# The Electoral College vs the Equal Protection Clause **URL:** \ **Category:** Politics & Elections\ **Created:** [December 6, 2016, 10:38pm UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060 "2016-12-06T22:38:36Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![davidm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/davidm/32/225_2.png) [@davidm](https://boards.straightdope.com/u/davidm)\ **Post date:** [December 6, 2016, 10:38pm UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/1 "2016-12-06T22:38:36Z")
I ran into an interesting argument online (see the link below). IANAL, so I’m not sure how valid it is. Basically, as I understand it, the argument is this: [ul] [li]The Electoral College is constitutional, obviously.[/li][li]The Constitution gives the states the right to choose electors in whatever manner the states’ legislatures choose.[/li][li]But, if the states choose to have electors chosen by popular vote, that process falls under other constitutional protections. One of those being the equal protection clause.[/li][li]The winner take all method of choosing electors, which is used by nearly all of the states, violates the equal protection clause.[/li][/ul]I have no idea if the last two points have any validity. Obviously this argument is being put forward by people trying to prevent the election of Trump. I’m not so sure that it would work even if the courts do accept the arguments. State legislatures could react by choosing their electors in the statehouse, removing their susceptibility to the equal protection clause. I’m curious about what some of the lawyers on here think of this. > **[The Equal Protection argument against “winner take all” in the Electoral College](https://medium.com/equal-citizens/the-equal-protection-argument-against-winner-take-all-in-the-electoral-college-b09e8a49d777)** > > In 2000, Republican lawyers, desperately seeking a way to stop the recount in Florida, crafted a brilliant Equal Protection argument… > [@](#): > > 1. Article 2, Section 1, of the Constitution mandates the selection of the president by the Electoral College with each state having the same number of Electors as it has Senators and Representatives. This creates an inherent bias in favor of small states by giving every state two additional Electors without regard to population. (For the sake of simplicity, I will refer to this hereinafter as the small state bias or the bonus Electors.) But the small state bias is fairly minor and it WAS NOT the cause of Donald Trump’s apparent victory in the Electoral College in this year’s Presidential election. Trump won because of the winner-take-all method of allocating Electors used by 49 of the 51 jurisdictions participating in the Electoral College. > … > 2. The constitution does not mandate the method the states use to select Electors. That matter is left to the discretion of the States. Originally the State legislators selected the Electors. But during the 19th Century all of the states moved to statewide elections. Currently all of the States select Electors by statewide elections and all but two of the States, Nebraska and Maine, select Electors on a winner-take-all basis. Nebraska and Maine allocate Electors by congressional district with two Electors elected on a statewide winner-take-all basis. > … > 3. In Williams v. Rhodes, 393 U.S. 23, 89 S. Ct. 5, 21 L.Ed.2d 24 (1968), the Supreme Court made the critical point regarding presidential election law, that although the election of the president by the Electoral College is established by Article II of the Constitution, presidential Electors may be selected by the States in any manner they choose, but when the States opt to select Electors by an election, the election conducted by the states must be conducted in a manner consistent with other provisions of the constitution > … > 4. In summary, a winner-take-all system of allocating Electors by the states denies the minority of voters within each state any representation whatsoever within the Electoral College and ultimately in the case of the 2000 and 2016 elections, denies the plurality of voters nationwide their choice for President under circumstances in which the constitutionally established small state advantage made part of the Electoral College wouldnot. This is neither a reasonable nor a rational result in a representative democracy. This result was dictated by the winner-take-all method of allocating Electors used by the states. It is this state law method of allocating Electors that is an unconstitutional violation of the equal protection clause of the 14th Amendment and its bedrock principle of one man one vote. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [December 6, 2016, 10:56pm UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/2 "2016-12-06T22:56:33Z")
I’m no lawyer but #11 seems like an incredible reach. Frankly, an utterly ridiculous reach. The minority of voters are not being treated differently under the law, they just didn’t get the result they wanted in the election. I know you are a popular vote for President guy but maybe don’t look to the nutters to give you ammo. They’re looking to have one piece of the Constitution to overturn another piece. The only reasonable thing to expect is the court to say the way things are now is perfectly fine. ---
**Author:** ![davidm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/davidm/32/225_2.png) [@davidm](https://boards.straightdope.com/u/davidm)\ **Post date:** [December 6, 2016, 11:23pm UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/3 "2016-12-06T23:23:53Z")
I’m not looking for anybody to give me anything. I also think it’s a reach. I was curious what others think about the argument. I think that we’re about to see a flurry of cases regarding the electoral college, on top of the recount battles. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 6, 2016, 11:33pm UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/4 "2016-12-06T23:33:04Z")
