Reprinted with permission from AlterNet.
Harvard law scholar and democracy reformer Larry Lessig has launched his latest David-vs.-Goliath fight to change one of the most unfair, unequal and seemingly invincible pillars of presidential elections: the Electoral Collegeâs winner-take-all system of awarding votes in 48 states.
âBeginning today, in four states across the country, lawsuits will be filed to challenge the way presidential electors are selected in America,âÂ he wrote on Medium.com. âThe plaintiffs in these suits charge that the ‘winner-take-all’ systemâthe system by which the candidate who wins the popular vote in a state gets all of the electoral college votes in that stateâviolates both the 14th Amendmentâs principle of ‘one person, one vote,’ and the Free Speech Clause of the First Amendment.â
Lessig and a legal team lead by David Boies, who represented Democrat Al Gore before the U.S. Supreme Court in 2000 (when the Court stopped the Florida recount, making Republican George W. Bush president), filed suits in four states to challenge their winner-take-all Electoral College votes. (In Maine and Nebraska, presidential electors are chosen in districts. To elect the president, 270 Electoral College votes are needed.)
âTwo of the lawsuits filed today are in traditionally ‘blue’ states âMassachusetts and California. Two are in ‘red’ statesâTexas and South Carolina,âÂ Lessig explained. âThe plaintiffs in each state include a mix of ordinary citizens as well as more well known citizens. In Massachusetts, former Governor William Weld is a plaintiff. In California, the lead plaintiff is the popular actor and comedian, Paul Rodriguez. In Texas, the lead is the largest Latino membership organization in America, LULAC. LULAC is joined by an incredible mix of plaintiffs in Texas, from civil rights activists who father marched with Dr. King, to one of Texasâ most prominent constitutional scholars, Sanford Levinson.â
Lessigâs court filings were not well received in the insular world of election law bloggers and academics.
âOf course, part of litigation like this is theatrical,â concluded Derek T. Muller, a law professor at Pepperdine University School of Law, on his blog,Â Excess of Democracy. âAnother part of litigation like this is to get the Supreme Court to address the merits of the dispute, even if lower courts ought, under existing precedent, summarily dismiss such claims. But, time will tell whether this effort is any more successful than the many, many failed efforts that have gone before.â
âThe complaint claiming that the winner-take-all by state allocation of electoral college votes is unconstitutional (despite a 1969 Supreme Court summary affirmance suggesting otherwise) is….wait for it…Bush v. Gore,âÂ tweeted Rick Hasen, a University of California Irvine law professor who curates the nationâs most widely readÂ election law blog.
Hasenâs snarky tweet is a bit of lawyerly insider ball. The argument Lessig and Boies put forth is that winner-take-all systems not only reinforce inequalities between differently populated states, but cause the losing sideâs votes in those states to be discarded. They say it violates prior Supreme Court rulings that sought to treat all votes equally, including the 2000 decision,Â Bush v. Gore. âOn that standard, the Florida recount failed the one person, one vote principle,â LessigÂ explained.
Many legal experts, election officials, and of course, Democrats, were mortified byÂ Bush v. Gore,Â saying its reasoning was deeply twisted. The Court’s majority saw that different Florida counties had slightly differing procedures to accept or reject ballots; the local officials in charge werenât robots. Thus, it stopped a recount, one seeking to ensure all votes were counted, under the reasoning that candidate George W. Bush was harmed if all the ballots werenât treated the same. So Hasen is raising his legal eyebrows at Lessigâs use of one of the most anti-democratic Supreme Court rulings ever, to attack the Electoral College and defend one-person, one-vote.
But beyond the pushback, which he surely anticipated, Lessig makes other points spotlighting undemocratic features of the Electoral College and possible remedies. Until the U.S. Constitution is amended, the Electoral College is here to stay, heÂ noted, because itâs âwritten into the Constitution.â Whatâs not written into the Constitution, however, are âthe systems that the states use to allocate electors within the Electoral College.â
âThose systems are instead created by state law,â Lessig noted, arguing, âAnd as the Supreme Court has held over and over again, those presidential selection systems are subject to the principle of âone person, one vote.ââ
On the surface, Lessig is absolutely correct. Just as his criticism of how the Electoral College distorts presidential campaigns is also indisputable.
