Winner-Take-All: Democratic Rule (at the Expense) of the People

What do you call it when the entire slate of a state’s electors votes in favor of the 51% and eliminates the 49% when deciding a presidential election? According to Constitutional law professor Erin Murphy, this would be called an “inequity… that disregards the choice of millions of voters every four years,” better known as the Electoral College’s winner-take-all system.¹ How has this seemingly flagrant violation of “one-person, one-vote” — a principle shared by both democratic intuition and Constitutional law itself — remained constitutional?² Murphy points to misjudgment: Whereas prior Courts failed to recognize winner-take-all as a violation of “one-person, one-vote,” it can be proven unconstitutional as a violation of the “invidious standard,” which holds that even electoral processes that produce majoritarian outcomes are unconstitutional if enacted as an intentional attempt to maliciously disenfranchise minorities. The Constitution, if rightfully applied, would strike down such an “inequity.”

In contrast to the optimistic arc of Murphy’s case, I argue that winner-take-all remains constitutional and does not violate the invidious standard. This is not because of a failure by Murphy to demonstrate the unfairness of winner-take-all, but rather due to a more fundamental issue: Constitutional law implicitly defines democracy as rule of the state’s will over the popular will. In other words, according to the Constitution, the fact that a winner-take-all system may privilege state will over minority voices is not an affront to democracy but rather a feature of it. This article will first introduce Murphy’s argument for unconstitutionality via the “invidious standard” and then explores three cases — Minor v. Happersett (1875), Williams v. Virginia State Board of Elections (1968), and Bush v. Gore (2000) — that suggest the Court has long defined democracy in such a way that a winner-take-all approach would not in fact be invidious.

To begin, the case for democracy as rule of the states first relies on understanding Murphy’s argument for winner-take-all’s unconstitutionality. Key to her account is the “invidious standard” of Williams v. Virginia (1968), which states that “once the electoral slate is chosen, it speaks only for the element with the largest number of votes…. [This] in a sense is discrimination against the minority voters, but in a democratic society the majority must rule, unless the discrimination is invidious.”³ The invidious standard, in short, defines the point up to which elections can defer to the majority rule at the expense of the minority: Decisions must reflect majority rule, but they cannot come at the expense of seeking to intentionally and maliciously limit minority voices. Despite the apparent effect of ignoring minority voices in the final allocation of votes, winner-take-all has been ruled as constitutionally passing the invidious standard in cases as recent as Rodriguez v. Newsom (2020). No claim of intent to disenfranchise minority voices can be made when each state counts every single vote in good faith before calculating the majority and awarding the allocation of electoral votes accordingly.⁴

However Murphy argues that the Court has simply misapplied the standard — absence of invidiousness cannot be proved by the mere fact that individual states or electors exhibited no intent to suppress minority voices. Evaluating winner-take-all as invidious or not, she argues, requires a more careful understanding of the institution’s peculiar nature that the Court omitted. In particular, winner-take-all is an inextricable electoral institution in which actors have little choice but to act in accordance with tradition and further is not a singular act on which one could even locate intent. Meaningful intent, therefore, is better found in analyzing the intentions behind the formation of the winner-take-all system, which history suggests is rife with undemocratic intent.⁵ Through various correspondence between Founding Fathers and senators spanning the turn of the 19th century, Murphy finds invidious intent in winner-take-all’s creation: In a 1799 letter to Madison, Jefferson wrote that he is aware that winner-take-all would ensure “the minority [was] entirely unrepresented” and yet still advocated for it for the explicit purpose that it would benefit his campaign. In 1824, Senator Thomas Hart Benton also confirmed that the “general ticket system [a.k.a. winner-take-all], now existing in ten States,” was created with the intent not to “give fair play to the will of the people” but specifically “by the leading men of those states, to enable them to consolidate the vote of the State.”⁶ Per Murphy’s argument, even if the Court had previously disagreed with the public sentiment of winner-take-all as a violation of “one-person, one vote,” it should surely recognize the institution as unconstitutional as a violation under this re-application of the invidious standard.

Even if winner-take-all exhibits intent to underrepresent the minority and “consolidate the vote of the State,” this intent is not “invidious” because it conforms to the Constitution’s long-standing definition of democracy as the will of the states, not the people. This state-centric definition of democracy traces back at least until 1875’s Minor v. Happersett. By ruling that women can be citizens yet not voters, Minor clarifies that American democracy is not strictly under the rule of its citizens. As “state governments the Constitution did not change,” chose to avoid a precedent of recognizing citizens as federal voters and to instead enshrine the state’s authority to determine who counts as a voter and what counts as a vote.⁷ Minor The implications were profound: Since votes are the raw currency of political power in an election, the ability of any state to determine what sort of ballot is cast essentially manifests that state as the primary political kingpin, or even voter, of an election. If power in a democracy derives from the demos, then Minor entertains the notion that the true demos are not the citizens but states themselves — or at least, citizens only to the degree that they serve as units of the state.

