Court upholds Texas’ winner-take-all system of electoral votes for president

By Chuck Lindell

Austin American-Statesman

AUSTIN, Texas — Texas’ winner-take-all system of allocating electoral votes for president is constitutional, a federal appeals court ruled Wednesday.

The League of United Latin American Citizens and a group of voters filed suit in 2018 to strike down the winner-take-all distribution as a violation of the one-person, one-vote standard that renders millions of Democratic ballots meaningless in the race for president.

Texas has 38 electoral votes, the second most in the nation, and a majority of state voters have backed the Republican nominee in the past 10 elections.

The challenge sought to divide the state’s electoral votes based on the percentage of support presidential candidates receive in the general election.

But the 5th U.S. Circuit Court of Appeals rejected arguments that the winner-take-all method — in place since Texas joined the Union in 1845 and employed by 47 other states — infringes on the right to cast a meaningful ballot and nullifies votes submitted by Texas Democrats.

Writing for the three-judge panel, Judge Jerry Smith said the First Amendment right to associate and advocate does not guarantee that “speech will persuade or that advocacy will be effective.”

“Democratic elections necessarily result in winners and losers. The frustration of losing, however, does not violate the Constitution,” he wrote.

Smith also rejected arguments that the Texas system dilutes votes and violates the right to cast an effective vote.

“The plaintiffs don’t allege infringement of ballot access. Nor do they contend that they were unable to cast a vote for their preferred choice,” Smith wrote. “To the contrary, all votes were weighted equally, and all eligible voters were able to vote for their preferred candidates.”

The panel, which included Judges James Dennis and Carl Stewart, also rejected arguments that the winner-take-all system gives candidates an incentive to ignore Texas to focus on a handful of swing states, further rendering Texans’ “votes and voices” meaningless.

“There is a critical distinction between a system that diminishes voters’ motivation to participate and one that burdens their ability to do so,” Smith wrote. “Although (winner take all) may indirectly decrease the incentive of members of perennially losing political parties to vote, it does not hinder their actual ability to vote.”

Smith was nominated to the court by GOP President Ronald Reagan, while Stewart and Dennis were nominated by President Bill Clinton, a Democrat.

Their ruling upheld a U.S. District Court ruling that dismissed the lawsuit last year.