Court OKs Texas win­ner-take-all elec­tor sys­tem

Times-Herald (Vallejo) - - NEWS - By Kevin Mcgill

NEW OR­LEANS >> The win­ner-take-all sys­tem Texas and 47 other states use to as­sign Elec­toral Col­lege pres­i­den­tial votes is con­sti­tu­tional, a fed­eral ap­peals court said Wed­nes­day.

A three-judge panel of the 5th U.S. Cir­cuit Court of Ap­peals in New Or­leans unan­i­mously up­held a lower court’s dis­missal of a law­suit chal­leng­ing the Texas sys­tem. It was the lat­est de­feat for or­ga­ni­za­tions chal­leng­ing such sys­tems in Texas and three other states. Cases are pend­ing at the ap­pel­late level in at least two of those cases.

Domingo Gar­cia, na­tional pres­i­dent of the League of United Latin Amer­i­can Cit­i­zens, a lead plain­tiff in the case, said he ex­pects the is­sue to wind up at the Supreme Court. LULAC said in a news re­lease that it was con­sid­er­ing its next move. The league and its al­lies could re­quest a re­hear­ing by the full 5th Cir­cuit, which has 16 ac­tive mem­bers, or go straight to the Supreme Court.

The 5th Cir­cuit rul­ing cited ap­pel­late and Supreme Court de­ci­sions dat­ing back to the 1960s that have up­held the win­ner­take-all sys­tem. It re­jected chal­lengers’ as­ser­tions that elec­tors should be al­lo­cated pro­por­tion­ately, based on a per­cent­age of the pop­u­lar vote for each pres­i­den­tial can­di­date.

Among those push­ing the chal­lenges are LULAC and at­tor­ney David Boies, who rep­re­sented thenVice Pres­i­dent Al Gore in the lit­i­ga­tion over the Florida vote count in the 2000 pres­i­den­tial elec­tion. The chal­lenges say the win­ner­take-all sys­tem vi­o­lates the “one-per­son, one-vote” prin­ci­ple aris­ing from con­sti­tu­tional equal pro­tec­tion and free­dom of as­so­ci­a­tion rights.

But the 5th Cir­cuit panel cited court prece­dents hold­ing that each cit­i­zen in each state is af­forded the op­por­tu­nity to vote and that the win­ner-takeall sys­tem does not de­prive any­one of that right.

The panel also re­jected other ar­gu­ments, in­clud­ing the as­ser­tion that the win­ner-take-all sys­tem causes na­tional can­di­dates to ig­nore Texas vot­ers while fo­cus­ing on swing states, and that it di­min­ishes the in­cen­tive of vot­ers whose party or can­di­date is lag­ging in state polls to cast a bal­lot in a pres­i­den­tial race.

The opin­ion’s au­thor, Judge Jerry Smith, said there is “a crit­i­cal dis­tinc­tion be­tween a sys­tem that di­min­ishes vot­ers’ mo­ti­va­tion to par­tic­i­pate and one that bur­dens their abil­ity to do so.”

Smith said while the win­ner-take-all sys­tem “may in­di­rectly de­crease the in­cen­tive of mem­bers of peren­ni­ally los­ing po­lit­i­cal par­ties to vote, it does not hin­der their ac­tual abil­ity to vote.”

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