On behalf of Texas Attorney General Ken Paxton and Governor Greg Abbott, Deputy Solicitor General Matthew Frederick today defended the time-honored Electoral College system at the U.S. Fifth Circuit Court of Appeals, arguing that Texas’s method of appointing presidential electors is consistent with the U.S. Constitution’s command that “each State shall appoint, in such Manner as the Legislature thereof may direct, a number of electors, equal to the number of Senators and Representatives to which the State may be entitled in Congress.” Texas appoints the State’s presidential electors on a winner-take-all basis to the presidential candidate who receives the most votes in a statewide election—a method that dates back to the first presidential election and that is used in all but two states today.
“Only an amendment to the Constitution can change or eliminate the stable and successful presidential election system designed by our Founders. The Electoral College has been in constant use since 1789, and the Constitution clearly allows states to appoint electors as directed by the Legislature,” said Attorney General Paxton. “Texas and the 47 other states that selected the winner-take-all method are operating in full compliance with the Constitution. This challenge to the Electoral College system is not just baseless, it threatens to destroy the framework of our election process.”
Nearly 50 years ago, the U.S. Supreme Court affirmed a decision rejecting the argument that the winner-take-all system is unconstitutional. One year ago, the U.S. District Court in San Antonio dismissed a lawsuit challenging the Electoral College system, finding that Texas’s method of appointing electors does not deny any person an equally weighted vote or deny any voter’s First Amendment rights of association or expression. The election process in Texas is free, fair, and lawful.