Reynolds v. Sims Reaffirmed the Constitutionality of the Electoral College “Despite its Inherent Numerical Inequality”

December 16th, 2016

In the Los Angeles Times, Kenneth Jost writes that the electoral college is unconstitutional, and the Supreme Court should strike it down based on the “one person, one vote” principle from Gray v. Sanders and Reynolds v. Sims:

Even if the electoral college functioned as Hamilton envisioned, it still would be illegitimate. Its basic architecture flouts the principle that has defined elections for every other public office in the United States for the last 50 years: one person, one vote.

The Supreme Court established the principle in 1964, when it ruled that states cannot unevenly weight votes in choosing their officeholders. The 8-1 decision struck down a Georgia scheme that, much like the electoral college, gave voters in less-populated rural counties significantly greater power than voters in urban counties.

Justice William O. Douglas acknowledged the fact that the Georgia system was similar to what was set up in Article 2, but he still concluded that the impulse was unconstitutional — and un-American. “The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing — one person, one vote,” he wrote.

This argument, even on its own terms, is entirely wrong. Both Gray and Reynolds rejected efforts to apply the “one person, one vote” principle to the federal government. Renyolds dismissed the federal “analogy” with respect to the Senate.

We agree with the District Court, and find the federal analogy inapposite and irrelevant to state legislative districting schemes. Attempted reliance on the federal analogy appears often to be little more than an after-the-fact rationalization offered in defense of maladjusted state apportionment arrangements.

The system of representation in the two Houses of the Federal Congress is one ingrained in our Constitution, as part of the law of the land. It is one conceived out of compromise and concession indispensable to the establishment of our federal republic.[55] Arising from unique historical circumstances, it is based on the consideration that in establishing our type of federalism a group of formerly independent States bound themselves together under one national government.

Gray v. Sanders specifically stated that the analogy does not apply to the electoral college.

We think the analogies to the electoral college, to districting and redistricting, and to other phases of the problems of representation in state or federal legislatures or conventions are inapposite. The inclusion of the electoral college in the Constitution, as the result of specific historical concerns, validated the collegiate principle despite its inherent numerical inequality, but implied nothing about the use of an analogous system by a State in a statewide election. No such specific accommodation of the latter was ever undertaken, and therefore no validation of its numerical inequality ensued.”

Regardless of whether Reynolds v. Sims was correctly decided–a point Justice Thomas raised last term–Justice Douglas’s opinion provides no support for the proposition that the electoral college is unconstitutional. Indeed, for the reasoning of such a suit to succeed, the Court would have to reject the key limiting principle of Reynolds.

Update: I submitted the follow Letter to the Editor of the L.A. Times. I hope they run it.

Kenneth Jost argues that the electoral college is unconstitutional. [“The electoral college has always been the wrong way to choose a president,” op-ed, Dec. 16]. The only support Mr. Jost can muster for his remarkable argument is the Supreme Court’s decision in Reynolds v. Sims. In that 1964 case, the Justices invalidated Georgia’s apportionment scheme—where districts with greater population were underrepresented—finding that its design violates the principle of “one person, one vote.” Mr. Jost asserts that the two-century old electoral college’s “basic architecture flouts” the “principle” from this 50-year old case. As a threshold matter, the longevity of this practice is a solid indication that it is lawful. Citing Chief Justice Marshall’s decision in McCulloch v. Maryland, the Justices recently recognized that the “longstanding ‘practice of the government,’ can inform this Court’s determination of ‘what the law is’ in a separation-of- powers case.” But even on its own terms, Mr. Jost’s argument fails. In Reynolds v. Sims, Justice Douglas specifically rejected the argument that the electoral college falls under the “one person, one vote” principle. Quoting from his earlier decision in Gray v. Saunders, Justice Douglas explained that “despite” the “inherent numerical inequality” of the electoral college, its “inclusion . . . in the Constitution, as the result of specific historical concerns,” did not place it under the same regime as the states. Mr. Jost’s argument is not supported by text, history, or precedent.