Delaware v. New York (1966)
Delaware v. New York (1966)
Delaware v. New York (1966)
v.
The STATE of New York, et al., Defendants.
No. 28 Original.
October Term, 1966.
July 20, 1966.
David P. Buckson
Attorney General
State of Delaware
Dover, Delaware
Robert G. Dixon, Jr.
Special Counsel
720 - 20th Street, N. W.
Washington, D. C. 20006
James C. Kirby, Jr.
Special Counsel
357 E. Chicago Avenue
Chicago, Illinois 60611
Of Counsel: Gosnell, Durkin & McGrath
John A. Gosnell
William J. Durkin
Henry J. Cappello
1225 Nineteenth Street, N. W.
Washington, D. C. 2003
COMPLAINT
The State of Delaware, and the people of the State of Delaware, by and through
David P. Buckson, the Attorney General thereof, bring this suit in equity against
each of the other states of the Union, and the District of Columbia viz., the State
of New York, the State of California, the State of Pennsylvania, the State of
Illinois, the State of Ohio, the State of Texas, the State of Michigan, the State of
New Jersey, the State of Florida, the State of Massachusetts, the State of Indiana,
the State of North Carolina, the State of Georgia, the State of Missouri, the State
of Virginia, the State of Wisconsin, the State of Tennessee, the State of Alabama,
the State of Louisiana, the State of Maryland, the State of Minnesota, the State of
Iowa, the State of Kentucky, the State of Washington, the State of Connecticut,
the State of Oklahoma, the State of South Carolina, the State of Kansas, the State
of Mississippi, the State of West Virginia, the State of Arkansas, the State of
Colorado, the State of Oregon, the State of Arizona, the State of Nebraska, the
State of Hawaii, the State of Idaho, the State of Maine, the State of Montana, the
State of New Hampshire, the State of New Mexico, the State of North Dakota, the
State of Rhode Island, the State of South Dakota, the State of Utah, the State of
Alaska, the State of Nevada, the State of Vermont, the State of Wyoming, and the
District of Columbia. (Defendants are named in descending numerical order
according to their respective numbers of presidential electoral votes.)
1.
This action is within the original jurisdiction of this Court under Article
III, Section 2 of the Constitution of the United States, and 28 U.S. Code,
Section 1251.
2.
Plaintiff sues in its own right, and also as parens patriae in behalf of the
voting rights, political equality, welfare, and prosperity of its citizens.
Each State of the United States, including Plaintiff by submission, is made
a party, along with the District of Columbia, which is a body corporate
created by Act of Congress to govern the territory constituting the seat of
the government of the United States, and which is vested with power to
sue and be sued by Section 1-102 of the District of Columbia Code.
(Hereafter the word state will also include the District of Columbia
unless otherwise indicated.) Defendants are joined pursuant to Rules 19(a)
and 20(a) of the Federal Rules of Civil Procedure. All parties participate in
the election of the President and Vice President and are equally interested
in the subject matter of this action and therefore must be made parties to it
if complete relief is to be afforded.
3.
Each State is required and entitled by Article II, Section 1 of the United
States Constitution (and the District, by Amendment XXIII) to appoint
presidential electors who, in turn, elect the President and the Vice
President of the United States. (Hereafter, when the terms presidential
election, presidential electors or electoral votes are used, the terms
will be intended to refer to the election of both the President and the Vice
President.) Each state is represented by as many presidential electors as it
has Senators and Representatives in both houses of Congress, and the
District of Columbia by the same number of electors as the smallest state.
The current allocation of electoral votes is as follows:
New York
43
South Carolina
California
40
Kansas
Pennsylvania
29
Mississippi
Illinois
26
West Virginia
Ohio
26
Arkansas
Texas
25
Colorado
Michigan
21
Oregon
New Jersey
17
Arizona
Florida
14
Nebraska
Massachusetts
14
Hawaii
Indiana
13
Idaho
North Carolina
13
Maine
Georgia
12
Montana
Missouri
12
New Hampshire
4.
Virginia
12
New Mexico
Wisconsin
12
North Dakota
Tennessee
11
Rhode Island
Alabama
10
South Dakota
Louisiana
10
Utah
Maryland
10
Alaska
Minnesota
10
Delaware
Iowa
Nevada
Kentucky
Vermont
Washington
Wyoming
Connecticut
DC
Oklahoma
TOTAL
538
The laws of each state provide for popular election of presidential electors
but allow each voter to vote for all of its electors on a general ticket, with
the result that all of a states electoral votes are cast as a unit for the
presidential candidate who wins a plurality of its popular votes. (These
state laws are listed in Exhibit A to this complaint.) This uniform state
practice of casting electoral votes by units is hereinafter referred to as the
state unit or state unit-vote system. Acts of Congress establish the date
for the appointment of presidential electors and regulate their subsequent
balloting and the counting of electoral votes by Congress, but the state unit
system is solely the result of state laws and is not required by the
Constitution or by any Federal law. As is herein-after more specifically
alleged, these laws and their combined effects operate to deny and abridge
6.
In its actual functioning the state unit system of electing the President and
Vice President is part of an integrated national process. The interlocking
and interdependent features of this national electoral system cause each
states methods to be affected by all others and give each state and its
citizens a real interest in the electoral methods of every state. Each states
electoral votes and each individuals popular vote are subject to
impairment, debasement, and dilution by the methods and procedures of
other states.
7.