In what way does State A treat the citizens within that state differently? States are not required to treat citizens within that state exactly the same as other states treat their citizens. The cannot deny citizens rights accorded to them by the US constitution, but they **can** deny rights accorded to citizens of State B by State B. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [December 7, 2016, 12:49am UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/5 "2016-12-07T00:49:31Z")
> [@John\_Mace](#): > > In what way does State A treat the citizens within that state differently? States are not required to treat citizens within that state exactly the same as other states treat their citizens. The cannot deny citizens rights accorded to them by the US constitution, but they **can** deny rights accorded to citizens of State B by State B. Well, presumably the argument would be that State A treats the (say) 55% of citizens who voted for candidate X differently from the 45% who voted for candidate Y, by giving one group 100% of the state’s electoral votes , and the other group 0%? Treating them equally would require dividing the state’s electoral votes as nearly as practicable proportionately between them. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [December 7, 2016, 12:59am UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/6 "2016-12-07T00:59:25Z")
> [@UDS](#): > > Well, presumably the argument would be that State A treats the (say) 55% of citizens who voted for candidate X differently from the 45% who voted for candidate Y, by giving one group 100% of the state’s electoral votes , and the other group 0%? Treating them equally would require dividing the state’s electoral votes as nearly as practicable proportionately between them. Sounds like just the sort of logic a California judge would be sympathetic too. Best of luck. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [December 7, 2016, 3:45am UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/7 "2016-12-07T03:45:46Z")
Election law is not my field, but I think this argument pushes Williams too far, for essentially the reason **CarnalK** mentions. In Williams, the state law under challenge expressly granted more favorable terms for ballot access to the two established parties, and this violated the equal protection and associational rights of minor-party voters. In setting up a winner-take-all system, by contrast, the state is acting neutrally as among the different parties. It’s the voters, not the state, who are granting unequal benefits to one party’s followers. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [December 7, 2016, 4:06am UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/8 "2016-12-07T04:06:16Z")
> [@CarnalK](#): > > I’m no lawyer but #11 seems like an incredible reach. Frankly, an utterly ridiculous reach. The minority of voters are not being treated differently under the law, they just didn’t get the result they wanted in the election. I know you are a popular vote for President guy but maybe don’t look to the nutters to give you ammo. They’re looking to have one piece of the Constitution to overturn another piece. The only reasonable thing to expect is the court to say the way things are now is perfectly fine. I suspect you’re right, but it may not be quite as clear-cut as that. The varying provisions of the Constitution must be interpreted harmoniously, of course, but it seems perfectly harmonious to say: (a) the allocation of electoral votes as between the states is mandated by the constitution and cannot be impeached by appealing to the equal protection clause, but (b) the allocation of a state’s electoral votes as between the candidates is _not_ mandated by the Constitution, and therefore any method of allocation used by a state can be tested against the equal protection clause. With respect to Tom Tildrum, it’s not enough to say that “It’s the voters, not the state, who are granting unequal benefits to one party’s followers”. It’s the state, not the voters, who decides that the candidate obtaining a plurality of votes gets 100% of the electoral votes. In a number of states - e.g. in the current year Arizona, Colorado - this means that one candidate gets 100% of the electoral vote even though an absolute majority of the voters voted for someone else, so it’s clearly _not_ the voters who are deciding how the electoral votes are allocated. Of course, you don’t have to push this argument too far before you realise that it’s essentially an argument that the equal protection clause requires a proportionally-representative voting system generally, not just in relation to the selection of electors in the college, the only exception being where some other provision of the constitution requires a non-proportional system. And, whatever the arguments of principle in favour of PR, I suspect that’s a step too far for the courts. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 7, 2016, 4:16am UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/9 "2016-12-07T04:16:59Z")
