The Winner Takes All and Will Never Give it Up: The U.S. Supreme Court Must Protect Voters from the Electoral College

서지정보

· 발행기관 : 경북대학교 법학연구원
· 수록지 정보 : 법학논고 / 71호 / 61 ~ 81페이지
· 저자명 : ERIN E. MURPHY

초록

Among contemporary democracies, the method for electing the chief executive of the United States is an anomaly, with a history that is arguably rooted by inequity and an effect that disregards the choice of millions of voters every four years.
This result after this long is a feature and not a bug of this design, at least to whichever party is in control.
Perhaps this inequity is the reason that this election method is one of the only US governmental plans that has not been replicated by any other democracies worldwide or by any of the states within the US. The electoral college combined with the vast majority of states that use the “winner takes all” (WTA) system to elect a president every four years is not only undemocratic in practice, it is unconstitutional, as it deprives equal protection under the law to residents in the minority.
For decades, politicians and academics on both sides of the political spectrum have made arguments for a constitutional amendment to abolish or alter the Electoral College. This procedure could certainly be a solution to the inequity that minority voters endure, it is not the only path to take and it is not necessary to change the constitution to achieve equal protection. This is not a political issue, it is a constitutional one because the WTA deprives minority voters of their political capital.
The WTA system is not a constitutional mandate, but rather a creation of the majority of the states. The WTA method assigns all the Electoral votes to the winner of the popular vote in that state, regardless of the margin of victory. This results in the concentration of political power that does not represent the State’s voters and denies any voice whatsoever to minority voters within the State. This system is in contrast to the “one person, one vote” principle, which is well established in Fourteenth Amendment Supreme Court jurisprudence and therefore violates the fundamental constitutional right to vote.
There have been recent judicial challenges to the constitutionality of the method of determining Electors which have not survived the Circuit Courts, but the gravity and uniqueness of the situation necessitates that the Supreme Court review this issue. By reviewing these challenges and the disenfranchisement of voters in California, Massachusetts, South Carolina and Texas that have sought relief, the Supreme Court can protect the voting rights of millions without waiting for a political party that is in power to make the unlikelydecisiontochangethesystemthatgavethempower.
In this article, I will explore the history of the Electoral College and the WTA comparing it to other countries indirect election methods, explain the growing geographic inequity that continues to increase the unlikelihood of legislative action and summarize the recent Circuit Court cases. I will also put forth both a judicial and non-judicial plan to remedy the injustice created by these systems, while maintaining that judicial intervention is the appropriate remedy.

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