In every election the state unit system abridges the political rights of
substantial numbers of persons by arbitrarily awarding all of the electoral
votes of their state to the candidate receiving a bare plurality of its popular
votes. This occurs without regard to the number of votes cast for an
opponent. 435 of the total of 538 electoral votes correspond to
Representatives and are allocated to states because of their numbers of
persons. Nonetheless, the state unit system frequently allows all of a
states votes to be cast for a candidate opposed by as many as 49% of its
voters. Votes cast for the losing candidate within a particular state are not
only discarded at an intermediate stage of the elective process but are
effectively treated as if they had been cast for an opponent. The barest
popular vote plurality and the overwhelming landslide are converted alike
into a unanimous state vote in the national election. This arbitrary
misappropriation of the elective power of substantial political minorities
denies them due process of law and equal protection of the laws in
violation of the Fourteenth Amendment.
8.
Our national two party system causes substantial numbers of popular votes
to be cast for the candidates of both major political parties in every state in
virtually every election. Attached as Exhibit C are state-by-state returns
for the last five elections, 1948-1964. They show that in each state both
parties nominees poll thousands or millions of votes in every election.
(Exclusion of Democratic Party electors from the ballot in South Carolina
in 1948 and in Alabama in 1960 are shown to be aberrations by returns
from those states in other years.) Therefore, in every election the state unit
systems arbitrary misappropriation of minority voting strengths, as
alleged in paragraph 7 above, denies due process and equal protection of
the laws to millions of Democratic and Republican voters throughout the
United States who are out-voted at the state level.
9.
accident produce distorted and inequitable results when the state units are
combined in the national electoral totals. This is illustrated by the distorted
effects of the popular votes cast for the Republican and Democratic
candidates in the adjoining units of Illinois and Indiana in the 1960
election. The candidates vote totals and percentages were as follows:
KENNEDY
Popular Vote
NIXON
Electoral Vote
Popular Vote
Electoral Vote
ILLINOIS
2,377,846
27
2,368,988
INDIANA
952,358
1,175,120
13
3,330,204
27
3,544,108
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Totals
%
(48.4%)
(67.5%)
(51.6%)
(32.5%)
Thus, the winner of a clear majority of the popular votes cast in the two
states received less than one-third of their electoral votes. In the adjoining
states of Virginia and Maryland, voters who supported Kennedy suffered a
similar fate:
KENNEDY
Popular Vote
NIXON
Electoral Vote
Popular Vote
Electoral Vote
MARYLAND
565,808
489,538
VIRGINIA
362,327
404,521
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Totals
928,135
894,059
12
(50.9%)
(40%)
(49.1%)
(60%)
Two more recent elections illustrate the extreme distortions of the popular
vote affected by the state unit system and dramatize its risk of electing
minority presidents. In 1916, a shift of 1,904 votes for Hughes in
California would have awarded its 13 electoral votes to him and resulted
in his election even though Wilson would have remained the national
electorates choice by more than 587,000 votes. In 1948, a shift of 29,294
votes in California, Illinois, and Ohio would have elected Dewey by two
electoral votes, although Truman would still have had a national plurality
of more than 2,077,000 popular votes.
12.
The state unit-vote system therefore causes the national electoral vote to
be so unrelated to the popular vote that it unreasonably burdens efforts of
citizens of different states to join in concerted political activity to bring
about the election of a person of their mutual choice, a right reserved to
them by the Ninth and Tenth Amendments to the Constitution. The votes
for state winners are combined nationally on an exaggerated basis while
the votes for state losers are isolated within their states and excluded from
the national count. This national distortion of the effects of individual
votes both abridges the right to engage in national political activity and
denies Plaintiffs citizens due process of law in violation of the Fifth and
Fourteenth Amendments. It also denies them equal protection of the laws
and abridges citizens privileges of voting for national officers in violation
of the Fourteenth Amendment. This interstate wrong also violates
principles of equity enforceable in actions between states.
13.
The state unit-vote system debases the national voting rights and political
status of Plaintiffs citizens and those of other small states by
discriminating against them in favor of citizens of the larger states. A
citizen of a small state is in a position to influence fewer electoral votes
than a citizen of a larger state, and therefore his popular vote is less sought
after by major candidates. He receives less attention in campaign efforts
and in consideration of his interests. Conversely, members of the
electorates of the larger states are each in a position to influence more
electoral votes and are enabled by the state unit system to play a larger
political role and to gain special influence in matters of national policy. A
resultant further consequence of the state unit system is that it
discriminates against citizens of smaller states by affording to citizens of
larger states a disproportionate opportunity to obtain election to the
Presidency. Attached hereto as Exhibit E is a table showing the number of
Presidents elected from each state. The states of New York, Ohio,
Massachusetts and Virginia have seen twenty-one of their citizens elected
to the office of President for thirty terms with service totaling 111 years.
(All elections of Virginians occurred prior to the Civil War when it was
relatively a large state.) Plaintiff and thirty-five other states, including
eight of the thirteen original states, have never had one of their citizens
elected President. The state unit-vote system and the strategic importance
which it gives larger states has generally prevented both major parties
from nominating smaller states citizens for both the Presidency and
Vice-Presidency. Attached hereto as Exhibit F is a list of the Democratic
and Republican nominees in each of the 25 elections conducted during the
past century, showing the home state of each candidate. The attached
Exhibit G then lists each state and shows the number of instances in which
their citizens have been nominated by either of the two parties for
President or Vice-President.
15.
The state totals in Exhibit G establish the favored position of large states
citizens under the state unit system. New York was named first as a
defendant to this action because it is the largest electoral unit, with 43
electoral votes as contrasted to Plaintiffs three, and its citizens have been
the chief beneficiary of the state unit system. Sixteen of the two parties 50
nominations for the Presidency from 1868 through 1964 have gone to
New Yorkers. Of the total of 100 nominations for President and
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initially adopting the state unit system, individual states will not
voluntarily adopt any alternative designed to cause their electoral votes
to be more representative of the popular will.
2.
3.
4.
5.
Ordering such other and further relief as may be found to be equitable and
appropriate in the circumstances.
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