> [@UDS](#): > > Well, presumably the argument would be that State A treats the (say) 55% of citizens who voted for candidate X differently from the 45% who voted for candidate Y, by giving one group 100% of the state’s electoral votes , and the other group 0%? Treating them equally would require dividing the state’s electoral votes as nearly as practicable proportionately between them. So, what does the state do when 55% of the votes are for Governor Smith and 45% are for Governor Jones? Split the governorship 55/45 between Smith and Jones? The logic fails. Also, remember that we are talking about rights. There is no right to have you vote counted in proportion to those who voted the same as you. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [December 7, 2016, 4:27am UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/10 "2016-12-07T04:27:04Z")
> [@UDS](#): > > Well, presumably the argument would be that State A treats the (say) 55% of citizens who voted for candidate X differently from the 45% who voted for candidate Y, by giving one group 100% of the state’s electoral votes , and the other group 0%? Treating them equally would require dividing the state’s electoral votes as nearly as practicable proportionately between them. That’s how elections work. If 55% of citizens voter for one governor and 45% of another we don’t have one of them be governor 55% of the time and 45% the rest of the time. ---
**Author:** ![octopus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/octopus/32/3716_2.png) [@octopus](https://boards.straightdope.com/u/octopus)\ **Post date:** [December 7, 2016, 6:25am UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/11 "2016-12-07T06:25:43Z")
Equal access to the process not some unobtainable equal proportion to an outcome. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [December 7, 2016, 7:11am UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/12 "2016-12-07T07:11:02Z")
> [@John\_Mace](#): > > So, what does the state do when 55% of the votes are for Governor Smith and 45% are for Governor Jones? Split the governorship 55/45 between Smith and Jones? > > The logic fails. You’ve only got one office to fill there. You can’t distribute one office proportionately; it’s a contradiction in terms. But a state might have, e.g., 17 electors to send to the college. You _can_ distribute 17 electoral offices more or less proportionately. You can’t seriously argue that, because the governor’s office can’t be allocated in proportion to votes, it follows that the offices of electors or legislators can’t be allocated proportionately. To borrow your own phrase, the logic fails. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [December 7, 2016, 12:46pm UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/13 "2016-12-07T12:46:06Z")
> [@UDS](#): > > In a number of states - e.g. in the current year Arizona, Colorado - this means that one candidate gets 100% of the electoral vote even though an absolute majority of the voters voted for someone else, so it’s clearly _not_ the voters who are deciding how the electoral votes are allocated. That didn’t happen, though, did it? Trump got 100%of the electoral vote in Arizona, to take your example, because he won an absolute majority of the votes in Arizona. I acknowledge that still means Arizona state who voted for someone else didn’t get any electors from Arizona elected who share their views, but in choosing electors, why should Arizona be forced to be bound by the wishes of people who aren’t citizens of Arizona? In other words, why should Arizona care who, New Yorkers, for instance think should be President? New Yorkers had the same opportunity Arizonans did to pick electors. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [December 7, 2016, 1:22pm UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/14 "2016-12-07T13:22:46Z")
> [@Captain\_Amazing](#): > > That didn’t happen, though, did it? Trump got 100%of the electoral vote in Arizona, to take your example, because he won an absolute majority of the votes in Arizona . . . No, he didn’t. He got 49.5% of the vote, which is obviously not an absolute majority, or a majority of any kind. > [@Captain\_Amazing](#): > > I acknowledge that still means Arizona state who voted for someone else didn’t get any electors from Arizona elected who share their views, but in choosing electors, why should Arizona be forced to be bound by the wishes of people who aren’t citizens of Arizona? In other words, why should Arizona care who, New Yorkers, for instance think should be President? New Yorkers had the same opportunity Arizonans did to pick electors. Nobody in this thread is suggesting that Arizona should pay any attention at all to the wishes of New Yorkers. The suggestion, in fact, is that Arizona should pay attention to the wishes of Arizonians, and more specifically that it should as far as possible pay equal attention to the wishes of all Arizonians, both the minority who voted for the most popular candidate and the majority who voted for one or other of the other candidates. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 7, 2016, 2:08pm UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/15 "2016-12-07T14:08:31Z")
> [@UDS](#): > > You’ve only got one office to fill there. You can’t distribute one office proportionately; it’s a contradiction in terms. > > But a state might have, e.g., 17 electors to send to the college. You _can_ distribute 17 electoral offices more or less proportionately. > > You can’t seriously argue that, because the governor’s office can’t be allocated in proportion to votes, it follows that the offices of electors or legislators can’t be allocated proportionately. To borrow your own phrase, the logic fails. There is nothing wrong with the logic. If no ones rights are violated in the case of the gubernatorial election, then no ones rights are violated in the case of the presidential election. Besides, you didn’t answer the second question. What specific right are you say is being violated? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 7, 2016, 2:13pm UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/16 "2016-12-07T14:13:57Z")
