Winner-Takes-All Electoral Structure Faces Challenges

Civil rights activists are challenging the legality of the winner take all method of allocating US presidential electoral college votes in California, Massachusetts, South Carolina, and Texas, claiming the practice violates the constitutional right to an equal vote. Joining me as election law expert Josh Douglas, a professor at the University of Kentucky Law School, the winner take all system describes itself basically the Canada. Who wins the most popular

votes in the state gets all the electors. Josh, why do the challengers say this system is unconstitutional? Well, thanks, June.

I think they're saying that the system violates the principle of one person, one vote, that ideal that everyone's vote is worth the same, And their argument is that if you're allocating multiple electoral college votes in a state based on winner take all, than anyone who voted for the losing candidate has their vote worth nothing, and everyone who voted for the winning candidate gets all of the spoils all the electoral college votes in that state. On its face,

it would seem fairer to allocate the electors. Why do forty eight states use this winner take all system? Well, the Constitution leads it up to the states to decide how to allocate their electoral college votes. Um. And you know, historically at the founding some states even just had the legislature itself decide how to allocate or who who to

award its electoral college votes. Too. So it's truly historical practice that has been occurrent ring for in most places since the beginning of our country and the beginning of the use of the electoral college, that states have done this. As you noted, uh, states do so. Two states actually allocate by district. Um. So it's just a long historical practice. The lawsuits were filed in two states seen as solidly

blue and too steen as solidly read. Why that choice of defendants, Well, the challenges are certainly trying to make the argument that this is not a partisan push. They're not trying to favor one side or the other by selecting two predominantly red states to prominently blue states, or you know, states that the Democrats have typically one, or

the Republican nominee is typically one. What they're trying to show is that anyone who lives in a state where the one candidate or one party's candidate always wins systematically has their votes dilute or their value of their vote not worth anything. And by doing it on both sides, I think they're trying to make a push that this is a problem that affects the system as a whole,

not just one political party. There's a possibility the courts will rule in different ways, and whatever the outcome, it will surely go to the Supreme Court. Is there any way this issue will be decided by presidential elections? I think it's possible if UM the courts act quickly. I mean, it's got to go through the entire court system, but that's ultimately the challenger's goal here is to get this

issue before the U. S. Supreme Court. Now, I do think it's possible that UM the challenges could lose in all four of the states, in which case the Supreme Court would not necessarily take it up. But they're hoping to get at least to win and one of them to create a split among the courts and and increase likelihood that the Supreme Court would take the issue. So you see this as an uphill battle. I do think

it's somewhere of an uphill battle. Um in part, there's a case from I believe this thankteen sixty nine where the Supreme Court summarily affirmed a lower lower court, a three judge panel um district court, that had rejected a similar challenge out of Virginia. And so although the Supreme Court didn't speak directly on the issue, there's at least some precedent that they summarily summarily affirmed a decision that rejected a similar challenge. So they've got at least that

hurdle to get over. Maine and Nebraska are the only states that don't follow this system. What system do they use and is it better? So they allocate a electoral college vote for each congressional district, and then two electoral College of votes go statewide for the statewide winner, and that tracks the number of electors that each state receives. Each state receives the number of electors equal to the member numbers of Congress they have, UH and then adding

to for members of the Senate. UM, and so Maine in Nebraska split it up that way. Whether it's better or not is really a question of political philosophy. UM. It's certain does not raise the same kind of one person, one vote concerns that the challengers here are raising. But I think their ultimate goal is is trying to UH change the system so that people's value of their votes seems to make more of a difference. Will there be some a lot more attention to this because of the

star power involved. The lawyer leading the litigation is David Boys, who is one of the best known lawyers in the country and also represented al Gore when he won the popular vote. Yeah, and and the other person really behind this is a professional Gary lessig Um from Harvard UM. I certainly think one of the main goals, or I don't know main, but one of the goals of the

litigation is to increase attention to the issue. You know, I think that they're often a lot of people who are pushing for this national popular vote plan for states to adopt the system where the national popular vote winner would win the presidency, and they say that that is even a better system at least lessig in a blog post that said, at um, and this is the next

best route, the litigation route he's taking. But I think the ultimate goal here is also to increase public understanding, and so perhaps other legislators would go ahead and move towards the national popular vote system. About forty five seconds here for the national popular vote system, would that face change that you have to have a change in the

constitution to do. The current plan is to get states to pass a law that says, regardless of who wins, our state will award our electoral college votes to the national popular vote winner. And so it's kind of a workaround of the electoral college. Now there's some constitutional concerns about that as well, but right now the plan is to go state by state. In about eleven states have

already passed that. We'll see what happens here. It comes up every time they're the four times that there has been a president elected who was not the winner of the popular vote. Thanks Josh. It's Josh Douglas, professed at the University of Kentucky Law School. Special Counsel Robert Mueller has filed new charges in the case against x Trump campaign chairman Paul Manafort and his former deputy, Rick Gates,

but they are under sealed. The one page document doesn't specify the nature of the charges or whether it expanded the case against both men or added others. They were indicted in October for money laundering and failing to register for political consulting work performed in Ukraine, joining me as Brad Moss, a partner at Mark Sade Brad. There has been a lot of activity in the Special Counsel's office lately and yet no leaks. How unusual is that cone

of silence? Well, it's been pretty impressive what Mr Mueller's office has pulled off here. We have been routinely and repeatedly shocked by what's come out and the fact that we knew so little about what was going to emerge from his office. No one, almost no one saw the indictments of the thirteen Russian national coming a week ago.

