Plaintiffs argue for end to winner-take-all elections

LOS ANGELES -- A U.S. judge heard arguments Tuesday in one of four cases contesting how electoral votes are allocated in presidential elections.

Boies Schiller Flexner LLP is leading a nationwide effort to upend longstanding procedure that designates all electoral votes to the winner of the state's popular vote in presidential elections, a method more commonly known as winner-take-all. Complaints have been filed in Texas, South Carolina, Massachusetts and California.

The complaint filed in California contends that this method, used in 48 states and the District of Columbia, is unconstitutional because it results in the discarding of votes for the losing candidate in that state. Rodriguez et al. v. Brown et al., 2:18-cv-01422 (C.D. Cal., filed Feb. 21, 2018).

"The Electoral College now is essentially automatons, bound to do whatever the popular vote in the state dictates," lead attorney David Boies said after the hearing. "It's become a two-step process and the Supreme Court has been clear that you can't in that process discard the votes of the people in the first step. It's not about whether they had a chance to vote in the first step, it's about whether or not those votes count in the second step."

In response to the state's motion to dismiss, Boies told the court the evolution of case law and the Electoral College make the current iteration of electoral voting unconstitutional. In walking through that evolution, Boies cited Bush v. Gore, 531 U.S. 98 (2000), a case, he chortled, he was pretty familiar with.

In Bush v. Gore, the U.S. Supreme Court stopped a recount of votes cast in Florida in the 2000 presidential election, handing a victory to President George W. Bush. Boies represented Vice President Al Gore.

In his arguments Tuesday, Boies also cited Gill v. Whitford, 2018 DJDAR 5768 (U.S. 2018), which forced a critical evolution in the First Amendment. The case, decided last month, involved the constitutionality of partisan gerrymandering, addressed issues of equal protection in the context of voting and the "dilution" of cast votes.

"It's an evolution of the jurisprudence protecting the most basic right we have in a democracy, which is the right not only to vote and have your vote counted but not have your vote diluted, cast in such a way that it doesn't actually have an effect, which is what the claim here is," Boies told the court.

Boies argued that the millions of votes cast by Republicans in California have essentially been diluted to zero, as none have translated into electoral votes for president in the last seven elections.

Deputy Attorney General Patty Li, representing the state, focused on the state's equal treatment of votes during tabulation. Because votes aren't weighted one way or another, there is no violation of equal protection, Li said.

"There is no constitutional problem when a vote for a losing candidate does not then result in representation for those voters who preferred the losing candidate as long as those votes are accurately tabulated in determining the winner of the election," she told the court.

Li also addressed the so-called two-step electoral process plaintiffs argued diluted their votes.

"The legal theories here are simply flawed because they assume there is a national election for president," she said. "The Constitution sets forth an alternative procedure, one that has been in place for hundreds of years, one that empowers the states to choose the manner of how they will select their presidential electors, gives the states the discretion to award all of those electors to one candidate if the state so chooses to further the state's interest in having its political interests expressed as strongly as possible in the electoral college."

Judge Consuelo B. Marshall of the Central District took the arguments under submission and will issue a written ruling.

Boies is to appear for a hearing in Massachusetts on Aug. 9 for an identical suit filed by former Massachusetts Gov. William Weld. Plaintiffs in the California suit include Assemblyman Rocky Chavez, R-Oceanside, and several Republican voters. The suits are being brought by a coalition of nationwide firms including Hausfeld, Alston & Bird LLP, Steptoe & Johnson LLP and Zelle LLP.