Texas ‘Winner-Takes-All’ Election Challenge Fought at Fifth Circuit

NEW ORLEANS (CN) – An attorney representing the League of United Latin American Citizens told a panel of three Fifth Circuit judges Thursday the “winner-take-all” electoral voting method used in Texas and 47 other states across the U.S. negates votes cast by minority voters.

Attorney Amy Mauser asked the judges to reverse Senior U.S. District Judge David Ezra’s February 2019 order granting the state of Texas’s motion to dismiss, and to remand the case for reconsideration.

Voters use electronic voting devices at the Centerpoint Plaza in Aurora, Colorado, on Nov. 6, 2018. (Amanda Pampuro/CNS)

Each judge on Thursday’s panel appeared cranky during what was the first of four hearings on a morning of heavy rain that followed the torrential rain and high winds that swept through the Big Easy on Wednesday and sent temperatures plunging 20 degrees into the 50s.

U.S. Circuit Judge Carl E. Stewart, a Bill Clinton appointee, directed Mauser to “listen to the question and answer the question asked,” after Mauser evidently answered a series of other questions put forth by the judges in an indirect manner.

In response to this, and in quick succession, Mauser laid out her argument. She said it is necessary for this electoral issue to be decided in court and that the size of voting districts must be considered.

“Even a system adopted for a neutral purpose can be maintained for a discriminatory one,” Mauer said, emphasizing that whatever system is in place must be carefully chosen and regarded.

Mauser said that the current two-step voting process – where citizens go to the polls in early November and pick the candidates of their choice, and in turn the electoral delegate goes to the polls in December and chooses the most popular candidate, leaving all the previous votes behind and of no influence over the final vote – effectively negates millions of minority votes each election cycle.

In such a system, “plaintiffs are represented zero percent of the time,” Mauser said.

But Matthew Frederick, representing Texas and its governor, said plaintiffs have not brought any claims alleging discriminatory intent.

Frederick said the plaintiffs have said they intend to expand a claim for “one person, one vote” but they have not so far.

He also argued Judge Ezra was correct to dismiss the lawsuit and said the truth about voting is the “opposite of what plaintiffs claim: ballots are counted equally.”

Furthermore, Frederick argued the “winner-take-all” system isn’t a partisan system. He said the plaintiffs’ theory is that the system for electing the president is flawed when, really, it is not.

During rebuttal, Mauser said the Fifth Circuit’s attention to this issue is so important because “the only branch of the government that can review this [voting issue] is the courts.”

She reiterated that “the system is designed to cancel out the votes of minority voters.”

Thursday’s appeal is one of four involving the same issue. One of them, filed by voters in California, will be taken up by the Ninth Circuit in March.

Outside the courtroom after the hearing, Mauser reiterated this is an issue of canceling out minority votes and is a nonpartisan issue.

U.S. Circuit Judges Jerry E. Smith, a Ronald Reagan appointee, and W. Eugene Davis, an appointee of Gerald Ford, joined Judge Stewart on the panel. They did not indicate how or when they will rule.

This case stems from a lawsuit filed in February 2018 and dismissed the following February.

In his order dismissing the case, Judge Ezra wrote that by using numbers advanced by plaintiffs in their complaint, in 2008 and 2016 Hispanic voters who voted for Republican candidates constituted roughly 16% of the voting electorate, nearly twice the margin by which the Democratic candidate lost the 2016 presidential election in Texas.

“If nearly 40% of Hispanic voters had not voted for the Republican candidate, the combined strength of minority voters and the large number of white ‘crossover’ voters would have been able to carry the presidential election in Texas,” Ezra said, “challenging the assertion that whites vote as a legally significant bloc.”

Ezra concluded: “The facts alleged by plaintiffs, therefore, strongly implicate the conclusion that the relevant bloc frustrating plaintiffs’ election success is not whites but Republicans.”

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