Where Minor simply implied or suggested, Williams v. Virginia (1968) declared in full force. Presented with the case for winner-take-all’s unconstitutionality, the Court defended the system — out of their own accord — as a sacrifice of popular will for state will. In the Court’s own rendering:

“[Virginia] had the choice of appointing electors in a manner which will fairly reflect the popular vote, but thereby weaken the potential impact of Virginia as a State in the nationwide counting of electoral ballots, or to allow the majority to rule and thereby maximize the impact of Virginia’s twelve electoral votes in the electoral college tally. The latter course was taken, and we cannot say unwisely.”⁸

While some may pass this off as the isolated opinion of an unusually undemocratic Court, this Court in the very same opinion enshrined and protected the democratic power of the minority defined by the “invidious standard.” Far from being gripes of an anti-democratic Court written with loopholes and oblique arguments, the opinion genuinely confirms the definition of democracy implied in Minor: that democracy requires the prioritization of the voting power of the state over the people.

Finally, Bush v. Gore (2000) concretized this definition of state-centric democracy as constitutional in the contemporary era. In an unusual move, the Court went out of it way to remind the public of the state’s supremacy in voting:

“The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”⁹

Further, while “history has now favored the voter” such that “citizens themselves vote for Presidential electors,” the Court argues that this is merely as a result of the “special context of Article II” and that states “can take back the power to appoint electors.”¹⁰ The threat that Presidential electors may not be beholden to the voter seems out of place as a legitimate future outcome in the 21st century, where it would be unthinkable for state electors to vote against their state’s plurality. Rather, the Court restates this unlikely hypothetical to illustrate in sharp terms whom American democracy ultimately first serves: the state. While the people’s votes are of course instrumental, in forming the state’s final vote, the Court puts down the voter by reminding them of their lack of federal constitutional right to vote for electors and elevates the state as the meaningful agent in control during a presidential election.

Removing winner-take-all, therefore, remains an uphill battle in the Courts due not to a lack of effort but rather a fundamental incongruity: while we define democracy as the rule of the people, the Constitution defines it as rule of the states. Rather than defend and tolerate this unfair institution, this critique of Murphy hopefully serves two constructive ends. In practical fields, this conclusion suggests that the time and pressure needed to even bet on a fundamentally reworking of Constitution law in favor of winner-take-all may simply be too great. Reform might be better spent in non-judicial, legislative paths. Legal scholars, too, may consider the necessity of democratic philosophy in Constitutional voting law. While normative theory may traditionally lie outside the practice of procedural justice, Constitutional scholars have the unique opportunity not only to explain the legality of unpopular democratic institutions but also to expose underlying disagreements within the public, our policy, and history on a core question: what sort of democracy are we as a nation striving for? The constitutionality of winner-take-all warns that there may be far less consensus in this basic question than we expect.

References

1. Murphy, Erin E., “The Winner Takes All and Will Never Give it Up: The U.S. Supreme Court Must Protect Voters from the Electoral College.” Kyungpook National University Law Journal, 71, vol. 71 (October 2020): pp 62, https://doi.org/10.17248/knulaw..71.202010.61.  ↩

2. “One-person, One-vote Rule,” Cornell Law School Legal Information Institute, last modified May, 2022, https://www.law.cornell.edu/wex/one-person_one-vote_rule. ↩

3. Williams v. Virginia State Board of Elections, 288 F. Supp. 622 (E.D. Va. 1968). ↩

4. Rodriguez v. Newsom, No. 18-56281 (9th Cir. 2020). ↩

5. Murphy, “The Winner Takes All,” pp 70-71. ↩

6. Barbara B. Oberg, The Papers of Thomas Jefferson, Volume 31: 1 February 1799 to 31 May 1800. (Princeton University Press: 2004), 300-301. ↩

7. Minor v. Happersett, 88 U.S. 162 (1874). ↩

8. Williams v. Virginia State Board of Elections, 288 F. Supp. 622 (E.D. Va. 1968). ↩

9. Bush v. Gore, 531 U.S. 98 (2000). ↩

10. 531 U.S. 98 (2000). ↩