Williams v. Virginia State Board of Elections

• Decision Date: 16 July 1968
• Docket Number: Civ. A. No. 4768-A.
• Citation: 288 F. Supp. 622
• Court: U.S. District Court — Eastern District of Virginia
• Parties: J. Harvie WILLIAMS et al., Plaintiffs, v. VIRGINIA STATE BOARD OF ELECTIONS, etc., et al., Defendants.

288 F. Supp. 622

J. Harvie WILLIAMS et al., Plaintiffs, v. VIRGINIA STATE BOARD OF ELECTIONS, etc., et al., Defendants.

Civ. A. No. 4768-A.

United States District Court E. D. Virginia, at Alexandria.

July 16, 1968.

Howard S. Spering, Washington, D. C., Robert L. Montague, III, Alexandria, Va., for plaintiffs.

Robert Y. Button, Atty. Gen. of Virginia, Richmond, Va., Robert D. McIlwaine, III, Richard N. Harris, Asst. Attys. Gen. of Virginia, Richmond, Va., for defendants.

Before BRYAN, Circuit Judge, and LEWIS and MERHIGE, District Judges.

ALBERT V. BRYAN, Circuit Judge:

Presidential electors provided for in Article II of the Constitution of the United States cannot be selected, plaintiffs charge, by a statewide general election as directed by the Virginia statute.¹ Under it all of the State's electors are collectively chosen in the Presidential election by the greatest number of votes cast throughout the entire State, instead of choosing them by Congressional districts, one elector for each, exclusively by the votes cast in that district.

Unfairness is imputed to the plan because it gives the choice of all of the electors to the statewide plurality of those voting in the election—"winner take all"—and accords no representation among the electors to the minority of the voters. An additional prejudice is found in the result of the system as between voters in different States. We must reject these contentions.

The Constitution provides for the election of the President and Vice President by electors in these words:

Article II

"Section 1. * * * He the President shall * * * together with the Vice President * * * be elected, as follows:

"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress; * * *."

Article XII Twelfth Amendment

"The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; * * *."

Plaintiffs' proposition is advanced on three counts: (1) the intendment of Article II, Section 1, providing for the appointment of electors is that they be chosen in the same manner as Senators and Representatives, that is two at large and the remainder by Congressional or other equal districts; (2) the general ticket method violates the "one-person, one-vote" principle of the Equal Protection Clause of the Fourteenth Amendment, i. e., the weight of each citizen's vote must be substantially equal to that of every other citizen. Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 9 L.Ed. 2d 821 (1963); Wesberry v. Sanders, 376 U.S. 1, 18, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); and (3) the general ticket system gives a citizen in a State having a larger number of electors than Virginia the opportunity to effectuate by his vote the selection of more electors than can the Virginian. On these bases the plaintiffs pray for a declaration that the Virginia statute is invalid and for an injunction against its use by the defendant State election officials.

The Code of Virginia, 1950, Section 24-7 directs:

"§ 24-7. Electors for President and Vice President.—There shall be chosen by the qualified voters of the Commonwealth, * * * at elections to be held on the Tuesday after the first Monday in November in each fourth year after 1948, so many electors for President and Vice President of the United States as this State shall be entitled to at the time of such election under the Constitution and laws of the United States. Each voter may vote for one elector from each congressional district of the State, as the same shall be constituted and apportioned for the election of representatives in the Congress of the United States from this State at the time when such election shall be held, and for two electors from the State at large; * * *."

Congress has prescribed that henceforth the Representatives from each State, when more than one, be chosen by districts, 2 U.S.C. §§ 2a, 2c. Similar provision is made by Article IV, Section 55 of the Constitution of Virginia as well as by statute, Code of Va., Section 24-4. Virginia has ten Representatives besides two Senators. Save to analogize the selection of electors with the selection of Senators and Representatives the plaintiffs make no point, of course, against the election statewide of the two electors corresponding to the Senators. Our discussion, therefore, will refer solely to those electors who are the counterparts of Representatives in Congress.

Throughout, it must be kept constantly in mind that the wisdom of the continued use of the electoral college for choosing the President and Vice President is not at issue here. As here posed the question recognizes the predominance of that Constitutional design. The inquiry is whether Article II, Section 1 considered alone or with Constitutional safeguards, permits the selection of the electors by a general election in which the entire electorate of the State may collectively vote at one time upon all of the electors.

Plaintiffs are ten in number, one from each of the Congressional districts of Virginia, and all of them qualified to vote in their respective districts in the coming fall election. Their brief describes their purpose:

"This action is brought to protect and restore the full benefit of plaintiffs' right to vote. Plaintiffs seek to elect one presidential elector in, and solely by a plurality of the votes cast in, their own respective Congressional districts. They seek thereby to prevent the dilution of their own votes, and the denial of any possibility of their having any electoral representation when not part of the state-wide plurality, that now result from counting the votes of all voters throughout the state in determining the plurality of votes for the election of the one presidential elector that has been apportioned to the people resident in their respective Congressional district by virtue of their numbers. Thus, they seek to prevent the votes of residents in other Congressional districts of Virginia from being counted in determining the plurality of votes for the election of one presidential elector in, by, and from their own respective Congressional district."

We think they have the requisite standing to maintain the suit they plead; that it is an acceptable class action; that the defendants, save the Governor of Virginia, are proper parties, as the officials entrusted with the conduct of the election of presidential electors; and that this court has jurisdiction of the complaint. Flast et al. v. Cohen, Secretary of Health, et al., 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (June 10, 1968); 28 U.S.C. § 1343; 42 U.S.C. § 1983; 42 U.S.C. § 1988; Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L. Ed.2d 663 (1962); Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); F.R.Civ.P. 23. Because of its special circumstances, we do not think Penton v. Humphrey, 264 F.Supp. 250 (S.D.Miss.1967 —3-judge court) dictates rejection of the present action; nor do we believe on reading of the pleadings in State of Delaware v. State of New York, 385 U.S. 895, 87 S.Ct. 198, 17 L.Ed.2d 129 (1966), cited by the defendants, that it forecloses entertainment of plaintiffs' plaint.

I. The first argument of the plaintiffs is that the college of electors was envisaged by the Constitution as delegates of the people—although to exercise their own judgment—in naming the President and Vice President, thus according the people a truer representation in the choosing of these officers. The electors, they aver, were to be as directly and immediately representative of the people as the college method permitted.

To this extent and to this end, a voice in selection of the President and Vice President, the argument is, was avouched the people in the same measure as is assured them in picking members of the legislative branch of the Federal government. If, continue plaintiffs, Representatives in Congress are—in fairness to the people—chosen by districts, so should be electors.

Primary citation for this position is the parallelism drawn by the Constitution in the numerical correspondence of electors with the State's total of Senators and Representatives. This conformity is marked also by the requirement of varying the number of electors as the number of Representatives change.

Admittedly, the designation of all presidential electors by the ballot of all who voted throughout the State does not produce a group as representative of the people as would an election of one elector by each district alone. For instance, as the plaintiffs demonstrate, while in 1960 the popular vote in Virginia for the Republican nominee was only 52.4%, and the Democratic nominee received 47%, of the vote cast, the Republican was credited with 100% of Virginia's electoral votes and the Democrat with none. With the popular count reversed, the candidates in 1964 were favored and unfavored in electoral votes by the same formula. If plaintiffs' contention for single-elector district voting had prevailed, it would have been possible for the Democratic and Republican parties to have had proportionate representation among Virginia's electors in the same degree as they shared in the statewide tally.

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