The Constitution’s unequal protection of voters across America

Many people in the United States of America, particularly in California, Texas, Mississippi and South Carolina are denied their constitutional right of “Equal Protection” every four years when they vote for president. Their vote simply has no weight and is, for all intents and purposes, ignored.

That’s because of (1) where they live and (2) the color of their skin, and (3) what party they vote for and (4) if their choice loses the state.

In particular, California, with 40% of its population Hispanic (15.4 million people) lacks “equal protection” for Republican voters in general but specifically for Hispanic Republicans – a growing number every election. They throw their vote for President away because the state is so Democrat that even though millions of Californians vote Republican, their vote doesn’t count in a presidential race. That’s because California awards all its 54 presidential electoral votes to the winner, “winner takes all.”

President Biden took all of California’s electoral vote – 54 votes – with 64% of the vote and Trump received nothing for his 30%. The same was true with all who voted for George W. Bush (2000 & 2004), John McCain (2008), Mitt Romney (2012), Donald J. Trump 2016 and Trump again in 2020.

“Winner takes all” insults the 14th Amendment’s constitutionally demanded “equal protection.” The 48 states that award “winner takes all” electoral votes effectively disenfranchise millions of Americans from basically having any say in who is president. Millions of Republicans, especially Hispanic Republicans, in California are totally disenfranchised by “winner takes all.”

The reverse of California is true in Texas, where most of 11-plus million Hispanics vote Democrat and where Republicans usually win the presidential vote. Texas Democrats watch their votes being “counted”  but not counting for anything as they get nothing for losing and the winner “takes all.”

Republican Hispanics in California and Democrat Hispanics in Texas are literally skewered by the Constitution’s electoral system because of “winner takes all.” The same is true of Black voters in Mississippi (37.8%) and South Carolina (26.3%) where most Blacks vote Democrat for President while most white voters dominate these two states with unbeatable Republican votes.

Question: What is constitutional “equal protection?” Those words are the last fourteen of the 14th Amendment to the Constitution; the amendment was ratified in June 1868.  They are: no state can “…deny to any person within its jurisdiction the equal protection of the laws.”

History shows us that “equal protection” did not always exist where federal troops weren’t based after the Confederate forces surrendered in 1865. A few    years later, the 1876 Presidential popular vote was won by Democrat Samuel Tilden. However, 20 electoral votes were protested by Republicans because Blacks throughout the south were harassed and/or killed to prevent their voting.

As the Constitution didn’t/doesn’t outline how to solve electoral problems like this, Congress stepped in and eventually made a deal to withdraw Union occupation troops from  the South, as the troops left, so did “equal protection” for millions of former slaves and their families.

In 1896, an all-white male Supreme Court opened the legal gates to unequal constitutional protection by ruling that segregated Black people riding in railroad cars identical to all-white railroad cars were equally treated. That treatment, “separate but equal” became a heavy burden on millions of Americans for almost a century.

“Like many constitutional provisions, the Equal Protection Clause continues to be in flux,” explains the Constitution Center.

Despite decades of different views expressed by the Supreme Court on “equal protection” in 1896 it began to drastically change with Brown v. Board of Education (1954) on segregation and the “one man, one vote” cases in 1962 and 1963 that ruled a vote’s weight should not be affected by where one lives.

None of those conditions exist in our electoral system, a system developed by compromise 237 years ago. The system must be changed so that a vote here is the same as a vote there.

Today a vote  for president doesn’t carry the same weight as a vote for congress. A congressional district has to be drawn based on equal population. Thus a vote for a congressperson from Wyoming has the same weight as a vote for a congressperson in California or New York.

Changing the electoral system has been tried before, many times. It is difficult because it is embedded in the Constitution. That makes change hard but by changing how electoral votes are allocated by states, it is possible without a constitutional amendment. The Constitution does not specify how the votes are allocated.

Simply put, a state legislature may allocate electoral votes by percentage or by congressional district; by making such a change we can choose a president with votes that count even if for the loser.

One person, one vote.

Raoul Lowery Contreras is a U.S. Marine veteran, political campaign consultant, author and editorialist for newspapers and magazines and hosts the Contreras Report on YouTube