We filed cert. Friday in the latest stage of litigation challenging the state-created practice of awarding presidential electors in a “winner take all” (WTA) manner.
The litigation has been conducted in four states—two Red states and two Blue states. Every circuit has believed itself bound by a 1968 Supreme Court summary affirmance upholding the practice, Williams v. Virginia State Bd. of Elections, 288 F. Supp. 622 (E.D. Va. 1968), aff’d, 393 U.S. 320 (1969). In one case, Baten v. McMaster, 967 F.3d 345, 364 (4th Cir. 2020), Judge Wynn offered a compelling dissent, arguing that Equal Protection law has “developed significantly” since 1968, and that the practice of WTA plainly violates modern Equal Protection standards.
The democracy argument against WTA is clear enough: WTA divides the nation into swing states, and spectator states. Most states are spectator states. Presidential campaigns, however, care only about swing states. The vast majority of spending (literally, greater than 95%) is within swing states. If Kriner and Reeves (The Particularistic President) are correct, that fact leads presidents to bend spending and regulation to benefit swing states over non-swing states. But swing states don’t represent America: Their population is older and whiter. Their industry is not the future but the past. And they are not the small states so…
