THE OLD COLLEGE ON TRIAL
Suit: Electoral system disenfranchises voters
The lawyer who argued Bush v. Gore before the U.S. Supreme Court after the contested 2000 presidential election appeared in federal court in Boston yesterday to challenge the way Massachusetts allocates its Electoral College votes in presidential elections.
David Boies, who represented then-Vice President Al Gore in the case that settled the disputed election in favor of George W. Bush, said the winner-take-all system used in Massachusetts to select electors who cast votes for president and vice president in the Electoral College after a presidential election disenfranchises voters.
“It tends to undermine the right of people to ... have an effective voice,” said Boies, representing former Republican Gov. William F. Weld, who ran for vice president in 2016 on the Libertarian Party ticket. “Everyone knows that this state is going to give its electoral votes to the Democratic candidate . ... We’re becoming a nation of one-party states.”
A coalition that includes Weld and a Latino membership organization filed federal lawsuits in February in Massachusetts and California, where a majority of votes went to Democratic nominee Hillary Clinton in the 2016 presidential election, and in South Carolina and Texas, states that went for Republican nominee Donald Trump.
Forty-four other states and the District of Columbia also use the winner-take-all system, under which the candidate who wins the popular vote in a given state gets all of its electors. To win the presidency, a candidate must win at least 270 votes from the Electoral College’s 538 electors.
Critics complain that this system allows a candidate to win a presidential election despite losing the nationwide popular vote.
In 2016, Clinton won the popular vote by nearly 3 million ballots, but Trump won the Electoral College vote and thus the presidency. In the 2000 election, Gore, a Democrat, got the most votes, but Bush, a Republican, won the presidency.
The only question in Massachusetts, Assistant Attorney General Amy Spector said, is whether the state’s system is constitutional.
The Electoral College process was established in the Constitution as a compromise between electing a president by a vote in Congress and by popular vote of citizens.
“There’s no injury (to the plaintiffs) because there’s no constitutional right to what they’re seeking,” Spector told Chief U.S. District Judge Patti B. Saris, who took the case under advisement.
Spector also disputed Boies’ suggestion that Massachusetts’ system has made it a one-party state.
“At times the Republicans have won, and at times the Democrats have won,” she said. “There’s no inherent unfairness in it.”
If Weld and his co-plaintiffs dispute that, Spector said, they should air their grievances to the state Legislature.