about *amending* the constitution, then sure.

that can certainly be done. but if we're amending the constitution, why not just go straight to popular vote across the entire country. i would certainly support that.

this case is trying to advance an argument that winner-take-all is unconstitutional based on the existing constitution. i think there is no real basis for that argument.

and no, it's not the originalist argument. there is no real way to read the constitution and come to the conclusion that winner-take-all is unconstitutional.

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Response to Gothmog (Original post)

Wed Feb 21, 2018, 01:13 PM

4. This has promise

But it should be every state.

I actually think it will be the closest we will ever come to making the electoral college work. If distributed by a ratio matching the vote totals within a state, it would much more closely align with the popular vote and make upside down victories nearly impossible.

I still think the popular vote would be better but it is an uphill battle for a constitutional change that will never happen.

This is not as good but far more likely

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Response to genxlib (Reply #4)

Wed Feb 21, 2018, 01:21 PM

8. i think it would be bad for the democratic party.

we would lose a lot of californian and new york electoral votes, for example.

republicans would lose a lot of texas votes, but we're getting close to flipping texas anyway, and in fact this would reduce that prize.

much depends on if electoral votes were allocated proportionally, or if they were done by congressional district plus two at large (the way maine and nebraska already allocate theirs). if it's by congressional district, then gerrymandering messes with everything.

either way, small states still have disproportionate influence.

one plus would be that it would shift campaigning away from being so heavily concentrated in a small number of "battleground states".

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Response to unblock (Reply #8)

Wed Feb 21, 2018, 01:27 PM

12. We're not close to getting Texas flipped.

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Response to LeftInTX (Reply #12)

Wed Feb 21, 2018, 01:29 PM

13. well not this week.

i'm thinking we have a decent shot in 2024.

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Response to unblock (Reply #13)

Wed Feb 21, 2018, 02:52 PM

29. I'll quibble over years and aim for 2028

But in substance I agree with you.

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Response to unblock (Reply #8)

Wed Feb 21, 2018, 02:08 PM

20. No question

It would be bad to break up California and New York. But it would be offset by breaking up all the others as well. That's why it has to be all of them.

I agree it should be directly proportional to popular vote and not based on the congressional districts.

I once did a spreadsheet analysis and doing it proportional to the popular vote resulted in Gore and Clinton wins.

It's not perfect but I would take a system like that over what we have.

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Response to Gothmog (Original post)

Wed Feb 21, 2018, 01:14 PM

5. Wow. Godspeed to them!

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Response to Squinch (Reply #5)

Wed Feb 21, 2018, 01:25 PM

11. i hope they fail.

i fear this may be a case of "the system we have sucks, let's see if we can make it worse."

the problem is not so much the winner-take-all strategy as the way the electoral college itself is set up.

popular vote across the nation would be better.

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Response to Squinch (Reply #5)

Wed Feb 21, 2018, 04:18 PM

36. +1

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Response to Gothmog (Original post)

Wed Feb 21, 2018, 01:33 PM

14. Sorry - they haven't got a prayer...

The US Constitution simply says that States will determine the allocation of the Electoral Votes. It says NOTHING about the rights of citizens to vote for President, nor that those votes be treated proportionally.

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Response to brooklynite (Reply #14)

Wed Feb 21, 2018, 02:29 PM

22. True as far as it goes

 

but SCOTUS decided several cases in the early 60s based on the Equal Protection clause in the 14th Amendment and established the standard of "one man one vote".

So, yeah, they do have a prayer.

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Response to shanny (Reply #22)

Wed Feb 21, 2018, 04:19 PM

37. "Equal Protection" was falsely cited in Bush v. Gore; now it's time to right that.

If ever there was a case for impeaching Justices, that was one.

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Response to lagomorph777 (Reply #37)

Wed Feb 21, 2018, 04:41 PM

38. I agree.

 

We need no further "tell" than that that decision was supposed to stand alone, and set no precedent. In short it was made-up bullshit for the sole purpose of installing the preznit they wanted.

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Response to shanny (Reply #38)

Wed Feb 21, 2018, 04:44 PM

39. "Set no precedent."

