Challenging Winner Take All: Cert. filed

7 min readFeb 7, 2021

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 romanticized by people who think the current system has any relationship to the system created by our Framers: Michigan is not a small state. Pennsylvania is not a small state. Florida is not a small state. There is no good reason that America should outsource the selection of our president to these few states in particular. There’s no good reason that America should outsource the selection of our president to any set of states in general. Presidential candidates should campaign to appeal to Americans in every state in America, not just the few. WTA is the reason they don’t.

The legal argument is also fairly clear (but having been fighting this issue for 5 years now, I would think that): The case has framed the challenge based both on White v. Regester, 412 U.S. 755 (1973) and Gray v. Sanders, 372 U.S. 368 (1963). The White attack is clear enough. I find the Gray challenge conceptually more interesting.


law professor, activist.