Case Against WTA laws

The WTA laws are not part of the Constitution. They are State laws enacted in the early days of the nation to leverage each State’s voting power in the electoral college. The problem started when Virginia enacted a WTA method as a trick to give Thomas Jefferson an advantage. Because some States got an advantage this way to promote their home State candidates, all other States followed suit. WTA allocates all elector votes to the candidate that wins a plurality of the vote in the State. People who voted for other candidates are disenfranchised by having their votes not give them any representation in the Electoral College.

 The Equal Protection right is enshrined in the 14th Amendment. It guarantees all citizens the right to be treated equally under the law. This right is the bedrock of civil rights. It was the basis for ending segregation and providing marriage equality. The Supreme Court has found multiple times that Equal Protection guarantees everyone the right to vote, the right to have that vote counted with value equal to other votes, and the right to representation on an equal basis.

The right of all persons to vote is also enshrined in the 15th Amendment which legally ended discrimination at the ballot box, the 19th Amendment that gave women the right to vote, and the 24th Amendment that stopped States from taxing people for the right to vote (a practice commonly used to deny minorities in the South the right to vote). The Supreme Court has also found in multiple cases, that One-Person, One-Vote must be upheld in all elections.

Yes it is! Several States have agreed to a compact that awards all their State’s electors to the winner of the national popular vote for President. However, the compact doesn’t take effect until a certain number of the States enact it, and it is doubtful that unpopulated red States will join this compact. 

In striking down the WTA laws, the Supreme Court has several options. The best is to have all States require their electors pledge to vote for the winner of the national popular vote. This is the truest, most exact way to ensure Equal Protection at the ballot box and One-Person, One-Vote.

The Supreme Court may want to preserve the Electoral College’s unequal weighting by population. (e.g. Wyoming residents have over 3.6 times to voting power of California residents). They could do this by requiring states allocate their electors proportionally to the top two candidates in the State. Why just the top-two? Because this is the best way to ensure that at least one candidate gets 270 electoral college votes, thereby preventing the House of Representatives choose the President.

Bush v. Gore: “When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.” (531 U.S. 98, 121 S. Ct. 525, 148 L.Ed.2d 388)

Reynolds v. Sims (1964): “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” (377 U. S. 533, 555 (1964)) 

Williams v. Rhodes (1968): “Obviously we must reject the notion that [Art. II, § 1 of the Constitution], gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other constitutional provisions. We therefore hold that no State can pass a law regulating elections that violates the Fourteenth Amendment’s command that ‘No State shall… deny to any person… the equal protection of the laws.” (393 U.S. 23, 89 S. Ct. 5, 21 L.Ed.2d 24, pp, 28–29)

Reynolds v. Sims (1964): ”Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is bedrock of our political system. It could hardly be gainsaid that a constitutional claim had been asserted by an allegation that certain otherwise qualified voters had been entirely prohibited from voting for members of their state legislature. And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted. (Id p. 561).