In lawsuit, activists say Texas' winner-take-all approach to the Electoral College is discriminatory

A lawsuit filed in federal court Wednesday calls on Texas to treat voters “in an equal manner” during presidential elections.

Voters line up at an early voting station in Houston on Oct. 24, 2016. Poll workers said the lines were much longer than normal for early voting. Michael Stravato for The Texas Tribune

Saying Texas' current practice is discriminatory, a group of Hispanic activists and lawyers has sued the state in hopes of blocking it from awarding all of its Electoral College votes to one candidate during presidential elections. 

The lawsuit filed in federal court Wednesday calls on Texas to treat voters “in an equal manner” by abolishing that “winner-take-all” approach, which all but two states use. The suit, filed by the League of United Latin American Citizens and a coalition of Texas lawyers, says that approach violates the U.S. Constitution and the 1965 Voting Rights Act. It's just one of many pending voting rights lawsuits arguing that Texas, which regularly votes Republican, has illegally discriminated against voters of color. 

Similar Electoral College lawsuits were also filed Wednesday in Republican-dominated South Carolina and Democratic-leaning Massachusetts and California. The South Carolina suit also alleges a Voting Rights Act violation. 

At the suit’s core is the doctrine of “one person, one vote,” rooted in the 14th Amendment. The plaintiffs argue that the winner-take-all system is unconstitutional because Texans who favor losing candidates “effectively had their votes cancelled,” while voters who favor winning candidates see their influence “unconstitutionally [magnified].” The suit also alleges that winner-take-all violates the First Amendment.

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In the 2016 presidential race, Republican Donald Trump received 52.2 percent of the Texas popular vote, but won all of the state's 38 electoral votes. 

Lawyers have asked the court to declare the winner-take-all approach unconstitutional and set “reasonable deadlines” for state authorities to propose an alternative system.

The winner-take-all method is nearly ubiquitous — only Maine and Nebraska use other systems. If the plaintiffs were to prevail in their cases, the potential impact on presidential elections would be huge. But it's unclear how far the cases will go.

Texas has come under fire more than most states for its treatment of voters of color. The state is currently embroiled in pending litigation in several voting rights lawsuits, including cases challenging its legislative and congressional districts, one seeking to overturn its voter ID laws and another questioning its method of electing statewide judges. All of those suits argue that Texas has disadvantaged minority voters.

“Texas has a long and well-documented history of discrimination against Hispanics and African Americans in voting, voter registration, and other forms of participation in the political process,” the lawsuit argues. “The WTA system of selecting Electors is consistent with that history and works in the same way as a at-large voting district.”

Leading the charge is David Boies, a high-profile national attorney who has litigated election cases as prominent as Bush v. Gore, the case that challenged Al Gore’s loss in the 2000 election. Boies reportedly also worked to shield Harvey Weinstein as the movie mogul harassed and assaulted scores of women over a period of decades.

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