The Electoral College with a limit of 538 electors imposed by The Permanent Apportionment Act of 1929 is unconstitutional because a person’s vote in Wyoming, for example, is 3.6 times more valuable than a person’s vote in California. Moreover, the right to vote of African-Americans has also been unconstitutionally abridged because predominantly white States with low populations have more electors per person than larger, more diverse States. In other words, a white person’s vote in Wyoming is worth more than an African-American’s vote in California.
So what is The Permanent Apportionment Act? The number of representatives in the House increased based on population growth until 1911. Then the required reapportionment of the House was delayed for 10 years after the 1920 census. Congress was deadlocked because from 1910 to 1920 there was a substantial population increase in industrial areas while there was no population growth in rural States. If the numbers of representatives increased, rural States would see a reduction of relative representation. To break this deadlock, Congress passed The Permanent Apportionment Act of 1929, which capped the number of representatives at 435.
So why is the Electoral College unconstitutional? To begin with, a limit of 435 members of the House appears nowhere in the Constitution. In fact, the Constitution requires that the number of representatives increase with the population. Article I, Section 2 provides the “actual Enumeration” of representatives “shall be made” every ten years and the 14th Amendment commands that, “Representatives shall be apportioned among the several States according to their respective numbers.” If the number is set at 435, the “actual Enumeration” is not adjusted every ten years and the “actual Enumeration” is not apportioned according to their respective numbers. A cap on the number of representatives combined with the requirement that each State get at least one representative makes it impossible to apportion representatives according to their numbers. If California received the same apportionment as Wyoming, California would have 66 representatives instead of 53. As a result of the 435 limit and the distribution of the African-American population, the more diverse populous States have fewer electors per person than the less populous white States. This violates the Equal Protection Clause, the requirement that representatives shall be apportioned according to their respective numbers, the explicit provision in the 14th Amendment that protects the right to vote in presidential elections, and the 15th Amendment.
It is clear from the Supreme Court’s landmark Equal Protection cases Gray v. Sanders and Reynolds v. Sims that the Electoral College does not pass constitutional muster. In Gray v. Sanders, the Court held that dilution in the weight of votes was unconstitutional. After concluding that the 15th and 19th Amendments prohibit a State from overweighting or diluting votes on the basis of race or sex, Justice Douglas stated “How then can one person be given twice or ten times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? All “who participate in the election are to have an equal vote—whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment…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.”
As Chief Justice Warren wrote in Reynolds v. Sims, “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Moreover, “Legislators represent people, not trees or acres…And, if a State should provide that the votes of citizens in one part of the State should be given two times…the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted…. Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race, or economic status.”
In sum, the Electoral College as modified by The Permanent Apportionment Act cannot be reconciled with Article I, Section 2, the 14th and 15th Amendments and Supreme Court cases interpreting the Equal Protection Clause.
Edward Dietrich is a lawyer with a degree in Government-Economics from Skidmore College and a J.D. from The George Washington University Law School. He also is the author of the website, Facebook page, and Twitter account World War and Holocaust Remembrance, wwahr.com and @WWAHRcom.