Missed the edit window. UDS: Keep in mind that “people who didn’t vote for the majority candidate” are not a Suspect Class. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [December 7, 2016, 2:39pm UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/17 "2016-12-07T14:39:08Z")
I’m not saying that a specific right has been violated; I said back in post #8 that, interesting though the argument is, it’s essentially an argument that the Constitution requires a proportional voting system, and I don’t think it does. I think there’s a strong case for changes to US electoral systems, but I don’t think it’s a constitutional case. There is, if you like, an inconsistency between the general statement in the fourteenth amendment regarding equal protection of the laws and the specific provisions dealing with electoral matters which plainly contemplate a system which does _not_ accord equal weight to all votes. First-past-the-post winner-takes-all systems have always predominated in the US at federal and state levels; I don’t think it can be argued at this stage that the Constitution doesn’t permit them. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [December 7, 2016, 2:50pm UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/18 "2016-12-07T14:50:30Z")
It would be nice if the people responding to this question would actually cite the law regarding “equal protection of the laws”. I originally was going to dismiss the argument of violation of the 14th Amendment. But, thinking further, there are some precedents. Let’s contrast two situations: It’s 2018, and in South Carolina, there is a contest for Governor of the state. Up for election are candidates A, B and C. People vote for their preference of candidate to be selected governor. The results are that 49% select A, 48% select B, and 3% select C. As a result, A is the new Governor of South Carolina. Those who voted for B and C are out of luck; they get no “representation”. This is clearly not a violation of the 14th Amendment. It’s 2018, and in South Carolina, there is a city that is electing its City Council. There are ten people running: A, B, C, D, E, F, G, H, I, and J. Of those ten, five become members of the Council. But, instead of dividing the city up in districts, everyone in the city who votes gets to vote for five members. The results of the election are that A, B, C, D, and E all receive about the same number of votes, roughly equal to 55% of those voting. F, G, and H all get about the same number of votes, roughly equal to 45% of those voting. I and J come in with a smattering of votes, each about 10% of the total number of those voting. Now, just co-incidentally, F, G and H are all members of the same “faction.” And they challenge the results, asserting (with some evidence) that, had the city been divided up into five districts, at least two of them, and possibly three of them would have been elected. But because the city was voting on everyone “at large”, the votes of those in favor of that faction were diluted. This, of course, has been held to be violative of the 14th Amendment. So what about electors? Is the selection of electors more like the election of a governor? Or more like the election of a council? Does the fact that we’ve selected electors in almost all states on a winner-take-all basis for 200 years factor into the decision? Does it matter that it’s never been the case that the people whose votes were “diluted” were mostly from a protected class? I suspect that the argument lacks merit in the long run. Note that the quoted bit under #11 is filled with rhetoric such as “neither a reasonable nor a rational result”. The argument goes from a decent legal analysis to a situation of presuming the result by qualifying the outcome according to a pre-established preference. AND, it strays from analyzing the effect of the result in a single state (up for valid analysis under the 14th Amendment) to the effect on people across multiple states (not up for valid analysis in this case, since it’s not a country-wide law involved). Frankly, it doesn’t matter to people who voted for Hillary Clinton in South Carolina that that states electors are all going to vote for Donald Trump, even though the Clinton voters aggregated with Clinton voters in other states to add up to a plurality of voters, _when analyzing whether or not South Carolina’s apportionment of electors is constitutional_. The only question is: are voters who “lose” in South Carolina being treated unconstitutionally by being denied their effective right to vote compared to those who “win”? ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [December 7, 2016, 2:50pm UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/19 "2016-12-07T14:50:43Z")
Do the people who wrote in Mickey Mouse and Tom Sawyer get equal protection too? ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [December 7, 2016, 3:40pm UTC](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060/20 "2016-12-07T15:40:07Z")
> [@UDS](#): > > But a state might have, e.g., 17 electors to send to the college. You _can_ distribute 17 electoral offices more or less proportionately. I know it was just an example, but I thought it was funny you picked the number 17. No state has 17 electoral college votes. GA and MI have 16 and OH has 18. [Next page](https://boards.straightdope.com/t/the-electoral-college-vs-the-equal-protection-clause/774060.md?page=2)