The US Court of Appeals Fifth Circuit on Wednesday upheld Texas’s winner-take-all system for awarding electoral college votes in presidential elections.
The challengers, led by an organization called the League of United Latin American Citizens (LULAC), had asserted that distributing all of Texas’s 38 electoral votes to the winner of the state’s popular vote, rather than distributing them proportionally, violated the constitutional principle of “one person, one vote” and created a barrier to democratic participation in non-swing states. The Fifth Circuit disagreed, with Judge Jerry Smith writing that “there is a critical distinction between a system that diminishes voters’ motivation to participate and one that burdens their ability to do so. Although [winner-take-all] may indirectly decrease the incentive of members of perennially losing political parties to vote, it does not hinder their actual ability to vote.”
A similar case was brought in Virginia in the 1960s, and on appeal the Supreme Court affirmed that the winner-take-all system there did not violate “one person, one vote.” In the recent Texas litigation, LULAC argued that the old case, Williams v. Virginia State Board of Elections, should not control because of later legal developments, including the Bush v. Gore decision that settled the 2000 presidential election. The Fifth Circuit disagreed. The Bush v. Gore ruling, the court noted, expressly limited itself to the circumstances of that case. And “Bush v. Gore dealt with the arbitrary and disparate treatment of voters, whereas in Williams, all of Virginia’s voters participated in the election on equal terms,” Judge Smith wrote. The facts of LULAC’s challenge align with Williams, he reasoned, which remains binding precedent and allows for winner-take-all electoral distribution.
“Democratic elections necessarily result in winners and losers. The frustration of losing, however, does not violate the Constitution,” Judge Smith concluded. LULAC’s president, Domingo Garcia, released a statement expressing disappointment in the decision. “We plan to consider appealing to the full court panel or to the US Supreme Court where we believe this case will ultimately be decided,” he said.