AG Paxton Defends Electoral College at Fifth Circuit
“This challenge to the Electoral College system is not just baseless, it threatens to destroy the framework of our election process.”
On behalf of Texas Attorney General Ken Paxton and Governor Greg Abbott, Deputy Solicitor General Matthew Frederick today (Friday, 7 Feb., 2020) defended the time-honored Electoral College system at the U.S. Fifth Circuit Court of Appeals, arguing that Texas’s method of appointing presidential electors is consistent with the U.S. Constitution’s command that “each State shall appoint, in such Manner as the Legislature thereof may direct, a number of electors, equal to the number of Senators and Representatives to which the State may be entitled in Congress.”
Texas appoints the State’s presidential electors on a winner-take-all basis to the presidential candidate who receives the most votes in a statewide election—a method that dates back to the first presidential election and that is used in all but two states today.
“Only an amendment to the Constitution can change or eliminate the stable and successful presidential election system designed by our Founders. The Electoral College has been in constant use since 1789, and the Constitution clearly allows states to appoint electors as directed by the Legislature,” said Attorney General Paxton.
“Texas and the 47 other states that selected the winner-take-all method are operating in full compliance with the Constitution. This challenge to the Electoral College system is not just baseless, it threatens to destroy the framework of our election process.”
Nearly 50 years ago, the U.S. Supreme Court affirmed a decision rejecting the argument that the winner-take-all system is unconstitutional. One year ago, the U.S. District Court in San Antonio dismissed a lawsuit challenging the Electoral College system, finding that Texas’s method of appointing electors does not deny any person an equally weighted vote or deny any voter’s First Amendment rights of association or expression. The election process in Texas is free, fair, and lawful.
Texas ‘Winner-Takes-All’ Election Challenge Fought at Fifth Circuit
An attorney representing the League of United Latin American Citizens told a panel of three Fifth Circuit judges Thursday the “winner-take-all” electoral voting method used in Texas and 47 other states across the U.S. negates votes cast by minority voters.
Attorney Amy Mauser asked the judges to reverse Senior U.S. District Judge David Ezra’s February 2019 order granting the state of Texas’s motion to dismiss, and to remand the case for reconsideration.
Each judge on Thursday’s panel appeared cranky during what was the first of four hearings on a morning of heavy rain that followed the torrential rain and high winds that swept through the Big Easy on Wednesday and sent temperatures plunging 20 degrees into the 50s.
U.S. Circuit Judge Carl E. Stewart, a Bill Clinton appointee, directed Mauser to “listen to the question and answer the question asked,” after Mauser evidently answered a series of other questions put forth by the judges in an indirect manner.
In response to this, and in quick succession, Mauser laid out her argument. She said it is necessary for this electoral issue to be decided in court and that the size of voting districts must be considered.
“Even a system adopted for a neutral purpose can be maintained for a discriminatory one,” Mauer said, emphasizing that whatever system is in place must be carefully chosen and regarded.
Mauser said that the current two-step voting process – where citizens go to the polls in early November and pick the candidates of their choice, and in turn the electoral delegate goes to the polls in December and chooses the most popular candidate, leaving all the previous votes behind and of no influence over the final vote – effectively negates millions of minority votes each election cycle.
In such a system, “plaintiffs are represented zero percent of the time,” Mauser said.
But Matthew Frederick, representing Texas and its governor, said plaintiffs have not brought any claims alleging discriminatory intent.
Frederick said the plaintiffs have said they intend to expand a claim for “one person, one vote” but they have not so far.
He also argued Judge Ezra was correct to dismiss the lawsuit and said the truth about voting is the “opposite of what plaintiffs claim: ballots are counted equally.”
Furthermore, Frederick argued the “winner-take-all” system isn’t a partisan system. He said the plaintiffs’ theory is that the system for electing the president is flawed when, really, it is not.
During rebuttal, Mauser said the Fifth Circuit’s attention to this issue is so important because “the only branch of the government that can review this [voting issue] is the courts.”
She reiterated that “the system is designed to cancel out the votes of minority voters.”
Thursday’s appeal is one of four involving the same issue. One of them, filed by voters in California, will be taken up by the Ninth Circuit in March.
Outside the courtroom after the hearing, Mauser reiterated this is an issue of canceling out minority votes and is a nonpartisan issue.
This case stems from a lawsuit filed in February 2018 and dismissed the following February.
In his order dismissing the case, Judge Ezra wrote that by using numbers advanced by plaintiffs in their complaint, in 2008 and 2016 Hispanic voters who voted for Republican candidates constituted roughly 16% of the voting electorate, nearly twice the margin by which the Democratic candidate lost the 2016 presidential election in Texas.
“If nearly 40% of Hispanic voters had not voted for the Republican candidate, the combined strength of minority voters and the large number of white ‘crossover’ voters would have been able to carry the presidential election in Texas,” Ezra said, “challenging the assertion that whites vote as a legally significant bloc.”
Ezra concluded: “The facts alleged by plaintiffs, therefore, strongly implicate the conclusion that the relevant bloc frustrating plaintiffs’ election success is not whites but Republicans.”