CONSTITUTIONAL CHALLENGES TO PROPOSED CHANGES IN THE ELECTORAL COLLEGE

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1 LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA 226 Forster Street, Harrisburg, PA Making Democracy Work - Grassroots leadership since 1920 CONSTITUTIONAL CHALLENGES TO PROPOSED CHANGES IN THE ELECTORAL COLLEGE I. BACKGROUND Article II, 1 of the Constitution provides in pertinent part that [e]ach 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. 1 Article II, 1 was amended by the adoption of the Twelfth Amendment, but the amendments have no bearing on the issue of the selection of Electors. There is no dispute that Article II, 1 delegates to State legislatures the power to determine the manner in which the Electors are to be selected. Historically, this has lead to a variety of methods. Some State legislatures chose to select the Electors themselves, while others decided on a direct popular vote for Electors either by Congressional district or at large. 2 While the States originally experimented with the method for choosing Electors, by 1836 all of the States, with the exception of South Carolina, had adopted the method of choosing their Electors by a direct statewide popular vote. 3 Today, all of the States, with the exception of Maine and Nebraska, rely on a direct statewide popular vote, where the winner takes all, to select the States slate of Electors. Both Maine and Nebraska have adopted a system where two of the Electors are selected by state wide vote (representing the two Senate seats), and the remainder by the popular vote in each Congressional district. Nebraska is currently in the process of going U.S. Const., Art. II, 1. Kimberling, William, The Electoral College, (1992) (can be found on the FEC s web site) Id.

2 back to an at large system where the winner takes all because the Republican controlled Legislature has recognized that the current method of voting by Congressional district divides Nebraskans based upon where they happen to live. 4 As it is currently constituted, the Electoral College tends to over represent people in rural States. By way of example, in 1988 the seven least populous jurisdictions, Alaska, Delaware, the District of Columbia, North Dakota, South Dakota, Vermont and Wyoming, had a combined voting age population of 3,119,000 and 21 combined electoral votes. On the other hand, the State of Florida in 1988 had a voting age population of 9,614,000 persons and 21 electoral votes, which means that each Floridian s potential vote... carried about one third the weight of a potential vote in the other States listed. 5 This problem of vote dilution is only exacerbated by a system like Nebraska s that selects its Electors by congressional district; indeed, that is the very reason that Nebraska is seeking to eliminate its current method of selection and return to the at large, winner take all method currently employed by 48 of the 50 States. Despite the inequalities inherent in the Electoral College generally, and in the Nebraska plan more specifically, the Nebraska method for selecting Electors is precisely the plan that the Republicans are intending to impose on Pennsylvania. For the following reasons, such a plan would raise serious Constitutional issues. II. CONSTITUTIONAL ISSUES A. Introduction The Supreme Court has recognized that the only weighing of votes permitted by the Constitution concerns the election of Senators and use of the Electoral College to elect the 4 Levy, Marc, Pa., Neb. Republicans want electoral vote changes, Philly.com (quoting Mark Fahleson, State GOP Chairman). 5 Kimberling, William, The Electoral College, (1992) (can be found on the FEC s web site)

3 president. 6 While the Supreme Court has recognized that Article II, 1 and the Twelfth Amendment permit some vote dilution, both of these provisions were adopted before the adoption of the Civil War Amendments. 7 It is now a well settled principle of Constitutional law that the prohibitions of the Civil War Amendments are directed to the States, and they are to a degree restrictions of State power. 8 Accordingly, in exercising her rights, a State cannot disregard the limitations which the Federal Constitution has applied to her power. 9 This well established principle applies with equal force to a States power under Article II, 1 and the Twelfth Amendment. Indeed, the Supreme Court has already held that the Equal Protection Clause limits a State s power under Article II, 1 and precludes a State from discriminating in the selection of Electors. 10 More recently, the Supreme Court has held that [w]hen a state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and equal dignity owed to each voter. 11 As the Court held in Bush v. Gore: The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not by later arbitrary and disparate treatment, value one person s vote over that of another. 12 It goes without saying, then, that while Article II, 1 delegates to States the power to chose the method of selecting Electors, that power is limited by the Fourteenth Amendment, and the State cannot choose a method of selection that violates the letter and spirit of that Gray v. Sanders, 372 U.S. 368, 377, 381 (1963). Thirteenth, Fourteenth and Fifteenth Amendments. Ex Parte Virginia, 100 U.S. 339, 346 (1879). Id. Williams v. Rhodes, 393 U.S. 23, (1968). Bush v. Gore, 531 U.S. 98, 104 (2000). Id, at