âIn 2016, 99% of [presidential] campaign spending was in 14 states,â Lessig wrote. âThose states, representing just 35% of America, are older and whiter than the rest of America. No doubt, they deserve to be represented just as anyone else does. They donât deserve to be represented anyÂ moreÂ than anyone else does. Yet as researchers have demonstrated, those battleground states get more money, per capita, from the federal government. So too do they get more regulatory attention. No one, whether a Democrat or a Republican, should support a system that produces such inequality.â
From a public education standpoint, or popularizing the worst features of American democracy that should be fixed, Lessig is on moral high ground. Whatâs tricky is finding a path through the thicket of Supreme Court rulings to build an argument that carries these lawsuits to the high court and raises the correct issues that point to the desired solution. (The paucity of such rulings is what makes other scholars skeptical: hence, Lessigâs reliance onÂ Bush v. GoreÂ and Hasenâs snarky tweet.)
TheÂ lawsuitÂ filed in U.S. District Court in Massachusetts is seeking a ruling that declares that stateâs winner-take-all system unconstitutional and orders its legislature to adopt âa valid method of selecting Electors.â Lessigâs team is making slightly different arguments in Texas and South Carolina, where they invoke the Voting Rights Act of 1965, which protects the âvoting pattern for minorities and historically excluded groups of citizens.â Their goal, however, is to get before the Supreme Court.
While that may take some time, if it happens at all, there’s another solution in Lessigâs Medium.comÂ essay: enough states joining an interstate compact to agree to award all of their Electoral College votes to their popular vote winner.
âWe certainly hope [the lawsuits] might shift the willingness of legislators of both parties to consider again the one simple solution to this system of inequality, theÂ National Popular Vote Interstate CompactÂ [NPV],â LessigÂ wrote. âWhen states representing 270 electors commit to this pledge, then their electors will be selected to vote for the winner of the national popular vote. So far, 11 states representing 165 electors, have committed to the initiative. States representing at least 105 more electors now must join for it to go into effect. NPV is the simplest solution to the one person, one vote problem that plagues the Electoral College. Indeed, it is the only solution, short of an amendment, that perfectly guarantees one person, one vote.â
But right now, the push for more states to join the National Popular Vote compact (thus far,Â all are blue) has bogged down, Lessig said, which means more pressure has to be applied; hence the litigation.
âWe canât sit around waiting until state legislators finally step up to defend the principle of citizen equality,â heÂ wrote. “Until the states have embraced NPV, we have to fight for equality in every forum we can. These lawsuits are the next battlefield in that fight.â
âThat, ultimately, is why I entered this struggle,â he continued. âAfter the 2016 election [where he ran for president], I helped foundÂ EqualCitizens.US. Our aim is to build recognition among citizens across the country of just how poorly our current political system lives up to the promise of equal political rights. Whether it is the way we fund campaigns, or gerrymander districts, or suppress votes, or elect our President: We have allowed our ârepresentative democracyâ to become fundamentally unrepresentative.â
As a moral leader and person of conscience, Lessigâs efforts are laudable. However, a clear moral compass doesnât steer one through the federal courts to win Supreme Court victories, which is where any Electoral College reform would ultimately be weighed. And thatâs where his lawsuits have prompted some scorn, at least initially.
âThere are different ways states might award electors (which I used toÂ project alternative electoral outcomesÂ in 2016),âÂ wrote Pepperdine Universityâs Muller. âBrenden Cline in 2017Â nicely summarizedÂ the series of major problems with this litigation. Itâs been argued and rejected before. Simply put, states have essentially plenary authority to choose the method of appointing electors, and the winner-take-all method has been around for 200 years, and used basically everywhere since the Civil Warâwith brief exceptions in Colorado in 1876 (legislative selection), Michigan in 1892 (district method), and Nebraska and Maine (district method) in recent years.â
Muller also noted that the National Popular Vote compact, should it reach a threshold where it has 270 Electoral College votes, would be fiercely challenged.
âI discuss this [state] plenary authority inÂ 2007Â andÂ 2008Â Election Law Journal pieces, which conclude that that plenary authority does not extend to states entering into interstate compacts with one another concerning the award of electorsâat least not without congressional consent. I also discuss it as an element of federalism inÂ Invisible Federalism and the Electoral College.â
But mostly, Muller said legal challenges seeking to overturn the Electoral College routinely come and go, always leaving the courtrooms defeated. âSince [2016âs] Election Day, a number of litigants–admittedly, mostly (if not all!) pro seâhave attempted to file just such challenges. Theyâve lost every time (0-6 by my count).â
Lessig pretty much admits this reality in his Medium piece, but says the effort must be made, even if the fight is a modern American version of David vs. Goliath.
âIt will be a long struggle in the courts to get the questions these cases raise resolved by the Supreme Court finally. But that fight is not just a legal battle,â he wrote. âMuch more important is building a movement of citizens, both Democrats and Republicans, who recognize just how we have allowed the principles of our representative democracy to be compromised by the politicians.â