Within hours of Hillary ClintonHillary Diane Rodham ClintonClinton lawyer's indictment reveals 'bag of tricks' Attorney charged in Durham investigation pleads not guilty Attorney indicted on charge of lying to FBI as part of Durham investigation MORE’s loss in the 2016 election, many outraged Americans pointed to the Electoral College as the culprit. But abolishing what is, after all, the only method the Constitution describes for electing presidents is not easy. Nullifying it, however, might be more achievable, and now David Boies has stepped forward with a strategy for achieving just that result.
Boies, who achieved nationwide prominence in 2000 for his unsuccessful effort in Bush v. Gore , filed suit on Feb. 21 in four states -— Massachusetts, South Carolina, California and Texas — seeking to force those states to re-write the laws they use to select their state presidential electors. Those are important laws, because the Constitution only requires that presidents be elected by “a Number of Electors” chosen in each state “equal to the whole number of Senators and Representatives to which the State may be entitled in Congress.”
State legislatures are given the exclusive right to decide how those electors are to be chosen. This is where Boies believes he has an opportunity to reverse the advantage President TrumpDonald TrumpCapitol fencing starts coming down after 'Justice for J6' rally Netanyahu suggests Biden fell asleep in meeting with Israeli PM Aides try to keep Biden away from unscripted events or long interviews, book claims MORE earned in the Electoral College in 2016.
Currently, all but two states mandate a “winner-take-all” rule for guiding how electors vote. In other words, based on whichever presidential candidate wins the popular vote within that state, all of the state’s electors are expected to vote for that candidate. Only Maine and Nebraska arrange matters differently: two of those states’ electoral votes are awarded to whomever wins the state’s popular vote, then the additional electoral votes to whomever wins in each of the states’ congressional districts.
This does not usually make for earth-shaking results in Maine and Nebraska. But it would in the places where Boies filed suit, and especially in Texas, and he has buttressed his complaint by arguing that the winner-take-all rule effectively cancels out the vote “of each and every citizen voter...unless it is cast for the winning candidate.”
In Texas, for instance, 3.8 million Texans voted for Clinton, but the winner-take-all rule directed all of Texas’ 38 Electors to deliver their votes for Trump. And since a large proportion of Clinton’s voters in Texas were black and Hispanic, Boies argues that the winner-take-all rule also violates the Fourteen Amendment’s guarantee of equal protection and “perpetuates racial discrimination in voting and the dilution of minority voting power.”
What Boies proposes as a substitute is buried in the last page of the suit: “a proportional method of distributing Electors...based on the number of votes each party’s candidate receives statewide.” Boies is somewhat coy about what is meant by a “proportional method.”
If we take it literally, then on a proportional basis, Clinton would have won the votes of exactly 15.56 Texas electors, and Trump 18.80. Applied to Pennsylvania, Clinton would have earned 9.49 electoral votes (instead of none) and Trump 9.63 instead of 20. Take all 50 states, and Clinton suddenly wins 292.20 electoral votes and Trump 247.96.
Except that this is not how the Constitution, and the elections it mandates, is supposed to work. First of all, the there is no requirement that the presidential election involve a popular vote in the first place. Indeed, over the history of the republic electors have been chosen by methods other than a popular vote in a number of states. As recently as 2000, the Florida legislature considered choosing the electors to resolve the Bush-Gore impasse.
Second, the Constitution created a federal system where the states choose separately; there is no constitutional “national vote” for president. Boies’s plan effectively reduces the electoral vote to a statistical reflection of the constitutionally irrelevant national popular vote, at which point it will be worth asking: Why bother having state electors at all? And after that, why bother with federalism?
But there’s a practical problem, too, and it’s buried in the decimal points. If the purpose of Boies’ suit is to ensure that all voters are not “disenfranchised” by the winner-take-all system, then he will have some explaining to do when the actual electoral voting takes place, since it is electors — and not mathematical abstractions —doing the voting in the Electoral College. Clinton’s 15.56 Texas electors will have to become either 15 or 16, and if the former, then .56 of Texas voters will have poofed into non-existence — and in Texas, since each of the state’s electoral votes speaks for 236,000 voters, over a hundred thousand pro-Clinton Texans would be as “disenfranchised” under Boies’ plan as under the winner-take-all system.
In Wisconsin (where each of the state’s 10 electoral votes represents 297,000 voters), the 4.72 “votes” eked-out by Clinton would have to become five electors, thus turning 412,000 non-Clinton voters into pro-Clinton voters. Which is exactly the metamorphosis Boies complains about with the winner-take-all system.
In the abstract, winner-take-all sounds “unfair.” But it has the benefit of giving states their due influence in our federal system of choosing national politicians, and most states are likely to prefer that influence to the exact niceties of representation — especially when they involve decimal points.
This suit is long on rhetoric about “fairness,” but short on offering any actual improvement to the Electoral College system. In fact, by ignoring the express constitutional mandate given to the state legislatures for appointing electors, it might be even worse.
Allen Guelzo, a historian and author, is a history professor at Gettysburg College.
James Hulme is an attorney based in Washington, D.C.