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Fifth Circuit Dismisses Challenge to Texas Winner-Take-All Voting

A line of five voters casting their ballots at their polling place, with red white and blue half circle banners above their heads.
By Laura Temme, Esq. on February 27, 2020 11:59 AM

"Winner-take-all" voting will remain in place in Texas, following a ruling by a Fifth Circuit panel that the state's electoral system does not unduly burden voters.

The electoral voting challenge, filed by the League of United Latin American Citizens and nine Texas voters, argued that the state's two-step voting system dilutes minority votes. The unanimous decision upheld a lower court's dismissal.

Forty-eight states and the District of Columbia employ a winner-take-all system for presidential elections, and such methods have been upheld by the Supreme Court. But, as we've seen several times over the last several decades, in some cases that means someone can lose the popular vote but win the election. This has led many to argue that the elector system violates the "one person, one vote" principle rooted in the Equal Protection Clause.

Constitutional Basis for Two-Stage Voting

The text of the Constitution establishes two stages for presidential elections. First, states are required to select Electors "in such Manner as the Legislature thereof may direct." Then, the Electors cast their votes.

In winner-take-all (WTA) states, the political party with the most votes gets all the electors. Interestingly, the concept took off after Thomas Jefferson convinced the Virginia legislature to adopt WTA. Why did Jefferson care? Because he lost the 1796 presidential election after two states split their electoral votes. Now, it seems, public opinion has swung in the opposite direction - with many voters wanting to see their states' electoral votes allocated proportionally to the popular vote.

Voter Motivation vs. Ability

It's easy to see why the Electoral College can frustrate voters. A person who casts their vote for one candidate only to see all of the state's electors go to another might feel they may as well not vote at all. But, in its 11-page opinion, the panel reasoned that while a system that burdens a person's ability to vote violates the Constitution - one that diminishes voter motivation does not.

"The frustration of losing," the court wrote, "does not violate the Constitution."

The challenge in Texas is one of four by LULAC, strategically filed in two typically "blue states" and two typically "red" states. A First Circuit panel heard oral arguments on one of these cases in September, where the Equal Protection argument gained about as much traction as we've seen in Texas.

Whether the winner-take-all system is the best method of allocating electors is up for debate. But, given the way these cases are going in the courts, opponents of WTA may be better off advocating state legislatures instead.

Related Resources:

Challenge to Massachusetts "Winner-Take-All" Voting Met With Skepticism (FindLaw's First Circuit)

We Need a Constitutional Right to Vote in Presidential Elections (FindLaw's Legal Commentary Archive)

Ohio Argues Voters Incarcerated Right Before Election Day Subject to Different Deadlines (FindLaw's Sixth Circuit)

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