LEAGUE OF WOMEN VOTERS®
OF PENNSYLVANIA
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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
1
2
3
U.S. Const., Art. II, § 1.
Kimberling, William, The Electoral College, (1992) (can be found on the FEC’s web site)
Id.
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)
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
6
7
8
9
10
11
12
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, 30-34 (1968).
Bush v. Gore, 531 U.S. 98, 104 (2000).
Id, at 104-105.
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
13
14
15
16
17
Bush, 531 U.S. at 105 (quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964)).
Gray, 372 U.S. at 379-80; Reynolds v. Sims, 377 U.S. 533, 560 (1964).
Reynolds, 377 U.S. at 562.
Id.
Id. at 563.
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.
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 104-105.