4 Amendment. The plan proposed by the Republicans to change the method of selection to one based on Congressional districts does just that. B. The plan to select Electors by Congressional districts impermissibly dilutes the weight of urban voters in violation of the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court has consistently recognized that the right of suffrage can be denied by a debasement or dilution of the weight of a citizen s vote just as effectively as by wholly prohibiting the free exercise of the franchise. 13 Starting with Gray v. Sanders, the Court has recognized that the Equal Protection Clause precludes a State from classifying voters on the basis of where they live. 14 As the Court recognized in Reynolds v. Sims, elected officials are elected by voters, not farms or cities or economic interests. 15 A voter s fundamental right to cast a meaningful vote is therefore diluted or infringed where the votes of citizens in one part of the State are given greater weight than the votes of citizens in another part of the State. The Court in Reynolds reasoned that [i]t would appear extraordinary to suggest that a State could be constitutionally permitted to enact a law providing that certain of the State s voters could vote two, five, or 10 times for their legislative representatives, while voters living elsewhere could vote only once. 16 Accordingly, the Court held that [w]eighting the votes of citizens differently, by any method or means, merely because of where they happen to reside violates the Fourteenth Amendments Equal Protection Clause. 17 In the instant case, the proposed plan to change the Electoral College to a system where the Electoral vote would go to the winner of each Congressional district would substantially increase the weight of the vote of the voters in the rural, less populated areas of Pennsylvania in Bush, 531 U.S. at 105 (quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964)). Gray, 372 U.S. at ; Reynolds v. Sims, 377 U.S. 533, 560 (1964). Reynolds, 377 U.S. at 562. Id. Id. at 563.

5 relation to the votes of the voters in the more densely populated urban areas. This is exactly the situation confronted by the Court in Reynolds, and would cause the dilution, and hence infringement of the right to vote of citizens in the more densely populated urban areas. As the court held in Reynolds and reaffirmed in Bush, this type of classification based on geographic area is unconstitutional when it leads to the dilution of the vote, as it would if the Electors were selected by Congressional district. C. The plan to select Electors by Congressional districts is arbitrary and capricious and violates both the Equal Protection Clause and Due Process Clause. Senate Majority Leader Dominic Pileggi has publicly stated that the purpose behind the proposed changes to the way Electors are selected in Pennsylvania is to more closely align the electoral college vote with popular vote in the state for president. 18 The problem with the plan is that it can t achieve its stated goal. Two of the Electoral votes will always go to the winner in the State, because they represent the Senators, who are elected at large. Moreover, if there is an extremely close election, it is conceivable that the ultimate winner may win the majority, or even all of the Congressional districts, but only win the popular vote by a very slim margin (say less than one percent). Under these circumstances, the Electoral votes would not come close to approximating the popular vote. The stated reasons for the change are spurious at best, and at root appear to be based on a policy of favoring rural voters over urban voters in an effort to ensure that the Republicans win at least some Electoral votes in a State where the Democratic voters outnumber the Republican voters 4 to 3. The Supreme Court has held that such discrimination reflects no policy, but simply arbitrary and capricious action. 19 As the Court 18 Levy, Marc, Pa., Neb. Republicans want electoral vote changes, Philly.com (quoting Mark Fahleson, State GOP Chairman). 19 Reynolds, 377 U.S. at 557.

6 held in Bush, the State may not, by later arbitrary and disparate treatment, value one person s vote over that of another. 20 In the instant case, the means chosen by the Republicans- selection by Congressional district, does not serve the stated goal of more closely align[ing] the electoral college vote with popular vote in the state for president and therefore in wholly arbitrary. Moreover, the stated goal itself is suspect. There is a reason that 48 out of the 50 States have gone to an at large selection process where the winner takes all. In our representative form of government, a candidate who receives 49% of the vote to his or her opponents 51% of the vote does not win a 49% share of the seat he or she was running for. The person who wins the majority of the votes takes the whole seat. By that same logic, the candidate who receives the majority of a States vote for president in the general election should be accorded all of that States electoral vote. Accordingly, the simple reason that the majority of the States rely upon a winner take all system for selecting Electors is because it is the fairest method, and it is consistent with the way we elect government officials in this country. As discussed above, the system being proposed by the Republicans arbitrarily favors rural voters over urban voters. This type of arbitrary conduct infringing on a person s right to vote is expressly prohibited by the Fourteenth Amendment s Equal Protection and Due Process Clauses. 20 Bush, 531 U.S. at