Early this month, on February 21st, Bill Weld filed to sue the state of Massachusetts to overturn the winner-take-all system for assigning electoral votes in Massachusetts. This system is used in 48 states, including Massachusetts. The suit claimed:
“The predominant method in America for counting votes in presidential elections violates the United States Constitution; it also distorts presidential campaigns, facilitates targeted outside interference in our elections, and ensures that a substantial number of citizen voters are disenfranchised when their votes are tallied in early November, only to be discarded when it really counts in mid-December”
It is believed that Bill Weld will be using the Equal Protection Clause of the XIV. Amendment to overturn this rule in Massachusetts, and as a result, America. The Equal Protection Clause is written as follows:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Based on the current “winner takes all” system in America with the electoral college, it is possible for over 50% of Americans votes to not be represented when the electoral college casts its votes in December. With a re-examination of the 2016 Presidential Election this trend is very clear, based on data provided by Politico.
In 2016, if an at-large by state electoral system, over the winner takes all system, was enacted no candidate would have gotten 270 electoral votes and they would have been distributed as such: 262 for Clinton/Kaine (D), 258 for Trump/Pence (R), 15 for Johnson/Weld (L), 5 for Stein/Baraka (G), and 1 for McMullin/Finn (I). If the electoral votes had been distributed, although unrealistically, nationally, then 31 electoral votes would have been awarded to third party candidates. Due to the winner take all system, Donald Trump won the presidency with 306 electoral votes (56.88%) despite winning only 46.09% of the popular vote.
In the winner take all system only the ticket with the most votes can get the electoral votes. As a result, in 2016 only 74,211,186 voters (57.60%) were represented at the electoral college. This means that 42.6% of votes had no effect, and essentially, didn’t matter in the election. With the implementation of the system Bill Weld is fighting for in Weld v. Massachusetts, only 5,335,130 (3.89%) of votes in the 2016 election would have not been represented in the electoral college.
Because of the winner-take-all system every person’s vote is not equal, thus their votes, and in turn their political voices, are not equally protected as guaranteed by the XIV. Amendment.
The day after he filed suit, Bill Weld tweeted the following:
In the upcoming case the defendants of the law is Governor Charlie Baker (R), Bill Weld’s former Lieutenant Governor, and the state Attorney General Maura Healey (D). This case is one of the most important cases prior to the 2020 Presidential Election, almost just as important as the gerrymandering cases that are reaching the Supreme Court, as well as State Supreme Courts, prior to 2018 Midterm Elections. If the winner-take-all system is overturned, alongside the gerrymandering cases, the two-party duopoly will have a realistic chance of ending. If Bill Weld is successful, Weld v. Massachusetts will revolutionize America’s constitutional republic for hundreds of years, and potentially, forever.