How did they get away with that???

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Response to lagomorph777 (Reply #39)

Wed Feb 21, 2018, 05:21 PM

41. Good question.

 

They asserted it in the decision and they got away with it because there is no higher review.

Fun fact, Justices are exempt from the ethical rules that apply to lower court judges. Just another set of rules / standards--like the ones the trumpettes are ignoring--that will need to be codified into law ASAP.

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Response to shanny (Reply #41)

Thu Feb 22, 2018, 09:32 AM

45. So the Supremes are above the law.

You are correct; we need to fix that pronto.

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Response to lagomorph777 (Reply #45)

Thu Feb 22, 2018, 08:35 PM

48. The Supremes basically are above the law

They can rule that the 15th Amendment giving A-A males the right to vote means everyone has to wear red socks to work each Tuesday.

It doesn't have to make any sense. They can interpret whatever they want.

The only remedy is impeachment.

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Response to brooklynite (Reply #14)

Thu Feb 22, 2018, 08:24 PM

47. There doesn't even have to be a vote for president

The state legislature could decide to just name electors on its own. For a long time that's how some states did it.

South Carolina didn't have its first vote for president until 1868. It was likely not an honest vote as Ulysses Grant won the state.

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Response to Gothmog (Original post)

Wed Feb 21, 2018, 01:46 PM

15. Here's to hope.....

I don't feel that this is going anywhere. However, we need to be more like the "pro-life" crowd. They never give up! They just keep chipping away at our rights....no matter the number of setbacks. We should be more determined in fighting for our causes as well. Maybe, this will give life to the conversation that started after Bush vs Gore. There's nothing to be gained by giving up!

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Response to Gothmog (Original post)

Wed Feb 21, 2018, 01:59 PM

18. I have long wondered if

states should be able to sue other states that are unable or unwilling to demonstrate and assure the integrity of their voting systems, thereby disenfranchising voters in states that can.

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Response to Gothmog (Original post)

Wed Feb 21, 2018, 02:33 PM

24. there is a danger here

If this is adopted by the blue states, but not by the red states, then Republicans will have a solid lock on the White House forever. Do we really want that?

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Response to Gothmog (Original post)

Wed Feb 21, 2018, 02:37 PM

26. David Boies of Bush v Gore fame?

An intelligent and compassionate man. I hope he's successful.

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Response to Gothmog (Original post)

Wed Feb 21, 2018, 02:57 PM

30. this basically throws it to the house district maps

And those definitely don't favor the dems. gerrymandering would have an outsized impact. You would still be awarding winner takes all, but at the district level.

Unless they are arguing the popular vote should allocate the seats. It's hard to tell from the brief write up.

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Response to Gothmog (Original post)

Wed Feb 21, 2018, 03:41 PM

33. if you like this idea...

 

...better hope Boies does better than he did in Bush v Gore.

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Response to Gothmog (Original post)

Wed Feb 21, 2018, 03:56 PM

34. My dream, which I've posted here before,

is to see a double-proportional method of assigning Electoral College votes.

Pulling numbers out of my butt for example purposes:

Let's say we allocate 10,000 Electoral College Votes nation-wide.

If a state (let's say California) has 15% of the national registered voters, they would get 15% of the national total of electorates, or 1,500 Electoral College votes.

If this example-California voted for the Democratic candidate with 66% of their voters, the Democratic candidate would receive 66% of that state's electorates, or 990 Electoral College votes, with the remaining being distributed proportionally among the other candidates.

The purpose of the double-proportion rather than straight national totals is to insure that no state (let's say, Florida, or Ohio, or Kentucky) cannot provide more votes than there are voters. They can affect their state, but no one else's.

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Response to Gothmog (Original post)

Wed Feb 21, 2018, 04:01 PM

35. "but we're getting close to flipping texas anyway"

I have to agree with LeftinTexas. No matter how much energy there is right now on the blue side here, I'm pessimistic. For one thing, the level of donating to Democratic candidates here has been one-tenth of that of Republicans, up until now, according to reporting I heard this week on The Texas Standard.

