Exactly 50 years ago, the Supreme Court ducked the question whether the “winner take all” system for allocating electors violates the Equal Protection Clause

How different the world would have been if the Court had taken up Delaware’s request, and tested whether the state constructed rule of “winner take all” is consistent with the principle of “one person, one vote” — because it plainly is not. Citizens are not equal in America, because of the way states have decided to determine the results of citizens’ votes.

Here’s the motion filed by Delaware in the Supreme Court, asking leave to file a complaint. (Because Delaware was suing other states, the Supreme Court would have exercised “original jurisdiction,” meaning it would act as the trial and appellate court both.)

The Supreme Court declined to hear the complaint. On November 21, 1966, refused to reconsider its decision.

Read it, and, depending on your perspective on this election, weep or breathe-a-sigh-of-relief.

Written by

law professor, activist.

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