The United States Supreme Court declined to hear Rodriguez v. Newsom on Monday, keeping intact California’s winner-take-all approach to selecting presidential electors.
According to the case petition, comedian Paul Rodriguez, Rocky Chavez, the League of United Latin American Citizens, and the California League of United Latin American Citizens claimed that current winner-take-all process is unconstitutional. They argued that the current system of voting for president in California isn’t a vote for president, but rather a vote for electoral college electors. As California has voted Democratic for all presidential elections since 1992, it meant that all Republican and other party votes were ignored, diluting and discarding their votes and violating their rights in casting an effective vote.
“This cancellation of the votes of the minority party is unconstitutional for two reasons,” noted the petition. “First, as [a previous court ruling] makes clear, the government may not discard millions of votes at an intermediate step of a multi-stage election, like that for President.
“Second, as this Court made clear in White v. Register, on which the court below erroneously relied—states may not use at-large, slate elections for multi-member bodies to disregard the preferences of a minority of voters.
“Winner-take-all is not within the Constitution. It is instead a partisan invention by the states that has become the default for the nation.”
A winner-take-all approach in choosing presidential electors
However, the arguments were quickly denounced in a reply brief to Rodriguez v. Newsom by attorneys for Governor Gavin Newsom, then-acting California Secretary of State James Schwab, and other respondents in the original petition.
Specifically, they argued that the current system “does not treat any voter or group of voters differently from any other or prevent anyone from casting a vote.”
While the Supreme Court turned down hearing the case without comment, legal experts noted that this will not be the last time that California or another state will bring this issue up.
“There’s a lot of questions here,” noted John Loughton, a lawyer who has been involved in election cases before, to the Globe on Monday. “But right now Republicans are looking to shake up the electoral system, much like Democrats have been since Bush v. Gore. Many want more of a result based on national popular vote rather than through states. Others want states to vote proportionately and have electors be chosen from the candidate percentage in each state. Under this system, Ross Perot would have grabbed a few electoral votes in California in 1992, with Libertarian Gary Johnson also likely snagging one in 2016.”
“But there are also questions on where the vote for electors should stop. If electors are proportional, will they need to be duty bound to vote for the state winner? Will they be a faithless elector? Will it be more split like Nebraska or Maine currently can do in a presidential election? And what about those votes in the minority? Are they not counted at all in a win? A case like this can really open Pandora’s Box for future cases, and the Supreme Court has really steered away from the electoral college in recent years. Last year they ruled that states can restrict faithless electors, and that was a huge deal.”
“They are very choosy on big issues like this. So it’s like them choosing a gun rights case or an affirmative action case or an abortion case. It doesn’t happen often, but when they do, it can send shockwaves. And they obviously don’t want to rock this boat just yet.”
It is unknown if similar cases in lower courts will be heard later this year.
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