[Vision2020] Harvard Law Prof. Lessig: The Equal Protection argument against “winner take all” in the Electoral College

Ted Moffett starbliss at gmail.com
Mon Oct 9 21:58:58 PDT 2017

The electoral college is very difficult to do away with.  But there are
several options for keeping it, and making presidential elections closer to
a one person one vote outcome.  The National Popular Vote Interstate
Compact is one effort:http://www.nationalpopularvote.com/But according to
the article partially pasted-in below, if all states had proportionally
allocated electors to the electoral college, Clinton, who won the popular
vote by over 2.8 million, would have won over Trump 270 to 263.  Nebraska
and Maine already proportionally allocate electors under the current system.
There is an effort underway to argue before the US Supreme Court that the
winner take all allocation of electoral votes is unconstitutional:

The US Constitution does grant electors to states in an unequal manner,
given population of each state. To quote the article below, "California has
a population that is 66x Wyoming, but only gets 18x the electoral college
votes" But the "winner take all" allocation of electors from states is not
in the US Constitution, says Lessig.
This issue can get very complicated.  But some kind of reform of the
electoral college is needed to avoid what has happened twice in the past  5
elections:  the loser of the popular vote becomes president!
Vision2020 Post: Ted Moffett
Lessig includes an article from attorney Jerry Sims arguing that the state
winner take all allocation of electors violates the Fourteenth  Amendment
equal protection clause.

The Equal Protection argument against “winner take all” in the Electoral

In 2000, Republican lawyers, desperately seeking a way to stop the recount
in Florida, crafted a brilliant Equal Protection argument against the
method by which the Florida courts were recounting votes. Before that
election, no sane student of the Constitution would have thought that there
was such a claim. When the claim was actually made, every sane lawyer (on
Gore’s side at least) thought it was a sure loser. But by a vote of 7 to 2,
the Supreme Court recognized the claim, and held that the Equal Protection
Clause regulated how Florida could recount its votes. That conclusion led 5
justices to conclude the recount couldn’t continue. George Bush became

I’ve been struck in this election cycle by just how timid Democrats have
been about thinking in the same way. I’m not (yet) saying they necessarily
should. But it is striking to see how committed they are to allowing this
train wreck to occur. And more surprisingly, how little careful attention
has been given (at the top at least) to just how vulnerable—given *Bush v.
Gore*—the current (system for counting votes in the) electoral college is.

Most people, even Dems, can’t seem to allow themselves to even think about
a constitutional challenge to the Electoral College — because they’re
convinced our current Electoral College system is embedded in the
Constitution. So when someone says, “what about one person, one vote,” they
respond, “it’s the Constitution that creates this inequality—just as with
the Senate—and the Court is not going to overrule the Constitution.”

*Yet that response misses a critical point.*

Yes, the Constitution creates an inequality because of the way it allocates
electoral college votes. A state like Wyoming, for example, gets 3
electoral votes with a population of less than 600,000, while California
gets 55 electoral votes with a population of more than 37 million. Thus,
while California has a population that is 66x Wyoming, but only gets 18x
the electoral college votes.

But the real inequality of the electoral college is created by the “winner
take all” (WTA) rule for allocating electoral votes. WTA says that the
person who wins the popular votes gets all the electoral college votes for
that state. Every state (except Maine and Nebraska) allocates its electors
based on WTA. But that system for allocating electoral votes *is not
mandated by the Constitution*. It is created by the states. And so that
raises what should be an obvious and much more fiercely contested question—*why
isn’t WTA being challenged by the Democrats in this election*?
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