Because we've been out of power so long and haven't won a statewide race in about two decades, even with the undeniable energy and more candidates than we've had in years, too many Dems are planning to rely on crossing over to vote in the Republican primary I fear. Early voting started yesterday, and I saw a post on Twitter from someone who did that.

When Dems cross over, the numbers of potential Dem voters look smaller than they really are, and when the next opportunity occurs to recruit candidates they're discouraged. It's a vicious cycle.

My plea would be that we all vote in our primary, no matter how outnumbered we are and how few choices we have in our own primary, wherever we live in Texas. And maybe, just maybe, despite being badly outspent, we will win several of these races.

I'm praying the Supreme Court ruling on gerrymandering will be one that will help us save this democracy.

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Response to Gothmog (Original post)

Wed Feb 21, 2018, 05:17 PM

40. From Prof Hasen

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Response to Gothmog (Original post)

Wed Feb 21, 2018, 07:29 PM

43. it's david boies

Maybe he's on the up-and-up; maybe not. He has a checkered history.

Represented SCO in their idiot lawsuits against IBM, Autozone, Daimler-Chrysler, and everybody.

Represented Oracle against Google, trying to copyright APIs.
Benchslapped by Judge Alsup:
http://www.groklaw.net/articlebasic.php?story=20121127123047829

Threatened journalists over stories based on Sony's leaked emails.
https://www.hollywoodreporter.com/news/sony-attorney-david-boies-threatens-757537

"Theranos sent David Boies and a team of lawyers to The Wall Street Journal to try to stop its bombshell story"
http://www.businessinsider.com/theranos-lawyers-vanity-fair-2016-5

Harvey Weinstein’s Army of Spies
The film executive hired private investigators, including ex-Mossad agents, to track actresses and journalists.
https://www.newyorker.com/news/news-desk/harvey-weinsteins-army-of-spies

In some cases, the investigative effort was run through Weinstein’s lawyers, including David Boies, a celebrated attorney who represented Al Gore in the 2000 Presidential-election dispute and argued for marriage equality before the U.S. Supreme Court. Boies personally signed the contract directing Black Cube to attempt to uncover information that would stop the publication of a Times story about Weinstein’s abuses, while his firm was also representing the Times, including in a libel case.



"Report Details Weinstein’s Covert Attempt to Halt Publication of Accusations"
https://www.nytimes.com/2017/11/07/us/harvey-weinstein-new-yorker.html
NYT fired him after the above.

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Response to Gothmog (Original post)

Thu Feb 22, 2018, 02:34 PM

46. Texas: In lawsuit, activists say Texas winner-take-all approach to the Electoral College is discri

Texas: In lawsuit, activists say Texas’ winner-take-all approach to the Electoral College is discriminatory https://thevotingnews.com/winner-take-all-electoral-practice-faces-voter-rights-challenge-bloomberg/

Saying Texas’ current practice is discriminatory, a group of Hispanic activists and lawyers has sued the state in hopes of blocking it from awarding all of its Electoral College votes to one candidate during presidential elections. The lawsuit filed in federal court Wednesday calls on Texas to treat voters “in an equal manner” by abolishing that “winner-take-all” approach, which all but two states use. The suit, filed by the League of United Latin American Citizens and a coalition of Texas lawyers, says that approach violates the U.S. Constitution and the 1965 Voting Rights Act. It’s just one of many pending voting rights lawsuits arguing that Texas, which regularly votes Republican, has illegally discriminated against voters of color.

Similar Electoral College lawsuits were also filed Wednesday in Republican-dominated South Carolina and Democratic-leaning Massachusetts and California. The South Carolina suit also alleges a Voting Rights Act violation.

At the suit’s core is the doctrine of “one person, one vote,” rooted in the 14th Amendment. The plaintiffs argue that the winner-take-all system is unconstitutional because Texans who favor losing candidates “effectively had their votes cancelled,” while voters who favor winning candidates see their influence “unconstitutionally [magnified].” The suit also alleges that winner-take-all violates the First Amendment.

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