Winner Take All Electoral College System in South Carolina Is Constitutional

More questions have been raised about the legitimacy of this year's election than at any time in modern history. The Electoral College itself has faced political and popular scrutiny like never before. Many Americans take issue with the fact that it isn't the American people who directly elect a President by popular vote. Rather, the votes that count are through "Electors" who don't appear on the ballot. In presidential elections, voters in most states actually vote for a slate of nameless Electors who have already pledged to vote for a specific candidate.

Winner-Take-All Approach

States realized early that a unified slate of Electors gave them the greatest influence in electing a President. By the end of the Civil War, all states had shifted to a winner-take-all Electoral College system. Currently, only Maine and Nebraska vary slightly from that approach.

That is why our current election process focuses on "winning states" and why more populous swing states, such as Ohio and Florida, end up being the focus of so many presidential elections. The number of Electors equals the number of that states' Senators and members of Congress. A candidate who can win states with the greatest number of Electors has an advantage. Meanwhile, voters who back the minority party in states that are historically "blue" or "red" can feel as if their vote is discarded in the election of a President.

Residents Challenge South Carolina's Electoral College System

South Carolina is one of the 48 states with a winner-take-all system of electoral college voting. A group of South Carolina residents challenged South Carolina's electoral college system, arguing before the Fourth Circuit Court of Appeals it violates the Fourteenth and First Amendments to have a unified slate of Electors.

The plaintiffs were not arguing that the Electoral College itself is unconstitutional (the Founders were clear in establishing the Electoral College in the Constitution). Instead, the plaintiffs argued that South Carolina's implementation of the Electoral College violates the Equal Protection Clause and the "one person, one vote" principle.

For example, the plaintiffs argued that the Black population in South Carolina is typically unable to vote for their preferred candidate in the Electoral College. This system, the challengers argued, improperly magnifies the influence of the political plurality and ignores communities that prefer a minority candidate. In effect, it renders Black votes less meaningful.

An alternative system would vote on Electors by districts so that regions and communities would have a greater say in the election of the President. They sought a court injunction to prevent South Carolina from using a winner-take-all system in the 2020 election.

States Have Wide Latitude in Electoral College Process

Judge Paul Niemeyer, writing for the majority, disagreed. The Founders gave states wide latitude to decide how to implement their own system of Electoral College voting. And sure, Judge Niemeyer reasoned, South Carolina's system has "the effect of rejecting the outcome sought by voters supporting minority parties. But that is the reality of any democratic system."

Nor did it violate the people's right to freedom of association. While the current system may reduce the motivation for minority parties to conduct fundraising and achieve other political goals, the system does not prevent them from doing so, which is what the First Amendment protects.

Judge James Wynn dissented, arguing that four million votes have been "counted only to be discarded" in South Carolina under the winner-take-all approach. As this case came to the Fourth Circuit at the summary judgment stage, Judge Wynn argued that the arguments are plausible, and at the very least deserve “an opportunity to be heard.”

While questions of voter suppression, mail-in voting fraud, and foreign interference continue to swirl around this election, the Electoral College system in South Carolina will stay the same. Like it or hate it, at least it's been consistent. 

Related Resources

• How Does the Electoral College System Work? (FindLaw's Voting Rights)
• Fourth Circuit Says Climate Lawsuit Against Energy Companies Belongs in State Court (FindLaw's U.S. Fourth Circuit)