Virginia Electoral Vote Plan: Unconstitutional?

The legislature in Virginia is considering changing the way they divide the state’s electoral votes. In case you don’t remember, each state receives EVs equal to their number of U.S. Representatives (proportional by population) and U.S. Senators (2 per state). In most states, those electoral votes go en masse to the winner of the state. But a Virginia legislator is proposing that the votes be allocated base on the victor in each congressional district, with the two remaining votes going to the winner of the most congressional districts. In addition to being a ridiculous attempt to rig the presidential election system, I think this plan is unconstitutional.

The Background: The U.S. Constitution gives state legislatures the authority to draw congressional boundaries (Article I, Section 4). It also gives states the authority to determine how electoral votes (EVs) are apportioned (Article II, Section 1). But in a series of cases in the 1960s, the U.S. Supreme Court ruled that legislative boundaries had to be proportional. This was the “one man, one vote” principle: that each vote has to bear equal weight in determining representation. For the states, that meant an end to using other area boundaries (like county lines) to draw congressional districts because it gave the votes of some (rural voters) greater weight than others (urban voters).

The Court recognized one large exception: the U.S. Senate. Since the Constitution explicitly establishes that the distribution of senators on a basis separate from population, that doesn’t fall under this general principle. But the Court rejected the same argument on any state-wide basis. Both congressional districts and state legislative districts must obey the rule of equal representation.


So where does that leave state discretion in dividing electoral votes? The Court hasn’t tackled the issue directly, but this is how I think its previous rulings apply in four scenarios:

1. Divide Most EVs According to Congressional Boundaries and Assign the Remaining Two EVs to  the Victor in the Majority of Congressional Districts – This is plan is a double-whammy in violating the “one man, one vote” rule.

First, the congressional boundaries are drawn with a partisan tilt. The Court says that’s fine for electing representatives. But is that thumb on the scale acceptable for choosing how to apportion the state’s presidential electoral votes? By definition it will mean that voters in certain districts have their votes count for less. Imagine a scenario where turnout is up in a heavily Democratic urban district and flat in a heavily Republican rural/suburban district. There could be 100,000 more votes for the Democratic candidate and the same even split in the electoral outcome because those Democratic votes because of how those votes were distributed over otherwise irrelevant land boundaries.

Second, by assigning the remaining two votes based on the district level outcomes, this plan would multiply the impact of the district boundaries. A set of districts with a relatively even split tilted to one party would trump slightly fewer districts that heavily favored the other party, even if the statewide vote favored that latter party. In competing for state-wide electoral votes, some voters would be at a distinct disadvantage only because of how the boundaries were drawn. That is exactly what the Court rejected in the decisions regarding the “one man, one vote” rule.


2. Divide Most EVs by Congressional Boundaries and Assign the Remaining Two EVs According to Popular Vote – There’s been some talk that the Virginia legislature might ultimately choose this approach. I think this is still unconstitutional for the reasons above, though less clearly so because at least the two at-large EVs are decided on an equal basis. Still, the Court would have to find an implicit exemption to the equal representation principle for the other EVs. To do so where it had only protected explicit exceptions (the U.S. Senate) would be a reversal of precedent.


3. Winner-Take-All According to Popular Vote – Critics of the electoral college hate this system because it violates the spirit of a popular election. But it passes the constitutional test on two counts. First, all voters in the state have an equal say in determining how the state’s EVs will be appointed. Second, the division of the EVs along state boundaries is explicitly decreed in the Constitution (just like the U.S. Senate appointment). Also, as it happens, historically this system has more closely reflected the national popular vote than the approaches above.


4. Proportional Division of EVs According to Popular Vote – I think it would be bad for one or a handful of states to do this on their own, tantamount to an attempt to rig the presidential election. But I think it nevertheless would pass constitutional muster for the same reasons as the winner-take-all approach: It doesn’t violate “one man, one vote” within the state and the unequal state distribution is explicit in the Constitution.


The Catch: In general, I’m not sure whether anyone has standing to bring this matter to court. Presumably the voters whose votes bear less weight in the new scheme would have standing, but that may only apply after the plan worked. Except that Virginia falls under the stricter standards of the 1965 Voting Rights Act. So the Justice Department can counter the change if it believes the plan would diminish the power of minority voters (likely) and create a fast track to the federal courts. I don’t see any reason the current Justice Department would hesitate to do so since it has challenged voter ID laws and this is certainly at least as serious. So, if Virginia decides to re-weight the value of its citizens’ votes, there should be a way for the federal judiciary to halt their plan to rig the next presidential vote. Let’s hope it doesn’t come to that.

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