The Palmetto State is one of 48 states that selects presidential electors on a winner-take-all basis. Only Maine and Nebraska allow for split electoral votes.
(CN) — The Fourth Circuit heard arguments Tuesday over the constitutionality of South Carolina’s winner-take-all method for selecting delegates in the Electoral College voting system.
“No matter how close the election, all of South Carolina’s nine electors, and all of its electoral votes, are awarded to the winner of a plurality of the statewide vote. This ensures that as many as a million voters, including plaintiffs, have no representation in South Carolina’s Electoral College delegation and no impact on the presidential election,” attorneys for a group of Democratic voters wrote in a lawsuit filed against the state two years ago.
The Palmetto State is one of 48 states that has opted to select electors on a winner-take-all basis. The District of Columbia also follows this process, in which the political party of the leading presidential candidate selects every elector. Only Maine and Nebraska allow for split electoral votes.
According to lawsuit, this renders every other voter’s choice “meaningless by receiving no elector directly or through a political party.”
The 34-page complaint recounts the 2016 presidential election, in which Donald Trump won 54.94% of the vote in South Carolina and received every electoral vote. Democratic candidate Hillary Clinton received 40.67% of the vote but received none of the state’s electoral votes.
Alleging the winner-take-all method “silences plaintiffs’ voices in national politics by robbing them of a chance to cast a meaningful vote,” they claim the scheme violates the Voting Rights Act as well as the First and 14th Amendments.
A federal judge in Charleston dismissed the lawsuit last year, ruling that the electoral voting system “complies with equal protection because it does not inherently favor or disfavor a particular group of voters.”
On appeal Tuesday, a three-judge panel of the Richmond, Virginia-based appeals court expressed chagrin over being unable to carry on the unique Fourth Circuit tradition of shaking hands with counsel due to the coronavirus pandemic. The hearing was held via live video to prevent the spread of Covid-19.
The lower court’s dismissal quoted a decision in a similar case out of Massachusetts known as Lyman v. Baker, in which the First Circuit rejected 14th Amendment claims over that state’s winner-take-all system.
Attorney Max Rosen, arguing Tuesday on behalf of the Democratic voters, cited that ruling even though it disposed of a case similar to the one brought by his clients.
“The First Circuit, although it ultimately rejected those claims, correctly articulated a number of relevant principles of law that apply here today and demonstrate why this court should reverse,” Rosen told the panel. “The First Circuit agreed that election for electors is subject to restriction under the 14th Amendment and the equal protection clause.”
Rosen warned that a continuation of the winner-take-all process would result in one-party rule and dilute the voting strength of black voters.
African Americans comprise nearly 27% of South Carolina’s voting-age population, and about 95% of the state’s black voters consistently vote for Democratic candidates in presidential elections, according to the plaintiffs’ brief to the Fourth Circuit.
“This means that, under a more proportional system, South Carolina’s black voters alone would have the voting strength to elect two of the state’s nine electors without the support of a single white voter,” the brief states.
Thomas Limehouse, chief legal counsel for South Carolina, pushed back against those arguments in Tuesday’s hearing.
“Plaintiffs ask this court to do two things that no court has done before. First, rule in their favor, and second, design and require a state to adopt a purely proportional approach to appointing presidential electors,” Limehouse told the panel.
Noting that the practice is used in all but two states, Limehouse urged the panel to either affirm the lower court’s dismissal or rule that the court lacks jurisdiction to decide the case.
Limehouse also rejected Rosen’s claim that the winner-take-all method can negatively impact voters of whichever party is not in power.
“Here, the Constitution expressly grants state legislatures the authority to determine the manner of appointing presidential electors,” he said. “This court should be skeptical of a request to impose a remedy that plaintiffs acknowledge doesn’t currently exist.”
The state’s brief to the Fourth Circuit made similar arguments.
“Plaintiffs’ constitutional and statutory claims are neither novel nor plausible, and they have offered no valid justification for deviating from settled law to consider their generalized partisan grievances and order proportional representation in the Electoral College,” the brief states.
The panel was comprised of U.S. Circuit Judges James A. Wynn Jr. and Henry F. Floyd, both Barack Obama appointees, as well as U.S. Circuit Judge Paul V. Niemeyer, a George H. W. Bush appointee. The judges did not give a timetable for a ruling.