That came out of pretty much nowhere. And it's come on again and again where everybody has been speculating and what's going to happen but once we finally get some action, it's pretty much not what anybody else had known. Was that kind of oncurd This is pretty impressive on the part of the Special Counselce office. So, speaking of speculation, is this likely a superseding indictment replacing the previous indictment or Mueller's office has hinted at possible new charges in

a separate filing last week. What is this likely to be? Your best guess? Yeah, it's likely. I think you're ready. It's likely to have been a superseding indictment adding on additional charges, almost all certainly tax or money laundering type of charges that we were all that we were hearing about that there was a lot of media reporting about that.

Maybe Stemla's office just wasn't ready to bring when he filed the original indictment several months ago, but which they've now collected sufficient evidence to have brought up the grand jury and sought the superseding indictment, And the obvious purpose of doing it, particularly with respect to Mr Manafort, is to pressure him into making a plea agreement, into becoming a cooperating witness to find what else he knows about

what occurred. In the Trump campaign, if anything that would be relevant to Mr Mueller's overarching mission, which is to investigate Russian interference in the election. He certainly has put a lot of pressure on him with with the bail conditions, and it doesn't seem to be working. What would it take, with the amount of money that Manafort has to hire lawyers, great lawyers, and to fight these charges. It would take a lot, wouldn't it to get him to plead well.

The sixty four th dollar question is how much money does manafortuately have at this point. His loans are now all under scrutiny. Some of the charges, if we understand the supporting correctly, has to do with some of those most recent loans, a sixty million dollar loan that he

got during the course of the campaign. So how much money he truly has at this point, how much he can truly afford to put towards lawyers while still maintaining his standard of living, remains an open question, And I think that's going to be especially if Rick Gates pleads guilty possibly tomorrow, which is the assumption and speculation right now,

and start cooperating in a case against Mr Manafort. The question then it just becomes what kind of deal can Mr Manafort make to save himselves, to get the reduced charges as much as he can and avoid expending the rest of his life in prison as part of the cooperating redness with a special counsel. It's hard to know about manaforts wealth because everything that he's filed about it is under sal. If you look at the docket for his case, it's under seal, under seal. Under seal, you

almost can't get any documents there um. And the judge had made a complaint about that last week. But yet still more sealed filings. Why would this particular one be under seal? I mean, why would not come out with it and say we're we're doing a superseding indictment on him, and it could be tied to behind the scenes negotiations. We don't, We just don't know what the strategy was here. But but yeah, I noticed what the what the judge had said, and I was surprised by that as well.

The number of sealed filings here are rather odd. The fact that judge has not moved against them at this point is also somewhat surprising. But at the same time, without knowing what's contained within those filings without knowing the details of the justification that the work all kind of spinning our wheels here and speculating as to what it could be. There maybe somewhat garment reasons for this information

to remain under steel. Now you mentioned Rick Gates, and lawyers for Rick Gates are going to meet with the trial judge tomorrow and the request, the request that's on the table is to have his attorneys withdraw from the case. What the speculation is from several sources is that he is going to to plead. I think the Los Angeles Times was the first to to come out with that.

The attorney said in a February first submission, irreconcilable differences have developed with the client, which makes our effective representation of the client impossible. Could pleading be an irreconcilable difference or is this something that has nothing to do with a possible plea. It could be one or the other.

It could be part of the plea, but my assumption is it has more to do with the issue of funding and his ability to handle the bills and continue forward in a financial arrangement that the firm can you as acceptable. But even if it wasn't surely about money.

The idea that he's going to move forward with a plea deal that might be against the advice, the very strict advice of his lawyers, and they in every lawyer has a clause and their retainer agreement that they have the right to withdraw if the client refuses to heed their guidance and advice. That's understandable, the sense of if you don't want to listen to my guidance, then we can terminate this business arrangement and you can secure the

council who will agree with you. But my view, my role here is only to try to assist you and guide you. I am not bound to you beyond the strict terms of the retainer regrant. So it could just be the idea that they don't agree with his plea deal, which might ultimately be due to financial considerations more than anything else. It's it's a it's a puzzle behind a mystery behind the curtain, and I don't know how long it will take us to figure it all out. But

thanks as always for your help doing that. Brad. That's Brad Moss. He's a partner at Mark Say. Another thing, happening today is a former Donald Trump political advisor, Sam Nunberg, will be interviewed by the Special Counsel Robert Mueller investigating the Russian meddling today, according to a person familiar with the matter, and he has been told he is not a target of the investigation and there will be no

charges against him provided he does not lie. Coming up on Bloomberg Politics, Policy, Power and Law, civil rights activists are wishing back against states who use a winner take all electoral college system. Four states are being sued, but forty eight states use it. This is Bloomberg. Thanks for listening to the Bloomberg Law podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg.